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In re L.T.

Superior Court of Pennsylvania

April 7, 2017

IN THE INTEREST OF: L.T. AND D.T., MINOR CHILDREN ADJUDICATED DEPENDENT
v.
APPEAL OF: A.Z., NATURAL MOTHER APPEAL OF: A.Z., NATURAL MOTHER IN THE INTEREST OF: L.T. AND D.T., MINOR CHILDREN ADJUDICATED DEPENDENT

         Appeal from the Order Entered June 6, 2016 In the Court of Common Pleas of Erie County Civil Division at No(s): 25 and 26 2016.

          BEFORE: BOWES, OLSON AND STRASSBURGER, [*] JJ.

          OPINION

          BOWES, J.

         A.Z. ("Mother") appeals from the respective orders entered on June 6, 2016, wherein the juvenile court changed the permanent placement goals of her two children, L.T. and D.T., from reunification to adoption.[1] In addition, Mother appeals the June 16, 2016 order that awarded Erie County Office of Children and Youth Services ("CYS") authority to make all medical determinations, including end of life decisions, relating to D.T.[2] We reverse the permanency review order relating to L.T., dismiss the appeal from the order relating to D.T.'s end of life decisions, and remand for further proceedings.

         L.T. and D.T. were born during October 2014 and September 2015, respectively. D.T. died on July 15, 2016 as a result of non-accidental traumatic brain injuries sustained during February 2016, while in the care of N.T. ("Father").[3] Specifically, then-four-month-old D.T. sustained a skull fracture and hematoma on the right side of his brain. The child presented at UPMC Hamot in Erie, Pennsylvania, unresponsive and in critical condition due to elevated intracranial pressure. He was subsequently transferred to Children's Hospital in Pittsburgh. The physicians characterized D.T.'s injuries as near-fatal child abuse.

         CYS obtained protective custody of the siblings and filed petitions alleging that L.T. and D.T. were dependent under § 6302 of the Juvenile Act, in that they lacked proper parental care and control. On March 16, 2016, Mother and Father stipulated to the adjudications of dependency for the reasons that CYS stated in its petitions. Significantly, aggravated circumstances were neither alleged in the dependency petitions nor found by the trial court to exist against either parent.[4] The juvenile court awarded CYS legal and physical custody of the children. D.T. remained in a medically induced coma at Children's Hospital of Pittsburgh, where he was expected to remain hospitalized indefinitely. CYS placed L.T. in kinship care with her maternal grandmother ("Grandmother").

         The court-ordered permanency goal was reunification, and the juvenile court granted Mother a pair of two-hour supervised visitations with L.T. per week at Grandmother's home. However, Mother, who was recovering from an automobile collision that Father intentionally caused, was prohibited from residing in the home with her daughter. Mother was granted visitation with D.T. "as often as she is able to visit" the medical facility. Dispositional Order, 4/8/16, at 3. Although the Commonwealth had not yet leveled criminal charges against Father, the juvenile court suspended Father's visitation with D.T. indefinitely and precluded Father from supervised visitation with L.T. until he demonstrated compliance with the sobriety and parenting components of the court-ordered services. Prior to making any progress toward the visitation prerequisite, Father was arrested in the underlying criminal case and confined to county jail. Given the seriousness of the dependency case, the juvenile court fashioned an abbreviated calendar and scheduled the first permanency review hearing on June 1, 2016, approximately thirty days from the date of the dispositional order.

         At the outset of the June 2016 hearing, CYS noted the presence in the court room of an unidentified media outlet and objected to its participation in the closed juvenile proceeding. The respective guardians ad litem for both children, Mother, and Father all joined the agency's objection. The juvenile court overruled the collective objections noting that, "given the fact that this case already [garnered] a significant amount of media attention because of [Father's] criminal cases[, ]" no compelling state interest existed to close the court room. N.T., 6/1/16, at 4. Accordingly, the juvenile court permitted the media to attend the permanency review hearing. Id. at 6.

