In the Interest of: K.M. Appeal of: CYS ( 2023 )

J-A18030-23
2023 PA Super 217IN THE INTEREST OF: K.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: WASHINGTON COUNTY :
CHILDREN AND YOUTH SOCIAL :
SERVICE AGENCY :
:
: No. 159 WDA 2023
Appeal from the Order Entered January 30, 2023
In the Court of Common Pleas of Washington County Juvenile Division at
No(s): CP-63-DP-0000064-2022
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
OPINION BY LAZARUS, J.: FILED: OCTOBER 26, 2023
In this dependency case, Washington County Children and Youth Social
Service Agency (Agency) appeals from the juvenile court’s order finding a lack
of reasonable efforts1 on behalf of the Agency to prevent removal of K.M.
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1 Denial of a request for a finding of reasonable efforts is an appealable order
because the denial “will result in a significant financial burden from the loss of
federal funding for placement,” and, thus, the Agency “is an aggrieved party
with standing to appeal.” Interest of K.C., 156 A.3d 1179, 1182 (Pa. Super.
2017). See Pa.R.A.P. 501 (“Except where the right of appeal is enlarged by
statute, any party who is aggrieved by an appealable order, or a fiduciary
whose estate or trust is so aggrieved, may appeal therefrom.”); In re J.G.,
984 A.2d 541, 546 (Pa. Super. 2009) (“[A] party is ‘aggrieved’ when the party
has been adversely affected by the decision from which the appeal is taken.”).
See In Interest of S.A.D., 555 A.2d 123, 127 (Pa. Super. 1989) (stating
there must be judicial determination that reasonable efforts were made to
prevent removal and keep family intact in order for state to be eligible for
federal funds where removal of child from home was result of judicial
determination). See also In re W.M., 41 A.3d 618, 620 (Pa. Super. 2012)
(permitting CYS' appeal of “no reasonable effort” finding); Pennsylvania
Dependency Benchbook, 3rd Edition (2019) (Benchbook), at 6.1, 6.6 (absent
(Footnote Continued Next Page)
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(born 4/21), as required by subsection 6351(b) of the Juvenile Act.2 K.M.,
adjudicated dependent on September 26, 2022, was removed from the home
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finding of reasonable efforts, funding for duration of child’s placement and
services to family becomes solely county responsibility).
2 See 42 Pa.C.S.A. §§ 6301 et seq. Subsection 6351(b) provides:
(b) Required preplacement findings.--Prior to entering any order
of disposition under subsection (a) that would remove a
dependent child from his home, the court shall enter findings on
the record or in the order of court as follows:
(1) that continuation of the child in his home would be
contrary to the welfare, safety[,] or health of the child; and
(2) whether reasonable efforts were made prior to
the placement of the child to prevent or eliminate the
need for removal of the child from his home, if the
child has remained in his home pending such
disposition; or
(3) if preventive services were not offered due to the
necessity for an emergency placement, whether such lack
of services was reasonable under the circumstances; or
(4) if the court has previously determined pursuant to
section 6332 (relating to informal hearing) that reasonable
efforts were not made to prevent the initial removal of the
child from his home, whether reasonable efforts are under
way to make it possible for the child to return home; and
(5) if the child has a sibling who is subject to removal from
his home, whether reasonable efforts were made prior to
the placement of the child to place the siblings together or
whether such joint placement is contrary to the safety or
well-being of the child or sibling.
The court shall not enter findings under paragraph[s] (2), (3) or
(4) if the court previously determined that aggravated
circumstances exist and no new or additional reasonable efforts to
(Footnote Continued Next Page)
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on August 11, 2022, following the death of his infant sibling, N.M. (born 4/22).
See Order of Adjudication and Disposition, 9/26/22. After our review, we
conclude that the court’s decision is supported by competent evidence of
record. The trial court noted that, while the “liability and accountability of the
parent[s’] actions cannot be dismissed, the monumental failures of the Agency
demand a finding of no reasonable efforts.”3 Order, 1/9/23. The record
supports the court’s findings that the Agency, during the four months it was
involved with this family, failed to
follow [its] own policies, failed to adequately assess the family’s
needs, took ‘empty’ actions, and failed to follow up [and, further,
that t]he Agency’s failure permitted the circumstances in the
home to fester and deteriorate, culminating in the death of
[K.M.’s] infant sibling and likely forever denying K.M. the
opportunity to be in the care of his parents.
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prevent or eliminate the need for removing the child from the
home or to preserve and reunify the family are required.
42 Pa.C.S.A. § 6351(b) (emphasis added). See also 42 Pa.C.S.A. § 6332(a)
(if child is alleged to be dependent, court or master shall also determine
whether reasonable efforts were made to prevent such placement).
3 These initial efforts, made prior to adjudication, and the court’s
“preplacement” findings, are distinguished from those future findings of
reasonable efforts related to parental compliance and progress with a family
service plan. See Benchbook, supra at 6.1.1 (initial reasonable efforts
determination distinct from future finding related to parents’ compliance and
progress); cf. In re D.C.D., 105 A.3d 662 (Pa. 2014) (provision or absence
of reasonable efforts may be relevant to court’s consideration of both grounds
for termination and best interest of child). The focus, at this preplacement or
pre-removal stage, as acknowledged by the Agency, is not on the parents.
See Appellant’s Brief, at 19. “At the shelter, adjudication[,] and disposition
hearings, ‘reasonable efforts’ findings focus on steps taken to prevent or
eliminate the need for child removal.” Benchbook, supra at 20.3
(emphasis added).
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Pa.R.A.P. 1925(a) Opinion, 3/15/23, at 1. We, therefore, affirm the court’s
order, relying, in part, on the opinion authored by the Honorable Traci L.
McDonald.
The Agency raises two issues for our review:
1. Whether the lower court committed an error of law or
abused its discretion by failing to render a decision relating
to reasonable efforts to prevent placement within sixty (60)
days of the date of adjudication?
2. Whether the lower court erred in concluding that [the
Agency] failed to exercise reasonable efforts to prevent the
placement of the minor child, K.M.
Appellant’s Brief, at 5.
The Agency first argues that the trial court erred because its finding of
no reasonable efforts was not rendered within 60 days of K.M.’s adjudication.
This claim is waived.
On September 26, 2022, the court adjudicated K.M. dependent, but
suspended that order pending a hearing at which the court ordered the Agency
to address various deficiencies. The order stated that the court
defers finding on Reasonable Efforts inasmuch as parent[s’]
counsel and [guardian ad litem] (GAL) are requesting additional
hearing time to introduce further testimony and evidence for this
[c]ourt’s consideration as to whether allowing the child to remain
in the home would be contrary to the child’s welfare, and that
[p]reventive services were not offered due to the necessity for
emergency placement. Following additional testimony and
evidence, should this [c]ourt determine that preventive services
were not provided and/or were not appropriately provided, this
[c]ourt shall determine if the lack of services was reasonable
under the circumstances and whether the level of effort was
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reasonable due to the emergency nature of the situation, safety
considerations, and circumstances of the family. Such
determination shall be made through amended order.
Order, 9/26/22.
The Agency agreed to proceed with testimony on September 26, 2022
and October 3, 2022. Additional testimony was taken on October 19, 2022,
at the Agency’s request. On January 9, 2023, the court issued its order
finding a lack of reasonable efforts, and the Agency filed a motion for
reconsideration. On January 27, 2023, the court held a hearing on that
motion. At the hearing, the Agency acknowledged that the September 26,
2022 order was suspended, thus giving the Agency the opportunity to rectify
any findings of lack of reasonable efforts. See N.T. Hearing, 1/27/23, at 6.
Additionally, at the conclusion of the reconsideration hearing, the Agency
abandoned its position, requesting the court make its January 9, 2022 order
final. See id. at 72-73 (“[W]e would prefer to forego the opportunity to cure
the reasonable efforts for you to make a determination and to issue—or to
include that it’s a final and appealable order.”).
In its Rule 1925(a) opinion, the trial court acknowledged that its finding
of lack of reasonable efforts to prevent removal of K.M. from the home “was
issued in excess of sixty (60) days from the stipulated adjudication date[.]”
Pa.R.A.P. 1925(a) Opinion, 3/15/23, at 2. However, the court emphasized
that this was with the consent of all parties “to provide for an opportunity for
additional discovery and testimony.” Id. at 3, citing N.T. Adjudication Hearing
Vol. I, 9/26/22, at 154-56. At no time prior to filing its Rule 1925(b)
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statement, at any of the hearings, in its motion for reconsideration, or at the
hearing on that motion, did the Agency raise this issue. See Pa.R.A.P.
1925(b) Statement, 2/7/23.
“It is axiomatic that claims that were not raised in the trial court may
not be raised for the first time on appeal.” In re S.C.B., 990 A.2d 762, 767
(Pa. Super. 2010), citing Jahanshahi v. Centura Development Co., Inc.,
816 A.2d 1179, 1189 (Pa. Super. 2003); Pa.R.A.P. 302(a). Here, the
Agency’s failure to raise this issue before the trial court renders it waived for
purposes of appeal.
Moreover, even if not waived, we agree with the GAL’s argument that it
was the Agency’s obligation to obtain the reasonable efforts finding. See
Benchbook, supra at 6.1.1 (“The agency has 60 days from the date of initial
removal from the home to obtain a reasonable efforts finding.”) (emphasis
added). “If a reasonable efforts finding does not occur within 60 days of initial
removal, federal funds cannot be claimed for the duration of the child’s
placement and funding of such becomes solely a county responsibility.” Id.
See also 45 C.F.R. § 1356.21(b)(1)(i) (“judicial determination as to whether
reasonable efforts were made[] must be made no later than 60 days from the
date the child is removed from the home”).4
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4 We note that the Agency’s argument is that the court should have rendered
its finding within 60 days of adjudication. However, the case law, the federal
regulations, and the Benchbook measure this time period from the date of
removal of the child. Here, K.M. was removed on August 11, 2022, and he
was adjudicated dependent on September 26, 2022.
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Next, the Agency argues that the trial court erred in concluding that the
Agency failed to exercise reasonable efforts to prevent the placement of K.M.
Our standard and scope of review in dependency cases is well-settled:
[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 E.P., 841 A.2d 128, 131 (Pa. Super. 2003) (citation omitted).
[N]either federal nor Pennsylvania law defines “reasonable
efforts.” Notwithstanding the lack of a legal definition, we discern
the following from prior cases. Because the focus of the Juvenile
Act is on the dependent child, as opposed to parents, any services
for parents must directly promote the best interests of the child.
By requiring only “reasonable efforts” [], the statute recognizes
that there are practical limitations to such efforts.
In Interest of C.K., 165 A.3d 935, 941-42 (Pa. Super. 2017) (footnote and
citations omitted).
Instantly, the Agency received a referral when Mother tested positive
for THC at K.M.’s birth in April 2021. Mother had limited prenatal care and
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smoked marijuana throughout her pregnancy.5 The Agency also had drug-
related concerns regarding Father and his other children—most recently in
October 2021, when Father allegedly used and sold an illicit substance,
resulting in permanent legal custodianship of his other children. These cases
were ultimately closed, even though Father refused to drug test or undergo
drug and alcohol evaluation with respect to an October 2021 referral.6
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5 The Closing Summary notes indicated that Mother was severely underweight
and unable to eat due to pregnancy-related nausea and
THC allowed her to eat and gain weight appropriately during her
pregnancy. [Mother] has no prior drug and alcohol abuse issues.
[Mother] has no criminal history. [Mother] did graduate from high
school, [with] no additional education. [Mother] is currently on
maternity leave from Wal-Mart.
[Father] is very apprehensive about communicating/participating
with CYS. [He has a p]rior case [history] with the agency. He
has other children [and h]e is the biological father of [K.M.]. He
has previously been incarcerated, which was when he was given
visitation rights to his other children. The other children live with
their biological mother and [maternal grandmother]. [Father] was
released from jail in May 2020. He was to be on probation for 7
months, [until] Dec 2020.
[K.M.] is currently safe in the home—his needs are being met.
The home has been maintained and no safety threats have been
identified. The home has no visible safety threats—the utilities
are in working order and there is plenty of food in the home.
Contact Summary-Closing Summary, 6/15/21.
6 A subsequent contact summary report listed Father’s criminal history:
2013- Driving Under The Influence At The Highest Rate Of Alcohol
(M 1). 2016- Simple Assault (M2). 2017- Accidents Involving
Death Or Personal Injury ( M2). 2018- False Identification To Law
(Footnote Continued Next Page)
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The instant case stems from Mother testing positive for opiates at N.M.’s
birth in April 2022, one year after K.M.’s birth. From that point, until N.M.’s
death on August 11, 2022, the Agency worked with the family. The trial
court’s finding of a lack of reasonable efforts is a product of extensive review
of the Agency’s investigations and interventions, its systemic shortcomings,
its efforts during the course of those four month, and, primarily, the
reasonableness of those efforts given the Agency’s knowledge of Father’s
history, Mother’s accelerating drug issues, and the clear deterioration of the
family’s home and finances, all of which posed a safety threat to both K.M.
and N.M.
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Enforcement Authorities ( M3). 2019- Possession Of A Controlled
Substance By An Unregistered Person Except By Prescription is
Unlawful (M), Flight To Avoid Apprehension Trial Or
Punishment(M2), Escape (M2).
