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In the Interest of: W.M.

March 29, 2012

IN THE INTEREST OF: W.M., J.M., T.M., M.M., M.M., MINOR CHILDREN, APPEAL OF: WASHINGTON COUNTY CHILDREN & YOUTH SOCIAL SERVICE AGENCY


Appeal from the Order entered on April 8, 2011, in the Court of Common Pleas of Washington County, Criminal Division, Nos. CP-63-DP-0000003-2011, CP-63-DP-0000004-2011, CP-63-DP-0000005-2011, CP-63-DP-0000006-2011, and CP-63-DP-0000007-2011

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

J. A34003/11

BEFORE: MUSMANNO, ALLEN and MUNDY, JJ.

OPINION BY MUSMANNO, J.

Washington County Children and Youth Social Service Agency ("CYS" or "Agency") appeals from the Order finding that CYS was not eligible for federal funding for its foster care maintenance program because it did not use reasonable efforts to prevent placement of five minor children: fourteen- year-old male, W.M.; ten-year-old female, J.M.; six-year-old male, T.M.; four-year-old female M.M.; and three-year-old female, M.M. (collectively "the Children") until January 14, 2011, the time that the trial court entered an Emergency Shelter Order.*fn1 We affirm the trial court's decision that CYS was ineligible for federal funding for its foster care maintenance program prior to January 14, 2011, albeit on different grounds than set forth by the trial court.

The trial court set forth the factual background and procedural history of this appeal as follows:

On January 27, 2011, the Washington County Juvenile Master, Dennis R. Paluso, Esquire, conducted a shelter hearing on this matter. The Guardian Ad Litem for the [C]hildren and attorneys for the Agency and for the [C]hildren's Father appeared at the hearing. Testimony offered at the hearing revealed that on December 17, 2010, the [C]hildren were removed from Father's care pursuant to a Voluntary Placement Agreement due to deplorable housing conditions. Upon inspection, the caseworker discovered that the basement of the house was flooded, that the [C]hildren were without clean clothes and that there was minimal food in the home. All of the [C]hildren's clothes looked to have mold and mildew on them. The [C]hildren were disheveled [and] wearing clothes that did not fit them. The soles of their shoes were falling off. The three[-]year[-]old and four[-]year[-]old girls were potty trained and had no underwear and no socks. In addition, the caseworker found dog feces throughout the home, including in the [C]hildren's bedrooms and the kitchen, and two dead puppies on the porch. In addition, the family had an extensive history with Greene County's Children and Youth Services Agency for the same issues, [i.e.,] deplorable housing and lack of supervision. After inspecting the conditions of the home and the [C]hildren, the caseworker then contacted Father and offered him a Voluntary Placement Agreement, and stated that if he did not cooperate, the other option would be the Agency seeking an Emergency Order. Consequently, Father agreed to sign the Voluntary Placement Agreement. Accordingly, three of the five children were placed in Agency foster care and the remaining two children were placed in relative placement with the paternal grandfather. By its terms, the Voluntary Placement Agreement would be effective for thirty days, and required [Father] to "clean up the house." No family services were offered nor was a care plan provided.

The Agency had no further contact with the family until January 13, 2011, when the caseworker was scheduled to inspect Father's home. On January 13, 2011, the caseworker attempted to conduct the inspection but Father was unavailable as he was called to work. The caseworker spoke to Father[,] who claimed that the home would be suitable for the [C]hildren to return. However, the caseworker testified that based on the family's history, "It just seems like they're unable to maintain the housing." ... [B]ecause the caseworker did not inspect the home between the time of removal and the expiration of the [v]oluntary [p]lacement [a]greement, and because the caseworker was not convinced that the family could maintain the home, the Agency sought and obtained an Emergency Shelter Order on January 14, 2011.

A Shelter Hearing was held on January 27, 2011, before Master Paluso. At the conclusion of the testimony, the Master found that there were sufficient facts to support shelter care placement for the five children as the [C]hildren were without clean clothing, there was not adequate food in the house and that there were dog feces throughout the home, including in the kitchen and in the [C]hildren's bedrooms. In addition, the Master found that there was still water in the basement, that there were two dead puppies on the back porch and that another female dog was emaciated, requiring the Agency to contact the local Humane Society. The Master also found that the Agency did not offer Father any services nor was a case plan prepared pursuant to the [v]oluntary [p]lacement [a]greement, which was found to be standard Agency practice. Additionally, the Master found that after the [v]oluntary [p]lacement [a]greement was signed, the Agency's only contact with the family was on January 13, 2010, when the caseworker spoke to [F]ather via telephone, after she learned that Father was unavailable for the scheduled inspection of the home because Father had been called into work. Finally, Master Paluso found that it was contrary to the best interests and welfare of the [C]hildren to be returned home and that they were safe in their current placements. At the conclusion of the Shelter Hearing, the Master deferred the determination of whether the Agency used reasonable efforts to prevent placement outside the home and whether or not exigent circumstances existed until the adjudicatory hearing.