         Next, in addressing the proposed testimony of D.T.'s nurse regarding the child's status, treatment, and prognosis, the trial court noted, sua sponte, that it was contemplating changing both children's permanency goals from reunification to adoption. Specifically, the court stated, "The agency is recommending a goal of reunification, but from what I'm looking at in the summary [prepared by the CYS caseworker], I am not sure I'll go along with it. So for all intents and purposes this is a change of goal hearing." Id. at 7.

         During the hearing, CYS presented the testimony of Patty Bush, the CYS caseworker assigned to the family, and Tina Ferraro, the director of Project First Step, the organization tasked with providing Mother reunification and visitation services. As noted supra, D.T.'s nurse testified about his current condition, and Mother testified on her own behalf. Distilled to its essence, the combined testimony from the agency's two witnesses branded Mother as immature, possessing a mentality of entitlement, and dependent upon others for satisfying routine obligations. For example, expecting to be evicted from subsidized housing on the day of the hearing due to the non-payment of utilities, both witnesses stressed that Mother resided in squalor and lacked any concrete plans to obtain suitable housing. In sum, Mother did not demonstrate the urgency that Ms. Bush and Ms. Ferraro believed the situation demanded.

         However, the witnesses both testified that, while Mother's current situation remained unacceptable, she had made an effort toward reunification during the brief period that they were involved in the case. Specifically, Ms. Bush stated that Mother started, but had not yet completed, a psychological evaluation and parenting and domestic violence programs. Indeed, CYS's petition for a permanency hearing and the summary that Ms. Bush prepared for the juvenile court in anticipation of that hearing recommended that the agency continue providing Mother reunification services. During the hearing, however, she expanded the recommendation to include "looking for an adoptive resource for [L.T.]" Id. at 38.

         Similarly, Ms. Ferraro indicated that Mother had not progressed in the one month that she had been in the program. She had various interactions with Mother, including the intake interview and two supervised visitations with L.T. Ms. Ferraro characterized Mother's demeanor as agitated and defensive, and she noted her primary concern that Mother appeared to lack motivation. Nonetheless, Ms. Ferraro did not recommend terminating services at that juncture. To the contrary, she stated, "I will work with her as long as she's willing to work on herself." Id. at 72.

         At the close of evidence, the juvenile court invited brief argument about the children's permanency goals. It stated, "I'm certainly not leaving the goal of reunification." Id. at 101. Mother and Father persisted in arguing that reunification was an appropriate goal in light of the fact that the family had only been in service for two and one-half months. Similarly, L.T.'s guardian ad litem recommended concurrent goals of reunification and adoption because the dependency proceeding was in an early stage. Id. at 105 ("Having said that, we are only two and a half months in[.]"). D.T.'s guardian ad litem advocated changing the goals to adoption. Id. at 105. Likewise, while CYS's pre-hearing filings recommended continuing the goals of reunification, following the hearing, the agency argued to change the goals to adoption. Thereafter, the trial court announced its intention to change the children's permanency goals to adoption. Two days later, the juvenile court entered a permanency review order memorializing the goal change and directing CYS to cease its services to Mother, including visitations, and to pursue the termination of parental rights. Mother filed a timely appeal and a concomitant statement of errors complained of on appeal pursuant to Pa.R.C.P. 1925(b).