Contact Summary, 10/8/21. Contact summary reports on October 14, 20, 27,
and November 3 and 4 of 2021 contained the following repeated information:
allegations of Father’s drug use, [and] Father refusing drug and alcohol
evaluation. The November 4, 2021 report noted a caseworker “told [Mother
and Father] their case would be getting closed.” Contact Summary Report,
11/4/21. The Closing Summary Report set forth the allegations underlying
acceptance of this case for assessment on October 4, 2021:
X reported [F]ather sells cocaine, heroin, and pain pills. X
reported [F]ather has all this money in his bank account and does
not work. X reported the drugs were just sitting out on the table.
X reported the drugs were in reach of the children. X reported
[F]ather is also abusing his pain pills along with selling them. X
reported [F]ather is on probation. X reported [F]ather violated
probation today by getting into a physical altercation. X reported
there is concern that [M]other is using drugs also. X reported
there are drugs hidden all over the home. X reported there are
concerns with someone going to the home alone.
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Casework Supervisor Amber Gaulthier stated in the Agency’s CAPS
Notes7 that after N.M.’s birth, a safety assessment was to be completed within
72 hours. The case was assigned to Caseworker Jennifer Schilken, who
contacted Mother the day after N.M.’s birth. See N.T. Adjudicatory Hearing,
9/26/22, at 32. Mother was in Magee Women’s Hospital (Magee) and was
receiving drug and alcohol treatment through the Pregnancy and Women’s
Recovery Center at Magee. Mother had spent a week as an inpatient at Magee
prior to N.M.’s birth, and she was continuing treatment on an outpatient basis.
Caseworker Schilken testified that after she was assigned this case, she
reviewed the family’s history with the Agency. Id. at 31. This “assessment”
resulted in an informal safety plan, which was not documented. Id. at 34.
See also N.T. Vol. 2 Dependency Hearing, 10/2/22, at 83 (CYS Administrator
testifying Agency policy requires safety assessment be done within 72 hours
of “first face-to-face contact[,]” and this was not done in this case).
On April 22, 2022, Caseworker Schilken spoke with Father regarding
“his plan” to ensure children’s safety. Id. Father stated that he would serve
as “protective capacity” to supervise contact between children and Mother, be
it at his mother’s home, or Mother’s home. Id. at 35. No questions were
asked regarding Father’s prior criminal or Agency history at this time, but
Caseworker Schilken testified that she was aware of both his criminal history
and his history with the Agency. See Id. (“Q: So you were aware that
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7 CAPS Notes are the Agency’s method for electronically chronicling and
archiving case activity.
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[Father] had a criminal history that included violent offenses and drug-related
offenses; correct? A: I was, yes.”).8 See also id. at 43-44. When asked
whether she felt that Father was able to serve in a “good protective capacity
for the children,” a newborn and a child just over one year old, Caseworker
Schilken stated: “I don’t make those decisions. I provided the information to
my supervisor[, Amber Gauthier].” Id. at 36. She also testified that she
spoke with both Supervisor Gauthier and Manager Barb Daubner regarding
Father’s criminal history and prior drug-related history with the Agency, id. at
42, but neither suggested that Father be drug tested. Id. at 43-44. See also
N.T. Vol. 2, Dependency Hearing, 10/2/22, at 154 (Supervisor Gaulthier
acknowledging her “assessment” or “allowing [Father] to serve [in] a
protective capacity for [K.M. and N.M.] was based on information [she]
received from [Caseworker Schilken a]nd there was no other investigation
done by her or [M]anager [Daubner] to assess whether or not [Father] was
really appropriate.”).9
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8 Additionally, Father has a lengthy criminal history, which includes statutory
sexual assault (F2); robbery ( F2); driving under the influence: highest tier
(M); possession of a controlled substance (M); simple assault (M2); and
escape (M2). The court took judicial notice of Father’s criminal history. See
N.T. Adjudicatory Hearing, 9/26/22, at 37-41.
9 It was later determined that Supervisor Gaulthier was relying on Caseworker
Schilken’s extensive experience as a caseworker, and Caseworker Schilken
was unaware that Supervisor Gaulthier was not state certified as a supervisor
during the pendency of the case but, instead, was in the process of obtaining
certification. Manager Daubner was also unaware that Supervisor Gaulthier
lacked certification as a casework supervisor. Id. at 228-29.
(Footnote Continued Next Page)
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On May 5, 2022, the Agency received a referral that both Mother and
Father appeared to be under the influence at Mother’s Magee appointment,
and that one of the children was with them. Id. at 44. On May 6, 2022,
Caseworker Schilken was able to make contact with parents. She attempted
to drug test Mother, but Mother was unable to produce a sample; Father
produced a urine sample, which was negative. However, in light of the Agency
policy that precluded a member of the opposite sex from administering the
test, it was also unobserved. Id. at 49-50.
On May 11, 2022, the Agency made a referral to Pressley Ridge Crisis
Stabilization and Family Preservation Services.10 Id. 52. In that referral,
Caseworker Schilken stated that Mother had tested positive for fentanyl on
April 28, 2022, and that “[M]other had previously admitted [Father], who is
the other primary caregiver of the children, is actively using illicitly. Mother
confirmed again at this appointment on 5/5 that her partner is in active use.”
Id. at 54. Both Caseworker Schilken and Supervisor Gaulthier testified that
Crisis Services is the highest level of services provided by the Agency, and
services are “five days a week for a least 10 hours.” Id. at 62; N.T. Vol 2,
Dependency Hearing, 10/2/22, at 77-78. Subsequently it was revealed that
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10 The Pressley Ridge Crisis Stabilization and Family Preservation program
works with parents who have an open case with the state and are in danger
of losing their children to foster care.
https://www.pressleyridge.org/services/community-based-mental-health-
services/crisis-support (last visited 9/15/23).
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these services were not in the home the requisite number of hours “because
the family did not cooperate.” Id. at 79.
On May 16, 2022, Supervisor Gaulthier made several CAPS entries
regarding transferring the case to the ongoing services unit; however, the
transfer was never addressed until June of 2022, and never effectuated.
On June 2, 2022, Caseworker Schilken made an unannounced home
visit to drug test Mother.11 Id. at 63. When they went into the bathroom,
the toilet was clogged and filled to the brim with waste, so Mother had to use
the edge of the bathtub to provide the sample. See Contact Summary,
6/2/22. Mother tested positive for fentanyl, and negative for the
buprenorphine that she had been prescribed. Id. A rapid response Family
Group Decision-Making (FGDM)12 meeting was scheduled for the next day.
See CYS Referral Form, 6/2/22 (stating purpose of meeting was to establish
environment “that is safe and free from illicit drugs and that meets the
children’s needs consistently”). Notably, Father was not drug tested. See
N.T. Adjudication Hearing, supra at 63.
The FGDM meeting took place on June 3, 2022. Caseworker Schilken
testified that she was present for this meeting and acknowledged that,
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11 Caseworker Schilken also conducted unannounced home visits on May 5,
May 6, June 7, June 27, and July 27 of 2022.
12 FGDM is the preferred practice in Pennsylvania, which “allows the family to
participate in the decision-making process along with the child welfare agency,
service providers[,] and other interested persons.” Benchbook, supra at 6-
2.
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although the purpose of the crisis or rapid-response meeting is to come up
with a family plan, none was made. Id. at 64. The meeting was cut short
because Mother went to an appointment at Crossroads Treatment Center for
Suboxone treatment. Id. at 65. A report from the FGDM meeting indicated
a follow-up meeting would be held, but that meeting never happened. Id.
Caseworker Schilken also explained that a family service plan is created
after an intake case is accepted by the ongoing services unit. See id. at 61
(Caseworker Schilken testifying, “We make referrals for services a lot of times
in intake to try to get the family to a position where they don’t need to have
an open, ongoing case.”). Specifically, Caseworker Schilken testified:
Q: And yet here we are, over two months [after opening the case
due to Mother’s drug use], and we’re still having the same issue[.]
But adding the additional layer of the delinquency notices, utility
shutoff notices in the home, and a father who—by your own
words—didn’t really seem to grasp what was happening[.] And
yet, there was never any discussion with your supervisor about,
“Hey, we really need to get this case in court, ASAP. Things are
not looking good”?
A: No, there wasn’t a discussion of court.
Q: But you would agree with me that during the period from May
16, when I first asked you about transferring a case, even to the
present, there was running dictation from your supervisor about
transferring the case? Were you aware of that?
A: Yes. Yes.
Q: Do you know what the delay was in transferring this case?
A: Yes. There was another case that I had that was—these two
were very time intensive.
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Q: Okay. Did you ask for assistance?
A: No.
Q: Why not?
A: I don’t ask for assistance.
Id. at 68-69. See also id. at 69 (Caseworker Schilken testifying, “We tried
to have a follow-up [after Mother’s post-rehab fentanyl-positive test] and
Father wasn’t cooperative.”).
On June 9, 2022, Supervisor Gaulthier documented an entry regarding
transfer of the case to the ongoing services unit due to Mother’s
noncompliance. Id. at 1064. The following day, Crisis Services told
Caseworker Schilken that the plan was for Mother to go to inpatient treatment
in Greensburg, but she could not go at that time due to a lice infestation in
the home. Id. at 1065.
On June 16, 2022, Mother entered inpatient rehab, but she left against
medical advice on June 29, 2022. Id. at 57, 65-66. That same day,
Caseworker Schilken drug tested Mother, just after she had left rehab, and
Mother tested positive for fentanyl. Id. at 66. Additionally, it was learned
that the parents had shutoff notices for water, electric, sewage, along with
approximately $4,000.00 in delinquent property tax notices. Despite all of
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these events, no immediate action was taken by the Agency, yet Supervisor
Gaulthier continued to make CAPS entries about transferring the case.13
On June 29, 2022, the Agency made another referral for in-home
services. See CYS In-Home Provider Referral Form, 6/29/22. Notably, the
form indicated that no current safety plan was in place. Id. This was neither
a crisis (24-hour response) nor rapid response (72 hours) meeting referral,
both of which would have been options under the newly-established Family
Engagement Initiative (FEI) in Washington County.
Appointments for Family Behavioral Therapy (FBT), scheduled for
August 5, August 6, August 9, and August 11, 2022, were cancelled. See N.T.
Adjudication Hearing, supra at 72-74.
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13 In the GAL’s Memorandum, she states:
According to its own policy and procedure, when a case is designated as
one to transfer, the supervisor of that transferring unit must complete
a “Case Transfer Request Form” that lists several tasks for the
caseworker to complete. It is unknown if that form was ever completed.
What is known is that between May 16, 2022 and August 10, 2022,
[Supervisor] Gaulthier made eight entries in CAPS where case transfer
was mentioned. While there was never a clear reason given for the
delay, [Caseworker] Schilken and [Supervisor] Gauthier testified that
they were working on other cases. It is interesting to note that the
transfer summary was started on August 10, 2022, just one day before
N.M.'s death, and supplemented with additional information pertaining
to both children later. Had this case been transferred to the ongoing
unit in a timely manner, it could have been assessed for potential court
intervention. That did not occur, and as a result, one child died and the
other was found to have dangerous substances in his system.
Memorandum of Law in Support of a Finding of No Reasonable Efforts, filed
on Behalf of K.M. by GAL, Christina A. DeMarco-Breedan, Esquire, 10/26/22,
at 19-20.
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On August 11, 2022, the Agency received a report that Canonsburg Boro
Police Officers were called to the family’s home due to an unresponsive three-
month-old infant. The family was transported to the hospital, where the infant
was pronounced deceased. The Agency arrived at the hospital, but Mother,
Father, and K.M. had already been released. The Agency, seeking to assess
the safety and well-being of K.M., located the family at paternal grandparents’
home and requested Mother and Father to submit to drug screens. They
refused. K.M. was placed in kinship care with a paternal great aunt and uncle,
who had been previously assessed by the Agency. See Amended Order of
Adjudication and Disposition, 1/27/23.
On August 12, 2022, the Agency was notified that K.M.’s urinalysis
“tested positive for cocaine metabolite and fentanyl,” and that exposure was
“within the past few days.” Id., citing Agency Exhibit 3 (UPMC Children’s
Hospital of Pittsburgh Emergency Department Evaluation, 8/11/22 &
8/12/22); Agency Exhibit 4 (Outpatient Evaluation, 8/12/22); and Agency
Exhibit 5 (Photographs of K.M.). K.M. had superficial abrasions on his left
foot, right chest, and left neck. K.M. was admitted to Children’s Hospital for
observation and discharged that same day. Id. At a shelter care hearing
later that day, which neither Mother nor Father attended, the hearing officer
ordered K.M. remain in the legal custody of the Agency and in the physical
- 17 -
J-A18030-23
custody of his kinship caregivers.14 The Agency ultimately filed a dependency
petition on behalf of K.M. on August 15, 2022, four days after N.M.’s tragic
and untimely death.
To summarize, the Agency took the following measures prior to K.M.’s
removal:
• April 25, 2022: Referral for Mother for drug and alcohol
evaluation; Mother complied, was recommended for
outpatient treatment, and was working with Crossroads
Treatment Center.