On March 22, 2011, the Juvenile Master conducted the adjudicatory hearing and a hearing on reasonable efforts. At this hearing, Joyce Hatfield-Wise, attorney for the Agency, John Richards, Guardian Ad Litem for the [C]hildren, Eric Isenhart, attorney for . . . Father, Jessica Roberts, attorney for [H.H.], the mother of [T.M., M.M.], and [M.M.], and Keith Emerick[,] attorney for [D.M.], the mother of [W.M.] and [J.M.], were present with their respective clients. During this hearing, counsel for the Agency argued that due to the fact that the Voluntary Placement Agreement was about to expire on January 16, 2011, this fact alone constituted exigent circumstances and that an Emergency Shelter Order was necessary to protect the [C]hildren. In response, counsel for Father argued that the Agency failed to offer adequate services or any services to Father prior to seeking the Emergency Shelter Order on January 14, 2011, and that the expiration of the Voluntary Placement Agreement did not, in and of itself, constitute exigent circumstances. Following argument, the Master issued a Recommendation and found that under the circumstances of this case, taking into consideration the family history of deplorable conditions in [Washington] County and Greene County and the dangerous condition of the home, that [sic] the Agency did not use reasonable efforts to prevent placement of the [C]hildren outside the family home up until January 14, 2011, at the time [the trial court] entered an Emergency Shelter Order, but used reasonable efforts after that date.

In addition, the Master found that the parties had agreed that the [C]hildren shall be placed under the care, custody and supervision of [CYS]. The Master also found that two of the [C]hildren should be placed in relative care placement with [the] paternal grandfather and that the remaining three children be placed in foster care placement. Finally, the Master recommended that Father participate in homemaker services as recommended by the Agency and that a hearing be scheduled within 90 days.

Trial Court Opinion, 6/16/11, at 1-5 (footnotes omitted).

After reviewing the record and the Master's recommendation, the trial court approved and adopted the Master's Recommendation in an Order dated March 31, 2011, and entered on April 8, 2011.

On May 6, 2011, CYS filed a timely Notice of appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. On appeal, CYS raises the following questions for our review:

1. Whether the trial court abused its discretion or erred as a matter of law when it misapplied or improperly considered regulatory provisions concerning voluntary placement agreements and family service plans with the standard to be considered upon the emergency removal of children[?]

2. Whether the trial court abused its discretion or erred as a matter of law when it failed to find that exigent circumstances existed, including the father's own actions of canceling a scheduled home visit and the weekend expiration of the voluntary placement agreement, which prevented the agency from being able to ensure the safety of the minor children and under the totality of the circumstances necessitated the request and entry of an Emergency Shelter Order[?]

3. Whether the trial court abused its discretion or erred as a matter of law when it failed to recognize the voluntary placement agreement and the provision of Agency casework services as a meaningful, legitimate, and reasonable effort to prevent or eliminate the need for placement[?]

CYS Brief at 4.

Our standard of review in dependency cases is as follows:

[W]e must accept the facts as found by the trial court unless they are not supported by the record. Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In re J.P., 998 A.2d 984, 987 (Pa. Super. 2010) (citation omitted); see also In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). "Additionally, the master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties." Taper v. Taper, 939 A.2d 969, 973-74 (Pa. Super. 2007); see also Mintz v. Mintz, 392 A.2d 747, 749 (Pa. Super. 1978).

We will address CYS's first and third claims together as both concern voluntary placement agreements. In its first claim, CYS contends that the trial court misapplied or improperly considered regulatory provisions concerning voluntary placement agreements and family service plans, such that CYS's eligibility for federal funding for its foster care program was impacted. CYS Brief at 10. CYS argues that CYS's eligibility for the federal foster care maintenance payment program is conditioned upon the State's adherence to the requirements set forth at section 672 of the federal Adoption Assistance and Child Welfare Act of 1980 ("AACWA").*fn2 CYS Brief at 10-11. CYS asserts that because the Children in the present matter were initially placed in its care under a voluntary placement agreement entered into by Father, there was no need for a judicial determination of reasonable efforts to preserve the family on the part of CYS under the ...


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