         Meanwhile, as the dependency matter proceeded toward the permanency hearing that resulted in the goal change, D.T.'s guardian ad litem, Stephen George, Esquire, filed and withdrew multiple petitions seeking the juvenile court's guidance concerning D.T.'s end-of-life decisions. Attorney George filed the most recent iteration of his entreaty on June 10, 2016, with the benefit of the medical testimony presented during the permanency hearing. During the ensuing hearing on Attorney George's petition, it was revealed that D.T. was technologically dependent, i.e., required specialized medical equipment for life support, but he was not in an emergent state that required "heroic efforts . . . to sustain his life." N.T., 6/16/16, at 5. Albert Veverka, Esquire, the attorney representing Children's Hospital of Pittsburgh, characterized D.T.'s condition as neither requiring nor precluding a do not resuscitate ("DNR") order. He summarized the perspective of the supervising physician, Robert Clark, M.D., as follows: "If . . . a mother or father . . . came . . . and said . . . [']I want a DNR, ['] [Dr. Clark] would say . . . [']Okay, we can do that.[']" Id. However, "[i]f the same situation arose and the parents . . . said . . . [']I don't want a DNR at this point, [Dr. Clark] would say . . . [']Okay, I respect that [too']. He is of the opinion that[, ] at this point in time[, ] we're not in that emergent circumstance where a DNR is absolutely necessary or absolutely not necessary." Id.

         At the close of the hearing, the juvenile court entered an order confirming that the prior award of legal custody in favor of CYS included the responsibility over "all medical decisions, . . . including end-of-life decisions, in the best interest of the dependent child, [D.T.]." Trial Court Order, 6/16/16, (unnumbered at 2). The juvenile court reasserted that Mother was not only prohibited from contacting D.T. directly, but that she also was precluded from contacting Children's Hospital for updates on his condition. Eventually, the juvenile court relented and permitted Mother one final visitation with her son prior to his death. Trial Court Order, 7/14/16. Mother filed a timely appeal from the June 16, 2016 order, which we consolidated with her earlier appeal from the order changing the children's permanency goals to adoption.

         Mother presents five issues for our review:

A. Whether the juvenile court committed an abuse of discretion and/or error of law when it permitted, over unanimous objection, the presence of the media at the permanency review hearing held on June 1, 2016.
B. Whether the juvenile court committed an abuse of discretion and /or error of law when the agency petitioned for a change of goal and the juvenile court considered the change of goal without providing adequate notice to the parties that a change of goal was to be contemplated at the permanency review hearing held on June 1, 2016.
C. Whether the juvenile court committed an abuse of discretion and/or error of law when it determined the current permanency goal of reunification was no longer feasible and dispensed with the goal of reunification after only one (1) month and twenty-seven (27) days when the record failed to support a conclusion that it was in the best interest of the minor child to change the goal.
D. Whether the juvenile court committed an abuse of discretion and/or error of law when it determined that visitation should cease between the appellant and the minor children following the change of goal to adoption when the record failed to support a conclusion that it was in the best interests of the minor children to no longer have visitation with their mother.
E. Whether the juvenile court committed an abuse of discretion and/or error of law when it denied the appellant the opportunity to participate in the medical decision making for the minor children. In the alternative, whether the juvenile court was manifestly unreasonable when it denied the appellant the opportunity to participate in the medical decision making for the minor children. In the alternative, whether the juvenile court deprived the appellant of her rights under the United States and Pennsylvania constitutions when it denied her the right to participate in the care and control of her minor children in violation of due process of law.

         Mother's brief at 3.

         At the outset, we address whether the trial court erred in permitting the media to attend the June 1, 2016 permanency review hearing.[5] We review the juvenile court's decision for an abuse of discretion. In re M.B., 819 A.2d 59, 61 (Pa.Super. 2003) ("When an appeal challenges a trial court's decision to grant or deny access to judicial proceedings, we will reverse only if we find that the trial court abused its discretion.").

         Pursuant to 42 Pa.C.S. § 6336(d), except for a declaration of contempt of court or one of the enumerated circumstances that are implicated in delinquency proceedings, "the general public shall be excluded from hearings under this chapter." The provision continues, "Only the parties, their counsel, witnesses, the victim and counsel for the victim, other persons accompanying a party or a victim for his or her assistance, and any other person as the court finds have a proper interest in the proceeding or in the work of the court shall be admitted by the court." Id. Hence, it is beyond cavil that the statutory framework promotes confidentiality.