• May 11, 2022: Referral for in-home provider—Pressley
Ridge Crisis Stabilization was with family from May 16, 2022
until June 16, 2022, when Mother entered inpatient
rehabilitation.
• June 2, 2022: FGDM referral initiated, and on June 3, 2022,
Crisis/Rapid Response Meeting Held. FGDM ended early as
Mother was able to obtain same-day appointment with
Crossroads.
• June 2, 2022: Washington County Drug and Alcohol
Commission referral for a second drug and alcohol
evaluation for Mother; Mother complied and was
recommended inpatient treatment and entered inpatient
treatment on June 16, 2022.
• June 29, 2022: After Mother left inpatient care against
medical advice, a second in-home provider referral was
submitted for Pressley Ridge Crisis Stabilization.
Blueprints15 was also assisting the family.
____________________________________________
14Mother and Father absconded, and were eventually found, arrested, and
charged with criminal homicide.
15 Blueprints is a non-profit organization that serves residents in Greene
County, Washington County, and West Virginia. “Our 50 programs act[] as
[a] catalyst to mobilize the resources of the entire community, enabling
(Footnote Continued Next Page)
- 18 -
J-A18030-23
• July 21, 2022: In-home provider referral was made for
Pressley Ridge Family Behavioral Therapy.
• Caseworker Jennifer Schilken made unannounced home
visits on May 5, 2022, May 6, 2022, June 2, 2022, June 27,
2022, and July 27, 2022.
Findings of Fact, Amended Order of Adjudication and Disposition, supra at 4.
The court determined CYS failed to exercise reasonable efforts by:
• failing to conduct a proper safety and/or risk assessment with
the parents of K.M.;
• failing to ascertain necessary and appropriate services to
address and potentially rectify safety and risk factors within the
home of K.M.;
• failing to follow-up to ensure parents complied with referred
and recommended services;
• [failing] to ensure family received the benefit of [referral]
services; family failure to cooperate should have immediately
accelerated Agency action, up to and including court action.
• failing to follow Agency policies and procedures with respect to:
• assessments of risk and safety, included stated policy
for regular monitoring, review, and supervision for
modification of responses and/or advancement for
modified or varied action, i.e., modification of service
recommendation, advancement of crisis and/or rapid
response, referral to ongoing [services], court action
and/or rapid response [] to encourage compliance;
• supervision and direction of caseworkers and
casework supervisors;
• referral for ongoing services, including lack of formal
family service plan;
____________________________________________
families and individuals to attain the skills, knowledge, motivations, and
opportunities to become self-sufficient.” https://myblueprints.org/ (last
visited 9/12/23).
- 19 -
J-A18030-23
• referral for court activity;
• overall case assessment review, supervision, and
management.
Order, 1/9/23.
As our Supreme Court explained in In re D.C.D., 105 A.3d 662 (Pa.
2014), a finding of reasonable efforts is tied to eligibility for federal funding:
[T]he federal government enacted [the Adoption and Safe
Families Act] (ASFA) and related statutes to address the problems
of foster care drift and ensure that dependent children are
provided permanent homes either through reunification or
adoption. To accomplish this goal, the federal government tied
federal funding of foster care and adoption assistance to each
state’s adoption of a plan regarding its foster care system. [See]
42 U.S.C. § 671 (setting forth requirements of state plan “[i]n
order for a State to be eligible for payments” for foster care and
adoption assistance). The federal government required state
plans to provide that “reasonable efforts shall be made to preserve
and reunify families,” absent certain exceptions. Id. [at] § 671(a)
(15)(B). Section 672 in turn provides, inter alia, that a state
should “make foster care maintenance payments on behalf of each
child” if “reasonable efforts of the type described in section
671(a)(15) of this title for a child have been made.” Id. §
672(a)(1), (2)(A)(ii). The federal payments to the states are
likewise based upon the [s]ection 672 payments. Id. [at] § 674;
see also 45 C.F.R. 1356.21(b) (detailing that agencies must
make reasonable efforts “to effect safe reunification” to be eligible
to receive federal foster care maintenance payments).
In re D.C.D., 105 A.3d at 667 (footnote omitted). See In re R.J.T., 9 A.3d
1179, 1186 (Pa. 2010) (observing revisions following 1997 federal enactment
of ASFA were to address problem of foster care drift by allowing agencies to
pursue concurrent planning to ensure children “move more quickly through
the dependency system and into the permanent placement best suited to their
- 20 -
J-A18030-23
individual situation through simultaneous pursuit of reunification and
alternative permanent placement”).
As explained further in the Benchbook, a finding that an agency did not
provide reasonable efforts to prevent placement “indicates that the evidence
and testimony provided to the court supports a conclusion that there were
things the agency could have reasonably done to prevent placement;
however, for whatever reason those things were not done.” Benchbook,
supra at 6.1.1. See also id. (“However a child enters out-of-home
placement, the judge is required to make findings regarding the reasonable
efforts made by the child welfare agency to prevent placement. This
determination is directly linked to the safety threat which led to the
child’s placement and should be based upon the unique circumstances
of each child and family.”) (emphasis added).16 Here, an objective
appraisal of the events in this case indicates that the level of effort extended
over the life of this case was not reasonable. See In Interest of S.A.D., 555
A.2d 123, 127 (Pa. Super. 1989). It is the responsibility of those working
____________________________________________
16 At the hearing on the Agency’s motion for reconsideration, the Agency
argued that a reasonable efforts determination, pursuant to subsection
6351(b)(2) of the Juvenile Act, should not include a consideration of the
Agency’s risk assessment, or whether a risk assessment was conducted. See
N.T. Hearing on Motion for Reconsideration, 1/27/23, at 24-26. Although the
Agency abandoned its motion for reconsideration at the conclusion of the
hearing, this argument is stunningly in conflict with the Agency’s stated
purpose: “To ensure completion of thorough, timely assessments to
determine the current safety and potential risk of harm to children and a
family’s need for services.” See Washington County Children and Youth
Services Policy and Procedure, 2/6/13, at 1.
- 21 -
J-A18030-23
closely with the family to recognize when parental “lack of cooperation”
translates to safety risks for the children. See C.K., supra at 943 (although
agency cannot guarantee parents’ success, it is clear agency’s duty to make
reasonable efforts is independent of parents’ duty to accept such efforts).
Whether due to lack of training, communication, supervision, or adherence to
policies and procedures, the seriousness of the risks to both N.M. and K.M.,
at all levels, was not appreciated. As this Court has previously recognized:
We are aware of the pressures and large workload placed upon
child welfare agency caseworkers, many of whom work very hard
to serve their assigned families. Nevertheless, it is crucial that
child welfare agencies monitor their cases and follow up diligently
to ensure that services are implemented in accordance with the
families’ needs[.] Simply making the referral is not enough.
Id. at 945.
Finally, we note that Judge McDonald was in the best position to assess
the Agency’s explanations and determine credibility. See In re E.P., supra;see also In re W.M., supra. The court concluded that the Agency did not
offer adequate explanations for the delays or miscommunications. See Order,
1/27/23. After reviewing the record, we cannot determine that this conclusion
was manifestly unreasonable. See In re J.R., 875 A.2d 1111, 1114 (Pa.
Super. 2005).
In closing, we note the summation of this tragic case offered by the GAL
in her memorandum to the trial court:
There is not one person who mishandled this case; rather, it was
the Agency as a whole. The Agency is tasked with trying to keep
troubled families intact by offering assistance, and when that is
- 22 -
J-A18030-23
not possible, it must protect the children. That did not happen in
this case. . . . The Agency is in a crisis of the highest magnitude
with the most severe side[-]effect being the unthinkable end of a
3-month-old child’s life and what could have easily been the end
of a 16-month-old child’s life. There is no doubt N.M’s death was
preventable, and while the parents should not be absolved for
their role it in it, neither should the Agency. The Agency had a
legal duty to act in the best interests of N.M. and K.M. and failed
them at every turn. Consequences are more than warranted for
this type of egregious conduct by a government agency in the
form of a finding of lack of reasonable efforts. While monetary
sanctions cannot change what happened to N.M. and K.M., it
would send a direct message to the Agency that[,] in order to
prevent future tragedies in the form of innocent children losing
their lives and/or being exposed to deadly substances, drastic and
swift change must occur. This continuous culture of plausible
deniability must cease. Children are our most valuable yet equally
vulnerable resource, and when parents fail to protect them, the
Agency is required to intervene and act in accordance with the
law. It failed miserably here.
Memorandum in Support of a Finding of No Reasonable Efforts, filed on Behalf
of K.M. by GAL, Christina A. DeMarco-Breedan, Esquire, 10/26/22, at 22, 26-
27.
We find no abuse of discretion, In re E.P., supra, and we rely on Judge
McDonald’s comprehensive opinion17 to affirm her order finding lack of
____________________________________________
17 The Benchbook also provides, as a “best practice” point, the following:
Because reasonable effort findings have such a significant impact
on the financial resources available to assist children and their
families, courts are encouraged to communicate clear
expectations to the agency. When possible, courts should ask
questions to elicit the information needed to satisfy its belief that
reasonable efforts have been provided. Courts are further
encouraged to articulate their rationale when a finding of no
reasonable efforts is made so as to inform the agency of the
systemic changes needed.
(Footnote Continued Next Page)
- 23 -
J-A18030-23
reasonable efforts. The parties are directed to attach a copy of that opinion
in the event of further proceedings.
Order affirmed.
Filed: 10/26/2023
____________________________________________
Benchbook, supra at 20.3 (emphasis added). Judge McDonald’s opinion has
more than met this “best practice” point.
- 24 -
Circulated 10/02/2023 03:48 PM
L
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
JUVENILE COURT DIVISION
IN THE INTEREST OF: )
)
K.M. ) Docket No.: DP 64-2022
)
D.0.B.: 10/ 2020 )
A Minor Child. )
)
RULE 1925 OPINION
In foreword, this Court believes it is important to include a brief statement regarding the
opinion contained herein. Prior to the hearings detailed, this Court did not understand the
insistence of the Guardian Ad Litem ("GAL") and parents' attorneys that there should be a
finding oflack of reasonable efforts on behalf of the Agency. Through voluminous testimony
and exhibits, however, the failure of the Agency to put forth reasonable efforts became
undeniable. The Agency continua11y highlighted the efforts that were implemented and has
argued that those efforts constitute reasonable efforts. However, this case highlights a clear
breakdown in the Agency actions and the failures of multiple actors to engage, follow-up and
respond. The Agency did not follow their own policies, failed to adequately assess the family
needs, took "empty" actions, and failed to follow-up and alter response with the actions. The
Agency failure permitted the circumstances in the home to fester and deteriorate, culminating in
the death of the minor child's infant sibling and likely forever denying K.M. the opportunity to
be in the care of his parents.
I. Statement of Present Matter
Before the Court is a Notice of Appeal and a Concise Statement of Errors Complained of
on Appeal in reference to the above-captioned case at Trial Court Docket Number DP 64-2022.
Appendix B
Following an adjudication hearing, wherein the issue of reasonable efforts was bifurcated, two
(2) additional hearings, review of voluminous exhibits entered by the parties, (including internal
Agency CAPS notes) and findings of fact and concJusions of law submitted on behalf of all
parties, this Court issued a decision finding that the Agency had failed to exercise reasonable
efforts, pursuant to 42 Pa. C.S.A. §6351(b). Prior to making the finding on the issue of
reasonable efforts, this Court carefully and meticulously reviewed and re-reviewed the submitted
evidence and testimony. To assist the appellate court's review, this statement will provide
detailed insight into this Court's analysis. In delivering the opinion, this Court adopted the
recitation of case history and argument advanced by the GAL in her Findings of Fact and
Conclusions of Law and further provided specific findings of lack of reasonable efforts with
opportunity for the Agency to address the deficiencies outlined.1
This Court's finding of lack of Agency reasonable efforts to prevent removal of K.M.
from the home was issued in excess of sixty (60) days from the stipulated adjudication date,
' See allached trial court opinion stating, "After countless reviews of the above-noted materials, this Court adopts, in
full, the recitation of case history and argument advanced by the Guardian Ad Litem (GAL) on behalf of Minor
Child K.M.. In the GAL's comprehensive and extensively written memorandum, the GAL outlines a logical,
convincing and compelling argument that this Court finds fully supported by the testimony, evidence, and record ...
.. While the liability and accountability of the parent actions cannot be dismissed, the monumental failures of the
Agency demand a finding of no reasonable efforts. More specifically, this Court finds that CYS failed to exercise
reasonable efforts by:
• Failing to conduct a proper safety and/or risk assessment with the parents of K.M.
• Failing to ascertain necessary and appropriate services to address and potentially rectify safety and risk
factors within the home ofK.M.
• Failing to follow-up to ensure parents complied with referred and recommended services.
o Referral to the outside agencies did not relieve the Agency of the obligation to ensure the family
received the benefit of such services. Family failure to cooperate should have immediately
accelerated actions of the Agency, up to and including Court Action,
• Failing to follow Agency policies and procedures with respect to:
o Assessments of Risk and Safety, including stated policy for regular monitoring, review, and
supervision for modification of response and/or advancement for modified or varied action. i.e.
modification of service recommendations, advancement of crisis and/or rapid response, referral to
ongoing, court action to encourage compliance.
o Supervision and direction of Caseworkers and Casework Supervisors.
o Referral for Ongoing Services, including lack of formal family service plan.
o Referral for Court Activity.
o Overall Case assessment, review, supervision and management.