         In In re M.B., supra, this Court addressed whether the press could access a dependency proceeding. Citing the Juvenile Act approvingly, we found that § 6336(d) "demonstrate[d] our legislature's compelling interest in safeguarding children involved in juvenile proceedings." Id. at 62. However, referring to an official comment to § 6336(d) specifying that reporters were within the class of people with a "proper interest" in attending dependency proceedings, we observed that a juvenile court may elect at its discretion to grant the press access. Id. at 65. We found a rebuttable constitutional presumption that juvenile court proceedings, like most other judicial proceedings, are open to the public, and concluded that juvenile courts "possess an inherent power to control access to their proceedings and may deny access when appropriate." Id. at 60, 62-63. However, we also recognized that the rebuttable presumption of openness is not absolute, and the juvenile courts may still deny access if they find that confidentiality serves an important governmental interest and no less restrictive means exist to serve that interest.

         We explained the applicable resolution of the contrasting dynamics between the presumption of openness and the court's inherent power to control access as follows:

In this case, where the constitutional presumption of openness applies and where the trial court has exercised its discretion to close the proceedings, we employ a constitutional analysis [to determine whether the court's decision was an abuse of discretion]. Once an interested party, such as the press, seeks access to such proceedings, the party seeking to keep the proceedings closed may rebut the presumption of openness by demonstrating that: (1) the denial of public access serves an important governmental interest, and (2) no less restrictive means to serve that interest exists. To satisfy these requirements, the party seeking closure must demonstrate that the material is the kind of information that the courts will protect and that there is good cause for the order to issue. A party establishes good cause by showing that opening the proceedings will work a clearly defined and serious injury to the party seeking closure. We have emphasized that only a compelling government interest justifies closure and then only by a means narrowly tailored to serve that interest. Ultimately, the decision whether to grant or deny public access is within the sound discretion of the trial court.

Id. at 63-64 (internal citations and quotations omitted). In sum, we concluded that the protection of minors from psychological and emotional harm and the trauma and embarrassment associated with testifying in public were compelling interests that militated in favor of privacy concerns. Id. at 64, 65. We also reasoned that, unlike delinquency proceedings, dependent children have not brought attention upon themselves and therefore "the public's interest is less keen than it is in delinquency proceedings." Id. at 65 n.5. In addition, this Court observed the informal and non-adversarial nature of dependency hearings and highlighted the chilling effect that publicity associated with open proceedings would have upon the testimony of caseworkers and service providers. Id. at 64.

         In addressing this issue in its Pa.R.A.P. 1925(a) opinion, the juvenile court concluded that Mother "failed to show a compelling reason why the hearing ought to be closed." Trial Court Opinion, 8/10/16, at 16. The court initially reasoned that Mother did not have standing to challenge the media's presence on behalf of the children, presumably because they had been adjudicated dependent, and that she failed to demonstrate an injury to herself. Thereafter, the court provided an alternative basis to reject Mother's argument on its merits, which was the children's ages.

         The juvenile court's rationale demonstrates its misapprehension of the relevant concerns regarding the children's interests that we stressed in In re M.B., supra. First, despite the juvenile court's suggestion to the contrary, Mother was not required to assert that she would suffer harm as a result of opening the proceedings. As we explained supra, the focus of the constitutional analysis is the effect of the media's intrusion upon the children. Therefore, any reference to Mother's privacy rights is misplaced. Second, regardless of the dependency adjudication, Mother's parental rights remained intact. Thus, she retained a fundamental interest in the care, custody, and control of L.T. and D.T., including the preservation of privacy concerns and the prevention of psychological and emotional harm flowing from the invasion of their privacy rights. Hence, we reject the juvenile court's conclusion that Mother lacked standing to object to the media's presence at the dependency hearing.