Page 2 of 42
however such action was undertaken at the request and consent of all parties to provide for an
opportunity for additional discovery and testimony. In the initial adjudication order of
September 26, 2022, this Court specifically indicates that the scheduling of the next hearing is
for purposes of receiving testimony and evidence on reasonable efforts. See September 26, 2022,
Volume I Transcript ofAdjudication hearing at Pages 154-156.
While this Court argues that its Opinion and Order finding no reasonable efforts provides
detailed and sufficient reason in support of the Order, this Court is also cognizant that this issue
and the resulting decision is unique and therefore supplements such opinion herein. See attached
Trial Court Order and Opinion. See also: Pa Rules ofAppellate Procedure, Rule 1925(a)(1).
Preliminarily, this Court again adopts the findings of fact asserted by the GAL, and incorporates
the same as part of this 1925 opinion. See Memorandum ofLaw in Support ofa Finding ofNo
Reasonable Efforts by Guardian Ad Litem, Attached hereto and made a part herein.
II. Standard of Review
The standard of review in a dependency matter is abuse of discretion. Appellate Courts
instruct that they, "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 determinations as opposed to its findings of fact, and must order whatever right and
justice dictate. We review for an abuse of discretion ... [W]e accord great weight to the [trial]
court's fact-finding function because the [trial] court is in the best position to observe and rule on
the credibility of the parties and witnesses." Inre C.K. 165 A3d 935, 940-41 (Pa. Super. 2017),
quoting In Re W.M., 41 A.3d 618, 622 (Pa. Super. 2012) (citations omitted). Accordingly, the
appellate court is tasked with evaluating this Court's inferences, deductions, and conclusions and
Page 3 of 42
their application of the law in evaluating whether there is an abuse of discretion. This Court
respectfully argues that a full review of the record establishes no abuse of discretion.
III. No Abuse of Discretion Should be Found with the Timing of the Court's Finding that the
Agency Failed to Exercise Reasonable Efforts to Prevent Removal
As its first issue on appeal, the Agency argues that this Court erred as a matter of law
and/or abused its discretion in failing to issue a final order with regard to reasonable efforts to
prevent or eliminate the need for removal of the minor child K.M., "within thirty (60) [sic] days
from the adjudication of dependency." This Court acknowledges that the opinion issued finding
no reasonable efforts was provided in excess of thirty (30), sixty (60) and even ninety (90) days
following the stipulated adjudication of dependency. Nevertheless, any claim that such finding
was in error has been waived by the Agency. As noted in the September 26, 2022 Adjudication
Order:
[T]he Court defers finding on Reasonable Efforts inasmuch as parent
counsel and GAL are requesting additional hearing time to introduce
further testimony and evidence for this Court's consideration as to whether
allowing the child to remain in the home would be contrary to the child's
welfare, and that Preventive services were not offered due to the necessity
for emergency placement. Following additional testimony and evidence,
should this Court detennine that preventative services were not provided
and/or were not appropriately provided, this Court shall determine if the
lack of services was reasonable under the circumstanccs and whether the
level of effort was reasonable due to the emergency nature of the situation,
safety considerations, and circumstances of the family. Such
determination shall be made through amended order.
See Permanency Review Order of September 26, 2022. Through the same order, this Court
indicated that an additional hearing would be conducted for the specific purpose of receiving
additional testimony and evidence on Reasonable Efforts. Id. See: Adjudication Hearing
Transcript, Volume I, Pages 154-155 (hereinafter "Hearing Transcript" in reference to all
volumes). The Agency failed to object or preserve the issue of timing of the decision. In
Page 4 of 42
fact, the Agency requested an additional hearing date for receipt of further testimony, which was
commenced on October 19, 2022. 2 All parties then requested the opportunity to brief findings of
fact and conclusions oflaw. Following the issuing of the opinion, the Agency filed a Motion for
Reconsideration, arguing multiple points of error which will be throughout this statement in
further detail.' The Agency failed to assert timeliness of the opinion in the Motion for
Reconsideration. During the hearing on the Motion for Reconsideration, the Agency withdrew
and waived all claims asking the Court to cancel the hearing scheduled the following week to
permit the Agency to establish rectified efforts and demanded this Court enter a final order
finding no reasonable efforts to prevent removal. At each opportunity, the Agency failed to
argue timing of this Court's decision and consented to the bifurcated finding.4
For each of the aforementioned reasons, any argument regarding the timeliness of the finding
that the Agency lacked reasonable efforts to prevent removal have been waived.
2 See Hearing Transcript, Volume 2, Page 270.
3
While the Motion for Reconsideration was ultimately withdrawn, the Agency did not request the Motion be
stricken from the docket. This Court refers to the Motion because several references in the Motion, which was filed
without a fully signed-affidavit, refer to items unsupported by the record, that were never entered into case
tcstimony and/or evidence. This practice prevents opposing counsel from having the opportunity to cross-examine
and/or challenge the information. Nevertheless, this Court recognized that the two (2) Agency solicitors who
handled the case through the series of hearings, the Deputy Director and Casework Manager are no longer with the
Agency and also were not there at the time the Motion for Reconsideration was drafted. Accordingly, this Court
excused the wholly unsupported averments and introduction of argument never previously introduced.
One such statement indicates that, "Pennsylvania is a State Supervised, County Administered Child Welfare System.
The Court does not have the authority nor the expertise to conduct quality assurance or compliance reviews.
Pennsylvania Office of Children and Youth and Families, Western Region conducted a thorough review of the case
of K.M. and did not make the same finding as this court." This averment is particularly troublesome because the
evidence presented to the Western Region Agency is unknown to this Court and/or any of it's participants and
likewise, Western Region has no knowledge of what testimony and evidence was presented in this court. The
averment suggests that Western Region decision demand precedence over this Court's holdings and suggests that the
Court has no authority to evaluate actions of the Agency. Finally, the averment is inconsistent with the testimony of
Director Schlegel during the hearings wherein she testified that the State was Issuing citations against the Agency
as a result of factors related directly to this case. See learing Transcript, Vol. 2, pgs. 75-59.
It should be noted that the Court's delay in decision had no impact regarding the permanency of the Minor Child.
As wi II be discussed herein, all parties stipulated to the Adjudication of the Minor Child and the placement
recommendation of the Agency,
Page 5 of 42
IV. The Agency Failed to Exercise Reasonable Efforts to Prevent or Eliminate the Need for
Removal of the Minor Child
In the second, very broad allegation of error and/or abuse, the Agency argues that this
Court's conclusion that the Agency did not exercise reasonable efforts to prevent or eliminate the
need for removal of minor child, K.M., from the home was in error. This issue was also
effectively waived by the Agency, given consideration of the Agency's request and subsequent
withdraw of its motion for reconsideration, refusal for review hearing to cure, and demand for
final order. However, due to the unique legal issue presented, this Court will address the broad
allegation.°
Introductory Comments Regarding Court Evaluation on Reasonable Efforts
This Court is provided with little guidance in review of the issue ofreasonable efforts at
the time of adjudication. The lack of guidance provides some insight into the Agency broad
position. The appellate courts have cited the Dependency Benchbook in analyzing the issue of
? In the Withdrawn Motion for Reconsideration, the Agency requested that this Court reconsider, "the Court's
directives to the Agency regarding employee training, oversight, policy development and implementation." As will
be illustrated in this statement, the Court utilized these Agency policies in defining reasonable of the Agency
actions. Further, in issuing the finding on reasonable efforts, this Court was attempting to give the Agency an
opportunity to cure the lack of reasonable efforts, given the circumstances and history of the case.
6 See
Transcript of Proceedings in hearing on Agency Motion for Reconsideration of January 27, 2023. Newsome-
Boyles, Agency Solicitor indicates: "I do think that we have everybody's put on their position and you had asked
us earlier if you want us to forego the opportunity to cure reasonable efforts, and we would prefer to forego the
opportunity to cure the reasonable efforts for you to make a determination and to issue or to include that it's
a final and appealable order." Id. at 72. To confirm this decision, the Court indicated to Agency Direct, "Ms.
Schlegel, because it is such a dramatic decision, you're waiving your right to cure reasonable efforts, I need you to
state for purposes of the record that you are, in fact, waiving that right. Ms. Schlegel? Schlegel deferred back to
her Agency solicitor who then indicated, "Yes, Your Honor, it's the Agency's position that we are requesting to
forego the opportunity to cure reasonable efforts by providing documentation of policies or procedures that
have been enacted after the date of the child coming into care and ask the Court to make a determination as to
reasonable efforts based upon the evidence that was presented at the prior hearings on this case and to indicate that
it's a final and appealable order." Id at 73.
Page 6 of 42
reasonable efforts. Additionally, most evaluations are done with respect to reasonable efforts
following adjudication and not evaluating reasonable efforts in prevention of removal.
Oftentimes, it appears easy to simply evaluate circumstances as "emergent," excusing a
child welfare agency of the need for reasonable efforts to prevent removal. And this Court
concedes, in relation to an emergency shelter hearing, circumstances may require such a finding.
However, at the time of adjudication and disposition and anned with additional information, a
more careful examination is warranted.
In the present matter, considering, the drug related death of an infant child with
incarcerated parents, the easy decision is to excuse lack of reasonable efforts as a result of
emergency and/or to excuse lack of reasonable efforts because some effort was undertaken.
While that may be the "easy" decision, this Court would argue that it is not necessarily the right
decision.
As noted, this Court was initially perplexed at the requests of both parents and the GAL
for stipulation as to adjudication while demanding a finding of lack of reasonable efforts. In
complete candor, at the outset of the argument presented by parent counsel and the GAL, this
Court was reticent to consider the possibility of lack of reasonable efforts. In addition to the
initial reluctance, this Court considered the impact on pending criminal proceedings involving
the parents; the discord the decision may have with the County's newly enlisted Family
Engagement Initiative; and the proverbial slippery slope of placing the Agency in the untenable
position of taking future actions prompted by a fear of a lack of reasonable efforts finding instead
of acting in fashion prudent and appropriate to the specific factual information of each case. 7
' Frankly, due to the unique and factually charged issues involved with this case, the Court was also concerned of
creating bad law. Nevertheless, those same unique and factually charged issues are the very reason this Court's
opinion was issued.
Page 7 of 42
However, the testimony and evidence convinced this Court that, despite the appearance of the
Agency taking steps to prevent the child from being removed from the home, there was a valid
argument for establishing a lack of reasonable efforts to prevent removal. As guided by this
Honorable Court in In re C.K., 165 A.3d935, 941-942 (Pa. Super. 2017), it is insufficient for the
Court to find simply that an action will prevent removal, this Court must also determine whether
the action constitutes a reasonable effort toward preventing removal of the Child from the
home.
However, having no specific definition of reasonable efforts, this Court was forced to
develop a standard for evaluating the undefined. As set forth in the decision of In re C.K, 165
A.3d 935, 941-42 (Pa. Super. 2017):
Neither federal nor Pennsylvania law defines "reasonable efforts."
Notwithstanding the lack of a Jegal definition, we discern the following
from prior cases. Because the focus of the Juvenile Act is on the
dependent child, as opposed to parents, any services for parents must
directly promote the interests of the child. By requiring only "reasonable
efforts" to reunify a family, the statute recognizes that there are practical
limitations to such efforts, It is not sufficient for the court to find simply
that an action will promote family reunification; the court must also
determine whether the action constitutes a reasonable effort toward
reunification. This Court has stressed that the agency is not expected to do
the impossible and is not a guarantor of the success of the efforts to help
parents assume their parental duties.
While this provides some guidance in evaluating reasonable efforts in general, it fails to consider
the earlier assessment of reasonable efforts, considering whether reasonable efforts were made to
prevent or eliminate the need for removal of the child from the home. See 42 Pa. C.S.A.
§635J(b)(2). Applying the rationale ofC.K. in an assessment regarding reasonable efforts to
prevent removal, this Court would be guided with the following language:
Because the focus of the Juvenile Act is on the dependent child, as opposed to parents,
any services for parents must directly promote the interests of the child. By requiring
Page8of42
only "reasonable efforts" to prevent removal of the child, the statute recognizes that there
are practical limitations to such efforts. It is not sufficient for the court to find simply
that an action will prevent removal; however, the court must also determine whether the
action constitutes a reasonable effort to prevent removal without placing the Agency in
the position of being a guarantor of success.8
Countless dictionaries associate reasonableness with common sense, fair and sensible
acts, a degree of care, possessing sound judgment, moderate action. See Black's law Dictionary,
Merriam Webster Dictionary, Dictionary.com. In a nutshell, reasonable efforts can be evaluated
as taking appropriate and sensible actions, undertaking to exercise a reasonable degree of care
without the high bar of a best effort evaluation.
So what makes an effort reasonable? Is it implementation of a safety plan, a referral for
services and/or continuing to engage in the same level of effort and expecting a different result?
This Court came to the realization that many "efforts" purportedly taken by the Agency
were "empty actions" that were designed to simply check a box, rather than implement
appropriate services to prevent removal. Paired with an anemic assessment, much of the
"action" touted as "reasonable" by the Agency involved "referrals" of which Agency
representatives failed to understand and failed to establish as consistent with the needs of the
family. The record further supports a finding that the Agency failed to perform adequate follow-
up to determine if the services were actually implemented and/or appropriately addressed the
primary concerns and the Agency never modified its response.9 Finally, the evidence and
8
In the Withdrawn Motion for Reconsideration, the Agency made argument regarding the In Re C.K. definition.
The Agency argued that the inquiry is not whether a family followed the requests of the Agency, the inquiry is as
whether or not the efforts were made by the Agency. In essence, the Agency argucs that because efforts were taken,
there cannot be a finding of lack of reasonable efforts. The key word here is reasonable.... Not successful efforts,
not best efforts, but reasonable efforts. As will be further detailed herein, this Court found that the efforts
undertaken by the Agency were NOT reasonable. Any evaluation of the success and/or failure of the family was
done in effort to ascertain the reasonableness of the Agency response.
9
Primary Concern being the safety of minor children in the home when at least one (l) and potentially both parents
were suffering with illegal abuse of controlled substances. See Testimony of Director Schlegel, the main issues of
Page 9 of 42
testimony clearly establish that the Agency failed to follow their own policies and procedures
with regard to intake and assessment, referral for services, communication within the Agency,
with providers, and with the family. In fact, the persons placed in charge of handling this case
directly testified to:
• Lack of knowledge of Agency policies and procedures;
• Lack of awareness of provider services which were referred by the Agency;
• Lack of proper direction and Supervision; and
• Lack of knowledge and/or awareness of actions of other Agency employees,
service providers and most importantly the family.
An additional layer considered was the impact of the glaring inconsistencies in the
testimony, the Agency representative's inability to support the rationale behind actions and
inactions, paired with incessant finger pointing and assignment of blame and responsibility.
Having come to this realization, the Court then considered three (3) important questions:
• What is the Standard of Reasonableness as it relates to the Agency actions;
• Can lack of Reasonable Actions equate to Lack of Reasonable Efforts; and
• Did the Agency Deny K.M. the opportunity to remain in the care of his
parents by failing to exercise reasonable efforts to prevent his removal.
Follow review of the testimony, evidence, exhibits and records, this Court developed
what it considered a fair evaluation of reasonableness, formed by the Agency's own standards,
policies and procedures. Utilizing this standard of reasonableness, the second two (2) questions
were answered with a resounding yes. What follows is an exploration into this Court's findings.
the case include: drug and alcohol use by Mother; lack of cooperation; and the history of birth Father. See Hearing
Transcript, Vol. 2, pg. 99-100.
Page 10 of 42
V. Defining the Standard of Reasonableness as It Relates to Agency Actions
Using the definition and roadmap above. this Court sought to review the testimony and
evidence without holding the Agency to the level of near to absolute success. Rather, this Court
evaluated the evidence to ascertain if the actions of the Agency made logical sense. Therefore, to
assess the question of the standard ofreasonableness as it relates to the Agency actions, this
Court looked at Agency standard policies and procedures to establish a baseline. "
Lack of Reasonable Actions
This Court made a specific finding that, in the present matter, the Agency failed to
perform a proper safety/risk assessment of the family. This finding was based on direct
statements of Agency representatives that required assessments. protocols and procedures were
not completed. The Agency has a defined hierarchy that provides for oversight and review in
making safety and risk evaluations, along with case review for response and potential services.11
In the present matter, there was a complete failure of all of these systems.
I? In its later withdrawn Motion for Reconsideration, the Agency, in large part, argues that this Court was wrong and
overstepped its authority in delivering the decision finding lack of reasonable efforts. More specifically, the Agency
argued that this Court failed to take in account the actions taken by the Agency and considered the overall system of
Washington County Children and Youth Social Services (CYS) as opposed to a specific focus on the facts in the
present case. To the contrary, this Court has been laser focused on the facts of this specific case. However, it
would be impossible to make a reasonableness to prevent removal evaluation under 42 Pa. C.S.A. §635l(b) without
review of Agency policy. The analysis is not done with a "better mousetrap," "Monday morning quarterback," or
quality control mentality. Rather, this Court made its decision of reasonableness based on the policy, procedure,
evaluations, omissions and inconsistencies that representatives of Washington County CYS provided as the
standard.
!'In reference to the Dependency Benchbook, in the withdrawn Motion for Reconsideration, the Agency argues the
following: "The parties stipulated to a long line of services that were offered to the family. The Court's inquiry
must focus on the services provided to assist the family. As the Pennsylvania Dependency Benchbook boldly
emphasizes, 'to make this finding, evidence as to the agency's affirmative actions to make reasonable efforts is the
sole issue' the Court's decision should refrain from analysis of agency staffing shortages, caseload sizes, or other
systemic issues." This Court argues that the Agency reliance on this argument is a misunderstanding of the
Benchbook, The complete statement in the Benchbook is:
Every hearing that requires that a reasonable efforts finding requires evidence about the
the agency to assist the child and parents. [t is not sufficient to
"reasonable" actions of
Page 11 of 42
Additionally, while the Agency made "referrals" for family services, it became apparent
that many of the referrals were simply "empty actions." The record establishes that, the referrals
failed to result in any actual and meaningful services for the family and the Agency
representatives failed to exercise effective follow-up to be alerted to these problems. In fact,
testimony is clear that many of the services by which the Agency made a referral failed to be
implemented or completed as referred. Evidence suggests that the family was unclear on what
the Agency was requiring and Agency employees were unclear on the parameters of the services
they referred.
Finally, contrary to the policy described by all witnesses, the Agency failed to take
actions to modify their response to the lack of cooperation of parents, the unsuccessful referral of
services and the continued drug abuse issues within the home. Most apparently, the Agency
failed to prepare the Case for transfer and/or modify responses consistent with the specific
dynamics of the family.
simply hear the evidence as to compliance and progress level of the parent or child. Nor
should the court include in its analysis agency staffing shortages, caseload sizes or other
systemic issues." Benchbook at 20-5
In context, it is clear that the Benchbook is stating that the systemic issues should not be considered as a
justification for lack of reasonable efforts by the Agency. Rather, the Court should make a determination
based on the subjective needs of the family and whether the efforts undertaken by the Agency were
reasonable to address the needs.
The Agency continued the argument, later stating, "A finding of no reasonable efforts to prevent or eliminate
placement partially or wholly upon analysis on system issues is improper and should be reconsidered. Further, this
Court oversees less than 10% of the families that are brought to the attention of Washington County CYS and has no
evidence of 'systemic deficiencies. This court is overreaching its authority as a judicial branch, which does
not have the authority to oversee the executive administrative branch, in this ease, the county child_welfare
ggency.
Again, as noted above, this Court was required to evaluate system failure in the present case because, as opposed to
speaking to the reasonable services provided for the family, the Agency relied upon Agency policies generally to
justify the actions taken in the case. Accordingly, to develop a fair evaluation of the reasonableness of actions in the
present matter, this Court was required to evaluate those same policies. With regard to the Agency argument
regarding its cqual footing with the Courts as an Executive Administrative Branch, this Court will leave to the
Honorable Appellate Court the determination of whether administrative agencies are exempt from judicial
evaluation and the slippery slope implicated by this argument.
Page 12 of 42
Hierarchy of Agency
To provide a basic overview of the standard operating procedures of Washington County
Children and Youth Social Services (CYS and/or Agency), this Court was required to piece
together testimony and evidence to develop the baseline of standard operations. Agency
director, Anne Schlegel, confinned through testimony, that the Agency policies and procedures
are essentially an adoption of statewide statutory, regulatory and administrative mandates.
Schlegel indicated that she is "in the process of updating Agency policy to become more
consistent with current laws and to provide more consistency to Agency decisions. See Hearing
Transcript, Vol. 2, pgs. 8-15.
Through the day-to-day operations of the Agency, responsibilities, oversight and
supervision are designed in a multi-layered hierarchy. At the intake level, there are initial
screeners and intake caseworkers. The intake caseworkers have case supervisors and the case
supervisors have casework managers. The Agency casework managers report directly to the
deputy director, who in turn reports to Director Schlegel.'
In accordance with this hierarchy, in the present case, the intake Caseworker, Jennifer
Schilken testified that she is not permitted to make independent decisions and would only follow
the direction of her Supervisor, Amber Gauthier, as it relates to assessments, actions and
recommendations. Casework Supervisor, Amber Gauthier, testified that she relied on the
decisions and information provided by Schilken, her intake Caseworker, and direction provided
by Casework Manager, Barb Daubner. Former Casework Manager, Barb Daubner indicates that
she had little infonnation on this case and was not notified of any concerns from her Casework
2 This hierarchy was developed prior to the tenure of Schlegel, but remains in use, along with the policies and
procedures adopted prior to her tenure.
Page 13 of 42
Supervisor, Ms. Gauthier, with whom she was entrusting the oversight and management of the
case.13 The Agency Director, Schlegel and former Deputy Director Angela Filotei indicate that
the Agency policies and procedures dictate that the intake Caseworker was supervised and
directed by the Casework Supervisor, Gauthier. Further, in this case, because Casework
Supervisor Gauthier was uncertified, her actions should be managed and reviewed by her
Casework Manager, Ms. Daubner." However, when asked if she received reports of Ms.
Daubner's supervision during the time frame between April 2022 through August 2022, Director
Schlegel responded, "I did not receive any written rcports, no." Hearing Transcript, Vol. 2 at
page 22. Ms. Schlegel continued that Ms. Daubner was required to document her
3 Amber Gauthier was, at all time in the case, "still in the process of participating in her foundations training as a
supervisor." Hearing Transcript, Vol. 2, pg. 19. Schlegel indicated that Gauthier was hired in March of 2022 and
was acting under the direct supervision of Agency case manager, Barb Daubner. Jd. at 19-2 ! .
' When asked what this involved, Schlegel testified that, "the responsibility would be that Ms. Daubner would meet
with Ms. Gauthier on a regular basis, that Ms. Daubner would be present for all of the supervisions between Ms.
Gauthier and her direct service caseworker, that Ms.Daubner would be working through the policies,
procedures, safety risk, regulation, requirements, training requirements on the cases that Ms. Gauthier is
pverseeing as a teaching method. See Hearing Transcript, Vol. 2, pg. 21. However, this testimony was in direct
contradiction to the testimony offered by Caseworker Schilken. See Hearing Transcript, Vol. I, page 92,-93 wherein
the following exchange is documented:
Q. Did you have any conversations with Barb Daubner regarding the services offered in this
Case-
A. No.
Q. Prior to August 11?
A. No.
Q. Okay. Did you have any conversations with Barb Daubner regarding decision-making
prior to August 11?
A. No.
Q. Okay. And the supervisor that directed you at this time period, between the time of April
22 and August 11, was that Amber Gauthier?
A. Yes.
Q. Would it be fair to say that your actions would have been directed by Amber Gauthier?
A. Yes.
Ms. Gauthier also testified that Ms. Daubner never attended her supervision meetings with Caseworker Schilken,
See Hearing Transcript, Yol. 2, page 206. Ironically, Manager Daubner denied knowledge that the Casework
Supervisor was uncertified, requiring more oversight.
Page 14 of 42
involvement with Gauthier, however, Schlegel was unaware if that occurred.'? Id. Director
Schlegel eventually admitted that Ms. Daubner did not review the case between April 2022
and August of 2022. See Hearing Transcript, Vol. 2, pg. 53.
Failure to Conduct Proper Safety and/or Risk Assessment
As one of the initial foundations of this Court's finding ofJack of reasonable efforts, this
Court found that the Agency failed to conduct a proper safety and/or risk assessment with the
parents ofK.M.16 Quite simply, without solid initial and continuing assessments, it is this
Court's opinion that the Agency would have no ability to properly evaluate a case for services or
appropriate next steps.17 Here, Caseworker Schilken indicates that she did an initial, informal,
safety assessment of the Case. Hearing Transcript, Vol. 2, Pgs. 220-22. However, the safety
assessment failed to include case history and assessments of key persons, namely the Father.
IS When asked if Ms. Schlegel had any direct conversation with Ms. Daubner regarding her supervision in the
matter, Schlegel responded by asking, "Can I ask ifl am at liberty to discuss human resources issues?" See Hearing
Transcript, Volume 2 at page 32. After considerable argument regarding further testimony on human
resource/personnel issues, this Court limited the questions and asked directly if the Agency took any actions with
the employees involved as a result of the present matter, to which Ms. Schlegel answered, "yes, we have." See
Hearing Transcript, Vol. 2, page 34.
"" In yet another Motion for Reconsideration argument, the Agency argued that, "[T]he Determination of what a
"proper" safety and/or risk assessment is made by the Department of Human Services, Office of Children, Youth
and Families. The Court does not have the authority to conduct quality assurance evaluations on case records." In
response, this Court argues that, pursuant to the authority of 42 Pa C.S.A. $6351 (b), this Court has authority to
make a finding on reasonable efforts. There is no exemption placed on the Court's authority to evaluate relevant
and permissible evidence in making this assessment. Accepting this Agency argument would be accepting the
theory that CYS and the Department of Human Services, Office of Children, Youth and Families is beyond the
reach ofjudicial review.