         Moreover, we also find unpersuasive the trial court's alternative argument addressing the merits of Mother's complaint. Essentially, the trial court determined, "given the media attention this case received because of the criminal charges filed against the father, and the young age of the children, allowing the press to be present at the review hearing posed little or no danger their privacy interests would be invaded more than had already taken place." Trial Court Opinion, 8/10/16, at 16. Noting the children's respective ages and the fact that D.T. is now deceased, the juvenile court reasoned that the children would not suffer psychological and emotional harm as a result of the media's intrusion. For the following reasons, we disagree with the juvenile court's conclusion that the intrusion would not cause psychological or emotional harm.

         Preliminarily, we note that this case is procedurally defective. Typically, in situations involving hearings that are closed to the public by statute, the party seeking access to the closed proceedings files a petition to open the hearing, and upon notice of the petition, the party seeking to keep the record closed is tasked with rebutting the presumption of openness under the two-pronged test we discussed supra. See e.g., In re M.B., supra; In re J.B., 39 A.3d 421 (Pa.Super 2012). This procedure did not occur in the case at bar.

         Presently, the still unidentified media outlet neglected to file a petition announcing its request to open the closed proceeding. It just appeared at the scheduled permanency review hearing. Then, without prior notice to the parties, the juvenile court acknowledged the media's presence and asked the parties if they wanted to address that issue. Thereafter, the parties uniformly objected to the media's participation, and the court questioned, "How do we know really know that the media is going to invade the privacy of the children. . . [?]" N.T., 6/1/16, at 5. Then, after rebuffing an attempt by the guardian ad litem for L.T. to explain the legislatures' interest in enacting the confidentiality component of § 6336(d), the juvenile court invoked its interpretation of In re M.B., and purported to balance the children's privacy rights against the public interest in disclosure and determined, "given the attention the media has already given to this case, [the collective objections do not demonstrate] how the public interest is overridden here." N.T., 6/1/16, at 6. Having found that the public interest prevailed over the children's privacy rights, the juvenile court did not confront whether a less restrictive means existed to protect the children's privacy rights other than the total closure of the dependency proceedings.

         The procedural defects in this case are manifest. By failing to require the media to provide a written petition to open the dependency hearing, or even issue notice of its request, the juvenile court denied the parties to the dependency proceeding an opportunity to prepare a measured response that addressed the relevant aspects of the constitutional analysis. The juvenile court's abridged, impromptu discussion regarding the merits of opening the dependency hearing to the media was insufficient in light of the nuanced evaluation of the countervailing interests that we outlined in In re M.B., and ultimately proved to be a disservice to the children's privacy interest.

         Moreover, we reject the juvenile court's argument that publicizing the dependency proceedings was harmless due to potential dissemination of information during Father's corresponding criminal matter. At its core, the trial court's reasoning is premised upon the notion that the related criminal case had revealed all of the facts previously hidden. The logical foundation of that rationale is faulty. First, the premise ignores the reality that the majority of the information discussed during closed permanency review hearings is wholly irrelevant to the Commonwealth's case against Father or his defense, and therefore, it would not be disclosed in the criminal proceedings. For instance, pursuant to § 6351(e), permanency review hearings address, inter alia, the feasibility and compliance with the permanency plan, the date by which permanency goals might be achieved and whether placement continues to be best suited to the child's safety, protection and physical, mental and moral welfare. In addition, the juvenile court must also determine the appropriateness and continuing necessity for placement, the appropriateness of the current placement goal, and the date by which the placement goal might be achieved. In scenarios where the children do not testify, this information is gleaned from the testimony provided by parents, foster parents, caseworkers and service providers.