'? Just as with a medical consultation, the professionals are required to triage to determine the appropriate next steps.
In doing so, it is reasonable that they would investigate the complaint, obtain a history and develop a plan of action.
The reasonable next step would be to treat the issue and/or refer to proper other professionals and follow up to
determine the effectiveness of the treatment. If the treatment was ineffectual or the referral was unable to provide
the service required, the situation would be re-evaluated for an alternate form of treatment. If the patient was
unwilling or unable to cooperate, the reasonable next step may be to refer for counseling, to advance the matter to
another level or to involve trusted persons or loved ones to support the cause.
Page 15 of 42
When asked specifically about risk assessments, the Caseworker indicated that a risk
assessment is done with the gathering of information and is done throughout the intake of the
.case. Caseworker Schilken indicated that a written version of the risk assessment is not
completed until a case is transferred. Here, there is no evidence supporting the ongoing risk
assessment, formal or otherwise and the uncontroverted evidence establishes that the Agency
failed to follow its own internal policy regarding assessment, review and transfer. This was
confirmed through the testimony of Agency Director, Anne Schlegel, who testified that the risk
assessment in this case was not completed because the family made an "informal safety plan"
Hearing Transcript, Vol. 2, pgs. 45-46.
Based on the testimony and evidence, this Court found the "informal family plan" faulty
inasmuch as the initial assessment ignored or dismissed valuable information. The plan was
adopted by the Agency and followed with little to no alteration. The record establishes, despite
the recent history with family and allegations regarding Father, the Agency accepted the "family
plan" without further question, putting Father in the supervisory capacity without engaging in a
safety assessment with Father. In addition to the "family plan the Agency Caseworker also
made "referrals." As will be examined in more detail later, the referrals were also faulty.
In light of this, even though the "family plan with "referrals may have prevented
removal, this Court found that it did not constitute a "reasonable action." As will be discussed
Rater, the Agency policies and procedures provided mechanisms to assess the family and discuss
and develop an appropriate response, including the ability to modify the response.
Unfortunately, in the present matter, the Agency didn't utilize those mechanisms. i.e.
supervision, team meeting and case transfer.
Page 16 of 42
Ms. Schlegel identified the GPS Policy and Procedure and was led through the outlined
requirements of the manual. More specifically, Schlegel indicated that, in the present case, home
visits were conducted and an "unofficial" assessment of safety and risk was conducted. Id.
When asked what "unofficial" meant, Schlegel stated, "the paperwork document for the risk and
safety assessment or for the risk assessment, I should say, not the safety assessment. The risk
assessment was not completed." Id at 45. Testimony further revealed that a risk assessment
was not completed between April 2022 and August 2022. Schlegel further acknowledged
that required risk assessments to monitor the safety of the child and ensure contacts are
made was not completed in this case. Id. a1 60-61. Schlegel further admitted that the Analysis
and Risk Assessment for the Pa Model Risk Assessment form was not completed in this
case. Id. at 63-64.
Director Schlegel acknowledged that in-home safety assessments were not conducted
according to Agency policies and procedures. Hearing Transcript, Vol. 2, pgs. 81-82.
Further, as acknowledged by several of the witnesses, in the present matter, State mandated and
local Agency directed requirements were not followed.
Case Transfers and Risk Assessment
In addition to the deficiencies in assessment, Schlegel testified on the difference between
general protective service (GPS) and child protective services (CPS) guidelines, indicating that a
OPS investigation provides that an intake worker has sixty (60) days to complete their
investigation. Hearing Transcript, Vol. 2, page 40. Testimony continued that:
"by day 60 the caseworkers will determine, one, if the allegation was
valid or invalid. That is for a OPS. And then they have to determine the
service outcome which is to either accept a case for services or to close the
case. So in order to accept the case for services, you have to have a least
Page 17 of 42
one valid allegation. If the case is not finalized by day 60, it is
automatically accepted for service for the caseworker to then have to work
it as a direct service case."
Id. at 42.
Despite denying knowledge of specific Agency policies and procedures, Casework
Supervisor Gauthier confinned this testimony.18 When questioned about case transfers, Gauthier
indicated that, while it is handled on a case by case basis, she likes to have case transfers
completed within the first sixty (60) days from when GPS report is received. Hearing
Transcript, Vol. 2, pg 146.
Director Schlegel was asked about the training of Caseworkers, Casework Supervisors
and Casework Mangers regarding the specific policies to detennine if the workers had awareness
of the requirements. Although she indicated that all policies in effect at the relevant time were
in place prior to her tenure, Schlegel indicated that Agency policies and procedures are made
available to employees and they learn through on-the-job and hands on training, in addition to
the hierarchy of supervision. Nevertheless, Supervisor Gauthier testified that she never received
specific policies and procedures required by the Agency upon her employment. Hearing
Transcript, Vol. 2, pgs. 144 and 148.
Caseworker Schilken also indicated a lack of awareness of specific Agency policies and
procedures. Hearing Transcript, Vol. I, pgs. 137-141. What the record establishes is that,
Schilken never completed a fonnal risk assessment, indicating that this would be done as she
nears the end of her participation with a case. In other words, when she prepares to move a case
Gauthier testified that she most recently began working at the Washington County CYS office on February 22,
2022, but was previously employed by the Agency as an ongoing supervisor from October 2017 through May of
2018. See Hearing Transcript, Vol. 2, pg. 143. Ms. Gauthier also worked with Greene County CYS from
November201 I through May of 2017 as an intake supervisor. Id. a1 147,
Page 18 of 42
from intake to closure or transfers the case to the ongoing case list or through other measures.
Here, despite conversations from May until August about transferring the case, by her own
admission, statements of her Supervisor and Casework Manager Daubner, the case was not
transferred." Later testimony indicated this was because the Caseworker hadn't "completed
everything to get the case ready." Presumably, this would include the risk assessment. Everyone
in the Case recognized that the Case should properly be transferred to the ongoing case list.
• Schilken knew this, indicating that transfer in sixty (60) days was best practice;
• Gauthier knew this, indicating that she ideally would transfer a case in sixty (60)
days; and
• Director Schlegel acknowledged the time-frame and indicated that the standard
would be if a Caseworker doesn't complete a risk assessment in the required time
period to allow the case to be transferred, it is the supervisor's responsibility to
ensure that it gets done.
See Hearing Transcript, Vol. 2, pg. 65.
The testimony and case history support the finding that the case was not assessed and/or
transferred consistent with Agency policy and procedure and State statutory and regulatory
I The Case is littered with references to the transfer to the ongoing case list. By short example:
• "I mean, we talked about-throughout the case. When I would report what was going on, it was, you
know, to put services in, to schedule this, or you know, like the family group or FBT. And, certainly, we
talked about transferring. You know, we knew that the ultimate goal was going to be transfer the
case. See Hearing Transcript, Vol. l, pg. 76.
• By Agency CAPs note exhibit, it is noted on June 9, 2022, that Gauthier entered a note indicating that "F
did test for C.W. last time, We still have concerns since the children are so young and "M" doesn't seem to
take this seriously, We can open case. Next Steps, transfer case." See Hearing Transcript, Vol. 2, pg. 166.
(two months later on August 9, 2022 the case remained un-transfcrred and the family remained non-
compliant. Forty-eight hours later, K.M.'s sibling was found deceased in the home.)
• CAPs noted of June 14, 2022, indicating that a family-group follow-up is not being scheduled, "Mother is
going to inpatient and the case is being transferred." Id.
Page 19 of 42
authority. This Court found that the Agency's failure to fo1low standard policy and procedure
was not reasonable.
The Agency Action--- "Referrals
Further troubling are the "referrals" and follow-up response by the Agency. Through testimony
and evidence, we know that while Mother would agree to participate with services, initiate
services and comply with assessments, she failed to follow-up and remained non-compliant,
while continuing to test positive for illicit substances, through the pendency of the pre-petition
case. Additionally, Father, the parent with whom the Agency entrusted the safety ofthe
children, failed to comprehend and/or refused to understand the expectations of the Agency and
became uncooperative as the case proceeded. Father demanded to know the specific goals to
close the case.
In her further review of the GPS Policy and Procedure manual, Schlegel was asked about
services provided for the family. Schlegel testified that referrals were made for drug and alcohol
assessments and programs and Pressley Ridge Crisis and FBT services. Hearing Transcript, Vol.
1, pg. 47. Testimony continued that a family group decision making referral was made and a
meeting was commenced but cut short. Id. at 48. As a furthcr layer of complexity, at some point
in late June 2022, Father indicated a lack of knowledge regarding the requests of the Agency.
When asked what happens when the family refuses services, as what occurred in the present
case, Schlegel testified:
... the agency will sit with the family and explain the course of the service, the
reason for service, two, it would benefit the family, at times they would bring the
service provider with them to the home to help identify what the service is and
how that service could benefit the family. They would talk with the family if
there was another service that they would prefer over the one that we referred to.
At the end if, ultimately, the parents or anyone refuses, ultimately refuses, we
Page 20 of 42
would assess that refusal. We would assess the impact that that would have
towards the risk or safety of that child..... And then once it's detennine that
they, the parents, still refuse to participate with the service, then we would assess
the-the agency would assess the risk and safety to that child given the fact that
the family does not want to participate. And then we would have a decision-
making meeting, a team decision-making meeting, to determine ifthere are
other avenues or if court intervention would be necessary.
Id. at 49-50.
Director Schlegel defined a process where the Agency could address parents who failed
to cooperate, indicated a lack of understanding and/or refused services. There is no evidence of
the process being instituted in the present case. Additionally, both Schilken and Gauthier
indicated that they didn't know who discussed Father's concerns with the family but expected
that to happen from referral sources.
Schlegel then testified that, in the present case, despite parents failing to participate with
recommended services, there was no team meeting on this case prior to the infant death in
August of 2022. Id. at 51. Despite evidence and testimony that Schilken and Gauthier had both
utilized the "team meeting" approach previously, they failed to request this mechanism and/or
alternative known Agency responses. The Court found these actions unreasonable.
Service Referrals and Modification of Responsc
As referenced above, a finding of reasonable efforts does not require a finding that the
Agency is successful in the efforts, the Court must simply detennine if the actions are
reasonable. Reviewing the record, parents were non-compliant, the areas of concern in the home
continued to exist and even the Crisis services put in the home failed to be effective.
Nevertheless, the Agency maintained the same course of action, without altering the plan or
modifying the response, all while anticipating the eventual transfer.
Page 21 of 42
Schlegel was directed in testimony to the Child Protective Services Law and asked about
55 Pa Code 3490.73, which indicates that:
The county agency shall petition the court if one of the following applies:
(l) Placement or continued placement of a child is necessary.
(2) A subject of the report of suspected child abuse refuses to cooperate with
the county agency in an investigation, and the county agency is unable to
detennine whether the child is at risk.
(3) The parents refuse services, and the county agency determines that services
are in the best interests of the child.
When asked about the validity and application of the provision, Schlegel testified, "If the parents
refuse services, yes. In this case they were not refusing services, they were just not
cooperating."? Id a1 52.
The Case was not referred for Court action and other than modifying the referral to
another Pressley Ridge program, that appears to be a step-down from an earlier referral, no
modification was made to the Agency response. This Court found these actions of the Agency
unreasonable.
Agency Direction and Supervision in Relation to Actions and/or Inactions
Caseworker Schilken testified that she failed to take several case related actions because
she was not directed by her supervisor to take such actions. During the hearing, Counsel
20 A follow up question was asked regarding how the agency differentiated between noncooperation and refusal, to
which Schlegel testified, "They are not saying that we are not going to participate in these services. They would
answer the phone, be there sporadically, not engage to the extent that the agency or service provider would hope that
they would The point for this is if the agency determines it is in the best interest of the child, so that goes back to
what I had said before if a family does not engage with the services that are offered to them. Then the agency
would_need to assess what the safety or risk concern would be for that child. And if that concern was present
then, yes, we would petition the Court for compliance. Here, there is no evidence the Agency performed any
follow-up assessment of safety or risk and failed to petition the Court prior to the death of KM.'s infant sibling.
Page 22 0f 42
appropriately questioned Ms. Gauthier regarding her direction of the Caseworker. The exchange
was as follows:
Q. Okay. And then, which brings me to my next question, Ms. Schilken had
testified at a prior hearing that she essentially only did what was directed.
And you are indicating today that you are relying on Ms. Schilken's
experience. So who made decisions on this case?
A. So she wouldn't bring everything to me for me to help her, but, I mean, I
trust her judgment out in the field because she is such an experienced
caseworker.
Q. Did you make any independent decisions other than what Ms. Schilken
brought to you?
A. Imade some service referrals.
Q. Which service referrals did you indicate to her that would be appropriate?
A. I believe it was stop.
Q. Okay. Were stop services implemented in the home?
A. I know there was a referral. I don't know if they were actually started.
Then FBT came in.
See Hearing Transcript, Vol. 2, Page 215.
The lack of conformity with the Agency's own internal policies, most dramatically with
regard to the review and oversight came through the testimony of Casework Supervisor, Barb
Daubner. Because her testimony sheds light on the magnitude of the omissions, a detailed
accounting of her testimony follows.