         Father's criminal case, which the juvenile court cited as the main reason for permitting the media's participation in the dependency proceedings, would not reveal these confidential aspects of L.T.'s and D.T.'s lives because they are irrelevant to the criminal matter. As Mother accurately notes, this Court rejected the juvenile court's precise rationale regarding the superseding effect of concomitant open criminal proceedings on a dependent child's privacy rights, and it characterized the assertion as "spurious." In re M.B., supra at 64. We explained, "While it is true that the children's names and certain details about their family life have been publicized, we believe . . . that the fact that they have received some publicity enhances their need for privacy now." Id. In addition we endorsed the trial court's observation, "the more information that is revealed, the more stress the children experience, the more they are stigmatized, embarrassed, and subject to whispers and speculation." Id. at 65 (citation omitted).

         Stated plainly, the existence of a related criminal matter is not the dispositive consideration. As noted, few of the highly personal facts that are essential to the permanency review determination in this case would be subject to disclosure during Father's criminal proceedings. Furthermore, the harm stemming from the continued dissemination of this delicate information in open dependency proceedings overrides the public's interest in disclosure. We stressed this latter concept in outlining the parameters of the two-prong constitutional analysis in In re M.B., supra at 64 quoting In re T.R., 556 N.E.2d 439, 451 (Oh. 1990), "Intense publicity surrounding the events which have brought a child into the juvenile court may psychologically harm the child, making it more difficult, if not impossible, for the child to recover from those events." In addition to highlighting the chilling effect that open dependency hearings would have upon a witness's willingness to speak candidly about the child's best interest, this Court noted that publicity "is inconsistent with the nonadversarial nature of juvenile proceedings." Id. at 64 (quoting San Bernardino County Dep't. of Pub. Social Servs. v. Superior Ct., 283 Cal.Rptr. 332 (Cal.App. 1991) ("Private hearings were not intended to simply avoid publicity and its resulting stigma, but were also part and parcel of the informal and nonadversarial nature of juvenile court hearings.")); see also T.R., 556 N.E.2d at 448-49 (juvenile courts differ from courts of general jurisdiction in that "[h]earings are informal, and based on an inquisitorial model rather than an adversarial one").

         For all of the foregoing reasons, we find that the juvenile court abused its discretion in permitting the unidentified media member's access to the closed dependency proceedings without first requiring a formal petition, notice, and the opportunity for the parties to prepare an informed response to satisfy their burden of persuasion regarding both prongs of the constitutional analysis. Moreover, the juvenile court exaggerated the significance of Father's criminal trial in reasoning that the public had already garnered much of the confidential information that would be disclosed in the ongoing dependency proceedings. Thus, we direct the juvenile court to close the dependency proceedings consistent with § 6336(d). If, upon subsequent petition, notice, and measured argument beyond the existence of a related criminal matter, the juvenile court finds that the presumption of openness is unrebutted, the court may enter an appropriate order at that juncture.

         Next, we address Mother's contention that the trial court erred in changing the children's permanent placement goals from reunification to adoption. The appropriate standard of review of a juvenile court's permanency determination is as follows:

In cases involving a court's order changing the [court-ordered] goal . . . to adoption, our standard of review is abuse of discretion. To hold that the trial court abused its discretion, we must determine its judgment was manifestly unreasonable, that the court disregarded the law, or that its action was a result of partiality, prejudice, bias or ill will. While this Court is bound by the facts determined in the trial court, we are not tied to the court's inferences, deductions and conclusions; we have a responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Therefore, our scope of review is broad.

In re S.B., 943 A.2d 973, 977 (Pa.Super. 2008) (citations omitted); see also In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

         In In re A.K., 936 A.2d 528, 534 (Pa.Super. 2007), this Court stressed that the focus of dependency proceedings is upon the best interest of the children and that those considerations supersede all other concerns, "including the conduct and the rights of the parent." Again, in In the Interest of D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009), we explained, "In a change of goal proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent's rights are secondary." Id. Likewise, this Court has held, "a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting." In re N.C. , 909 A.2d 818, 824 (Pa.Super. 2006) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super. 2003)).

         With those principles in mind, we outline the relevant considerations set forth in the Juvenile ...


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