Barb Daubner, CYS Casework Manager and Manager to Casework Supervisor Gauthier
provided testimony that established that Daubner was an experienced child welfare worker,
having come to Washington County CYS in 2019 after working for 34 years in the Allegheny
County Office of Children Youth and Families. Id. Daubner testified that her job duties
Page 23 of 42
involved managing the Agency supervisors, including supervision of Supervisor Amber
Gauthier. However, in contrast to the testimony offered by the Agency Director and Ms.
Gauthier, Ms. Daubner testified that she was unaware that Ms. Gauthier was an uncertified
supervisor, thus requiring additional oversight in her supervision of cases. Specific to the case at
hand, Daubner indicated that she only "reviewed part" of the case history. The following
exchange occurred at the hearing:
Q. So when you make any kind of personnel decisions or decisions you give
to your subordinates, do you review the case history.
A. I review parts of it, yes.
Q. And did any of your subordinates ever come to you and have questions
regarding this case since April of 2022?
A. Yes.
Q. So did you review the case history at that point?
A. I reviewed parts of it, I do believe. I don't recall, actually.
Q. Okay. You don't recall when you reviewed the case history between April
2022 to present?
A. No.
Q. Okay. Were you aware that Ms. Gauthier lacked certification as a
casework supervisor?
A. I was not.
Q. Okay. So when did you become aware she wasn't certified.
A. Last week.?'
Hearing Transcript, Vol. 2, Pages 228-229.
21 When later questioned about this testimony by the Agency solicitor, Daubner indicated, "I knew she was doing
the certification process again, but I wasn't aware that it was because she wasn't certified. It was just a refresher
because she was coming back into the agency. Hearing Transcript, Vol. 2, page 236.
Page 24 of 42
In further direct contrast from the testimony offered by Director Schlegel, Daubner
testified that she was "not sure" if a caseworker lacking certification required additional
oversight. Id. at 230. Daubner also indicated that she only "read some" of the policies and
procedures from CYS and was unaware if those policies discussed her duties in relation to
managing an uncertified supervisor. Id. Ms. Daubner was unsure if she reviewed and/or
created CAPS notes in the present case, Id. at 231. Further, although Ms. Daubner
acknowledged meeting with Supervisor Gauthier regarding the present case, prior to August 11,
2022, she was unaware how often or if she ever specifically checked in on the status of this
case.
Ms. Daubner testified that although she believed a risk and/or safety assessment was
completed in the present matter, she was not sure when they were completed. Ms. Daubner did
acknowledge knowing that Father, Mr. M,had a criminal history, but was unaware of when
she learned the infonnation. Id. at 232. When asked of what specific actions she took in this
case between April of 2022 and August of 2022, the following exchange occurred.
A. I had discussions about possibly having a team meeting. And I had
discussions about the fact that the case needed to be transfer.
Q. Do you remember when you had those discussions?
A. June and July.
Q. And what happened with the team meeting? Why did that not
occur?
A. I don't recall.
Q. Okay. You never followed up?
A. We discussed the possibility, we didn't request one.
Hearing Transcript, Vol. 2, page 233.
Page 25 0f 42
Following acknowledgement that the discussion of the team/teaming meeting was
discussed between Supervisor Gauthier and Manager Daubner in June of 2022, additional
testimony was elicited, wherein the following exchange occurred:
Q. Is it customary for you to discuss a team meeting with one of
supervisors and then for that meeting not to happen and for there to be
zero follow-up about it?
A. It can happen, yeah. They can talk about whether or not they think there
needs to be a team meeting.
Q. Okay. And what's the discussion about this case and the teaming meeting
for it?
A. I don't recall the discussion with Amber that much, but I knew it was in
regards to the in-home services .
. . . .. Court clarification of statement .
Q. And what other services were contemplated?
A. Well, drug and alcohol and in-home.
Q. Okay. Anything else?
A. I don't recall. We were talking about one of the drug and alcohol in-home
services that we thought might be appropriate.
Q. Okay. And what became of that?
A. I can't remember exactly which all services we put in, but I do recall that
we talked about NPSA. I don't exactly remember.
Q. Okay. But for NPSA, parents have to demonstrate 30 days of sobriety:
correct?
A. I believe so.
Q. And isn't it true that Mother was testing positive on a near monthly basis?
A. I believe so.
Q. So how could NPSA be a viable option as a service?
Page 26 of 42
A. We discussed it as a possibility.
Q, But how is it a viable possibility if Mother is in active drug use?
A. So we were just going through all of the services we have to see which
one would fit the family best.
Hearing Transcript, YVol. 2, pages 241-243.
Ms. Daubner further testified that she was unaware if the Agency policies required her to
sit in on supervision meetings between the supervisor and caseworker, as testified to by Director
Schlegel. Id. a1 239.2 The Court found the overall oversight, management, review and
response of the caseworker, casework supervisor, casework manager and Agency as a whole
unreasonable.
For each of the aforestated reasons, this Court found that the Agency actions, in this case,
failed to meet the definition of reasonableness, according to their own outlined standards for
general procedures. For the same reasons, this Court found that, the lack of reasonable actions
did in fact equate to lack of reasonable efforts. Having made such determination, the Court then
sought to evaluate if the lack ofreasonable efforts rose to the level of lacking reasonable efforts
to prevent removal in light of the overall case history. Accordingly, a detailed evaluation of the
specific case history follows.
VI. Evaluation of Case History
This Case was first referred to the Agency on April 19, 2022, as a result of Mother being
positive for opiates at the time of the birth ofK.M.'s newborn sibling. The following day,
2 When later questioned regarding the amount of time taken to transfer the case, Ms. Daubner indicated that Ms.
Schilken was busy with several cases. When asked by the Court how it was determined which cases got the most
attention, Ms. Daubner testified, "It's usually the ones who are court active or ---yeah, It's mostly those." Hearing
Transcript, Vol. 2, page 249.
Page27 of 42
Caseworker Schilken met with Mother, Ms. Mc. zt t the hospital, had her sign releases and
saw Minor Child K.M. at the home of his grandparents. See Hearing Transcript, Vol. I, pg. 34.
This was not the first contact the Agency had with this family. Testimony established that six (6)
months earlier, in October of 2021, there was a referral made to the Agency regarding substance
abuse and substance trafficking by Father, Mr. M. Hearing Transcript, Vol. I, page 41-44.
Caseworker did not make contact that day with Father, Mr. M , but two (2) days later
on April 22, 2022, Caseworker Schilken did make contact with Father, Mr. M by telephone.
According to the testimony, Ms. Schilken asked Father what "his" plan was to keep his children
safe. Testimony was elicited during the hearing regarding this initial discussion with Father.
through which the following exchange took place:
Q. And, Ms. Schilken, were you aware that back in October of last year
(2021), there was referral made to the Agency regarding alleged substance
abuse and substance trafficking by Mr. M ?
A. When I had spoken with him I knew of his criminal history. I don't
know that I knew of all the prior history with the Agency. I just knew
what I had been involved in previously.
Q. Okay. So you were aware that Mr. M had a criminal history that
included violence offenses and drug-related offenses, correct?
A. I was, yes.
Q. But you were unaware that back in October of last year, that there was a
referral and that Father had refused drug and alcohol evaluation and
drug and alcohol testing by the Agency?
A. I didn't know that on the 22, No.
Q. When did you eventually learn of that. .. or actually. did you ever learn of
that?
A. I did review his past involvement. I don't know exactly when I did
that.
Page 28 of 42
Q. So knowing that Mr. M had an extensive criminal history, a history with
the Agency, you still felt that he was a good protective capacity for the
children, who one was a newborn infant and another who was a little over
a year old?
A. ]don't make those decisions, I provided the information to mny supervisor.
Q. And for the record, who is your supervisor
A. It's Amber Gauthier.
Q. Okay. So on April 22, after you spoke with Mr. M ,did you have a
conversation with your supervisor.
A. I actually sent a text message with all of his criminal history.
See Hearing Transcript, Vol. I, page 35. Testimony continued:
Q. And what was the substance of that conversation?
A. She had texted-Amber had texted me that Barb Daubner (Casework
Manager) had said that Father had some criminal history but didn't
know what it was. And I replied that I knew he had a criminal history,
and I texted all of the different years, the offense, the grading, and
also included that there was an SPLC (Subsidized Permanent Legal
Custodian) with some other children, so that they had that information.
See Hearing Transcript, Vol. I, pgs. 41-44.
An in-person assessment was not completed with Father, despite acknowledgement of
his recent criminal history and recent history with the Agency. Caseworker Schilken indicated
that at the time of initial referral she was instructed by her supervisor, Amber Gauthier, to follow
the family's identified plan for safety for the children. This plan involved Father serving as the
supervisor to Mother. "After I notified of the charges and everything that he had, she [Amber
Gauthier] had indicated that even given thosehis criminal history-that he's the biological
? On October 2, 2021, the Agency received a report alleging that Father, Mr, • sells cocaine, heroin, and pills.
The Agency reported that their assessment established that Mr. N lid not reside in the family home and was not
responsive to the attempted assessment. The Agency further reported that Ms, M _,Mother, was cooperative
with the assessment and the home was detennined to be appropriate with the case being closed on November 4,
2021. See Shelter Care Order ofAugust 12, 2022, pg. 3.
Page 29 of 42
father, and, you know, they have rights, and, essentially, we were moving ahead with that plan.
That was the "family plan." Hearing Transcript, Vol. I, page 104. Interestingly, Caseworker
Schilken did not conduct a drug test of Father until weeks later and the test at that time was
unobserved due to the Caseworker being of the opposite sex of parent? See Hearing
Transcript, Vol.I, pg. 43.
Initial testimony received from Casework Supervisor Amber Gauthier was consistent
with this account of Caseworker Schilken. Gauthier confirmed that she did a brief review of the
closing summary involving the family's previous involvement with the Agency and directed the
Caseworker to conduct a safety assessment. Consistent with the testimony of Caseworker
Schilken, Gauthier testified that, with the assistance of her Casework Manager, Barbara Daubner,
it was decided that Father would have the protective capacity to supervise Mother's contact with
K.M. and his newborn sibling. See Hearing Transcript, Vol. 2, pages 151-153. Gauthier
testified that she did not direct the caseworker to randomly drug test Father.25 Contrary to the
testimony offered by Schilken, Gauthier testified that she was unaware of Father's criminal
history involving violent and drug offenses and was further unaware that other children of Father
2°Q, And were either or both of them drug tested?
A. I attempted to drug test the mother. She was unable to produce a sample. I was,
however, able to drug test the father. Yes.
Q. And how were (sic) able to drug test him? Can you describe how that happened.
A. I did a urine drug screen.
Q. Did you observe that test?
A. I'm not permitted to.
Q. Okay. That's per your policies and procedures; correct?
A. Correct.
Caseworker did check the bathroom for stored urine but did not test Father for devices on his person. See
Transcript, Vol. 1, Pages 49-50.
Through the later testimony of Director Schlegel, it was learned that Ms. Schilken had the ability to conduct
an oral swab test on Father. See Hearing Transcript, Vol. 2, page 137.
25 Gauthier indicated that she later became aware that Father had previously refused drug and alcohol services by the
Agency during his open case in October 2021. See Hearing Transcript, Vol. 2 at pg. 157.
Page 30 of 42
were subject to a permanent legal custodianship due to drug related reasons. Id. Gauthier
testified that, she believed that she did not learn of this information until after the newborn's
death on August 1, 2022. Id. When asked if part of her job duties involved review of the
entire case file history of a family, Ms. Gauthier testified, "Yes, now it is ... After we had our
investigative practice training." Id. a1 153. Gauthier testified that the training took place
within the past month. Gauthier testified that no other investigation was done by her
individually and/or her manager to determine whether Father was appropriate to serve in a
protective capacity. Id. at 154.
At the time of Mother's discharge from Magee, she was enrolled in a drug and alcohol
program affiliated with the hospital. See Hearing Transcript, Vol. I, pages 121-122. Mother
was unsuccessfully discharged from the drug and alcohol program. Hearing Transcript, Vol. I,
pages 121-122. The Agency made a referral for a drug and alcohol evaluation of Mother on
April 25, 2022. Mother complied with this referral and was recommended for outpatient
treatment. Shortly thereafter, while at an appointment in Pittsburgh for Mother, the Agency
received another referral that Mother tested positive for fentanyl and there were "allegations
that both parents appeared to be under the influence." See Hearing Transcript, Vol. I, pg. 4.
In response to the referral, the Caseworker went to Mother's home on May 5th, but was unable
to make contact with the family after two (2) separate visits to the home and a visit to paternal
grandparent's home. Id. at 47-48. Finally, at 2:00 a.m. on May 6, 2022, the Caseworker was
finally able to make contact with the family. It was during this visit that the only drug test of
Father was conducted through an unobserved collection. In later testimony, Agency Director,
Anne Schlegel testified that only providing one (1) unobserved drug screen to Father, in
3· Gauthier testified that the training took place within the past month. Hearing Transcript, Vol. 2 at pg. I53.
Page 31 of 42
consideration of his criminal history, drug use history and history with the Agency "did not
align with the standards of the agency." Hearing Transcript, Vol. 2, pg. 100.
Five (5) days later, on May 11, 2022, Caseworker Schilken made a referral to Pressley
Ridge Crisis Services. The referral indicated,
"the Agency received a referral on 5/6 ... while in our office, S'
(Mother/M. 1) appeared to be visibly intoxicated, overly
sedated, slowed speech and response time when conversing."
See Hearing Transcript, Vol. 1, pg. 54, The referral continued:
"S; had previously admitted to her partner, who_is the other
primary caregiver of the children, is actively using illicitly. S
confirmed this again at this appointment on 5/5 that her partner is
also in active use."
Id. The Agency represented that the Crisis in-home services were referred with a goal of
"assisting Ms. M in establishing herself with a drug and alcohol treatment provider and
ensuring that the family is linked to community resources and services." See Shelter Care Order
ofAugust 12, 2022, pg. 2. There is no evidence that Crisis made this establishment.
Additionally, no assessments or "referrals" were made with regard to Father.
Caseworker testified that the Agency policy is for intake to work with a family in an
attempt to resolve matters so a case doesn't have to move on. "If we can't get the issues
rectified, then it would move on to ongoing " Hearing Transcript, Volume l, pg. 109.
Here, the referral was for Crisis services. Crisis services are considered the highest level of
service by the Agency and was referred very early on in this case.27 Pursuant to testimony,
7 See Hearing Transcript, Vol I, pgs. 96-97:
Q. And just for the record, what are crisis services?
A. Crisis services, they go in and work usually they go in initially and work very intensely with the
family to solve an issue, to get them involved with drug and alcohol or --
Q. Who is "they"?
A. In this case, it was Pressley Ridge that referred.
Page 32 of 42
Crisis was scheduled to be in the home at least twice per week, but in actuality only provided
once a week service. See Hearing Transcript, Vol. I, pg.II7. In addition to testifying that Crisis
services was to be in-home twice a week, but only visited once a week, Schilken agreed that
Crisis services are a five (5) to ten (10) hour a week service. See Hearing Transcript, Vol. 1, pg.
248.
The record reveals that there was no clear picture of the actual actions of Crisis
services in this case. Casework Supervisor Gauthier testified she recommended a drug and
alcohol evaluation, crisis, and STOPP services. Hearing Transcript, Vol. 2, pg- 158. Gauthier
indicated that Crisis Services would be in the home "at least up to five (5) times a week" and
Stop services is "just a notch below that at three (3) to five (5) times a week." Id. Gauthier
was unable to respond as to whether the services were actually implemented and thereafter
appeared to have a less than clear picture of events that transpired and/or whether referred
serves were actually implemented_or cooperated_with in the household? See Hearing
Transcript, Vol.2 at pgs. 158-184.
Q. Okay. And do you know what specific services Pressley Ridge was offering the family during the
pendency of this matter?
A. They were referred in to try-to ensure that she was following through with the drug and
alcohol before- I guess, I don't know what date .
. . . .. .. . . . .. . .. . . . . .. . .. . . .. .. .. . .. . and continuing .
A. So when I met with the mother at the hospital, she had said that she was involved in drug and
alcohol services. They were put in to ensure that she was maintaining those services. They were
working with her in the home.
238 When asked about specific contacts, communications and compliance, Caseworker Gauthier indicated a lack of
specific knowledge. In example:
• When asked about typical actions taken when a family is less than cooperative, Gauthier indicated that the
service provider and the Agency meet with the family. Gauthier was unsure if it that happened in this
case,
Page 33 0f 42
Upon questioning regarding the purpose of services generally, Schilken testified that, "in
making these referrals, that's to help them-in this case-to address the drug issues, to help
provide rides, get them involved with any kind of services like community services, if they are
having financial issues." See Hearing Transcript, Vol. I, pages 62-63. Schilken continued,
"That's what those services in intake are designed to do, to get the family to a point where if they
don't require ongoing services, then, you know, we can take care of that in intake." Id. Agency
Director Anne Schlegel testified that "services are based on the needs of the family, so it's
services that will reduce the risk of harm to the children and/or ensure the child's safety. See
Hearing Transcript, Vol. 2, pg. 76. Schilken indicated that when a family doesn't cooperate, the
Agency attempts to put in a different service "to try different levels to try and work with the
family." Despite this testimony, Schilken agreed that Crisis, is the highest level of service and
was implemented by the Agency very early in the case. Id.
Director Schlegel had a somewhat similar understanding of the Crisis Services, as
demonstrated in the following exchange regarding Pa Code §3130.35:
• Ms. Gauthier was unsure if and/or who would have communicated to the family what the Agency was
requiring of them.
• Ms. Gauthier made a referral on May l6, 2022 for a family group decision making/rapid response meeting
that she agreed should occur within 72 hours ofreferral, but was unaware of why the meeting did not
commence until June 3 of 2022.
• Gauthier believed that a provider was put in place for "the financial end of things" but was unsure of when
the referral was made, what provider or whether the services were actually provided.
• Gauthier was unaware of a new service recommended at the end of June because Crisis services was no
longer in the home.
• Gauthier was not "super familiar" with what family behavioral therapy services.involved, yet she
"possibly" made a referral for these services in late July of 2022.
• Gauthier is unaware of why a lesser degree of service was recommended in July when Crisis services were
recommended at the end of June and the family failed to cooperate.
• Gauthier was unable to recall if she made service referrals in this case or if the decisions were made by her
Caseworker or directed by her manager.
• Gauthier was unaware if FBT service intake occurred, but believed it did not occur.
Which concerning the information that Ms. Gauthier indicated she "did not know" or was "unaware of" until later,
leaves questions regarding the information shared.
Page 34 of 42
Q. And it indicates these are placement prevention reunification services?
A. That is correct.
Q. And then it says placement prevention reunification services include all
the following. It has a list of four: Counseling, parenting, homemaking
and part day service; right?
A. That is correct.
Q. And in this case you had indicated that counseling services were offered to
the family in April when they first entered the services of the agency;
correct?
A. They were offered and provided. (Emphasis Added)
Q. Okay. And what about parenting education?
A. Offered and provided." (Emphasis Added)
Q. And who provided the parenting education?
A. That's Pressley Ridge.
Q. Okay. And that is part of crisis services?
A. That is.
Q. Okay. What are crisis services?
A. It is a service that we will address any need that is identified by the agency
and by the family, but they are available to start with the family
immediately. There is no waitlist for it. They can start with the family
that day. It is an intensive service, so the agency would outline how often
that service should be in the home.
Q. Are there specific services offered within crisis services?
A. So crisis services provide a wide range of services. They connect to
community resources. They will help the family connect to whatever,
maybe a drug and alcohol evaluation or a psychological evaluation,
whatever that need it. They will offer parenting support. There is support
the family,
29 It should be noted, no other Agency representative indicated that parenting education was provided to
however, as questions continued, it became apparent that "offered and provided" meant that the Agency madea
referral for the services.
Page 35 of 42
with concrete goods, so it's a variety of services that the crisis services
provide.
Q. The statute also indicates homemaker and caretaker services. Do you
know whether or not that type of service was offered?
A. That's all part of crisis services.
Q. So to serve as part four (sic), part-day service, that would have been
offered?
A. That is correct.
Q. Okay. Do you know whether or not Pressley Ridge in fact offered
those services to the family?
A. I know that Pressley Ridge attempted to offer the services to the family.
Q. And when you say attempted, what do you mean?
A. They were referred. Their goals were outlined for them; however, the
family did not cooperate with the services.3
Hearing Transcript, Vol. 2, pgs. 77-79.
Additional testimony and evidence demonstrates that Crisis services were not
providing the level of service specific to the primary concerns of the Agency and Crisis was
0 The referral form, called an "In-home Provider Referral Form" that is utilized by the Agency is a pre-printed form
that pennits the person submitting the fonn to add details of the family- check certain boxes and provide a narrative.
See attached In-Home Provider Referral forms of 5/11/2022, 6/29/2022, and 7/21/22. The referral of May 11, 2022
indicates that the children are in significant risk of entering foster care but can remain safely at home with
prevention services. Services are requested immediately for 5-10 hours per week as STOPP/Crisis. The narrative
provides case history beginning with Mother's positive for opiates at the birth of K.M.'s infant sibling. The referral
also provides information regarding the referral on 5/6/2022 regarding both Mother and Father. Reference is made
to the "family plan" with Father supervising contact and information is provided regarding contact information
provided to Mother. The referral also provides general goals and checks off pre-printed boxes indicating the
"Family Needs/Concerns" include: Community Supports, Family Resources, Substance use/abuse, and
transportation.
The June 29, 2022 referral provides the same infonnation and also includes an update to reference earlier treatment
with Crisis that was closed when Mother went to rehab. The referral indicates that Mother left rehab AMA on June
23, 2022, however the Caseworker only became aware of this on June 28, 2022. The referral also indicates that
Mother tested positive for cocaine and fentany! during the visit. Caseworker includes infonnation regarding
financial issues and delinquency notices, unpaid fines and taxes. The referral requests for Family Needs/Concerns
remain the same.
Page 36 0f 42
tasked with providing services with incomplete and/or inaccurate infonnation. In actuality, the
Washington County Provider Case Summary for Pressley Ridge Crisis indicates the following
contacts between May 15, 2022 and June 16, 2022.
Date of Contact Tvoe of Contact Hours:
5.15.2022 Phone 0h03m
5.16.2022 Phone 0h03m
5.17.2022 Face to Face lh37m
5.19.2022 Phone 0h03m
5.19.2022 Face to Face 1h37m
6.1.2022 Face to Face lh47m
6.2.2022 Phone Ohl lm
6.3.2022 Phone Oh04m
6.3.2022 Telehcaltt I h0Om
6.13.2022 Phone 0h30m
6.14.2022 Phone 0h16m
6.15.2022 Phone 0h03m
6.16.2022 Phone 0ho5m
6.16.2022 Phone 0h02m
6.16.2022 Face to Face 2102m
I
Establishing that for the month, Crisis Services only provided a total of 9.23 hours to the family,
with only 7.03 hours being face to face contact, during the period of a month and including a gap
in service of over a week and a half in May and a gap of ten (10) days in June.31
Other than reports of case history involving substance abuse, and reports regarding
Mother's attendance at Crossroads Treatment Center for suboxone treatment, which were
erroneous, the Pressley Ridge report gives no indication of services provided by Crisis related to
connecting or establishing Mother with a support for substance abuse. It is presumed that some
3 Athough no direct testimony or evidence confirms the conclusion, it is presumed from review of exhibits that a
portion of the lapse in service is attributed to a reported lice infestation in the home. Although even this is
questionable considering it wouldn't prevent the phone contact previously initiated.
3 1n Key Communication from Pressley Ridge Crisis for the date span of May 15, 2022 until May 19, 2022:
indicate: NM's mother attends Crossroads Treatment Center in Canonsburg, PA due to substance abuse issues
(completes drug and alcohol screens; receives medication management services and takes Suboxone; appointments
are bi-weekly; she does not know last appointment date and does not know next appointment date/time)
In Key Communication from the date span of June 1, 2022 until June 3, 2022:
NM' s mother completed a meeting on 6.1.22 in order to review resource and service options available to the family
in assisting them financially (BluePrints (early intervention program, continuing education program, Linkedin);
Genesis (car seat, clothes); Catholic Charities (formula, diapers, therapy); PA Department of Public Welfare (food
Page 37 of 42
type of discussion of substance abuse took place inasmuch as the Crisis worker notified the
Agency of Mother's intent to go to rehab. But the record is absent of anything more supporting
this conclusion. Further, other than testimony of former Deputy Director, Angela Filotei, in
rebuttal of testimony provided by Agency Casework Manager Daubner, the Agency presented no
testimony or evidence supporting the effectiveness of referrals, the follow-up with referrals or
the appropriateness.
As stipulated to during adjudication, from May 15, 2022 until June 16, 2022 Crisis
Services were supposed to be in the home. But as previously noted, this referral was fraught
with problems. During an unannounced visit to the home on June 2, 2022, Caseworker Schilken
drug tested mother and she was positive for fentanyl, but not her prescribed buprenorphine. As a
result, a Family Group Decision Making Meeting (FGDM) was scheduled for the next day and
Mother was referred for another drug and alcohol evaluation which ultimately recommended in-
patient treatment. On June 3, 2022, the FGDM meeting was commenced but not completed
because Mother obtained an appointment at Crossroads.33 The record establishes that a follow-
stamps, subsidized childcare services); Hands and Feet Project (clothes and outfits for the children); Diaper Bank
(diapers, formula); and basic utilities (water, electric, heat)).
NM's mother and father completed an emergency Family Group Decision Making Meeting on 6.3.22 via telehealth
(the meeting was established by CYS; the meeting was necessary due to mother failing a drug screen on 6.1.22
administered by CYS; mother tested positive for Fentanyl; there is currently a family plan in place whereas
father must be present to provide supervision when mother is with the children; a Crisis/Rapid Response Family
Meeting Report was provided detailing the concems and actions that the family will take in adhering to CYS; a
follow-up meeting will be established within the next week; the meeting was facilitated by Justice Works)
See CYS Hearing Exhibit A8. Notably, no drug or alcohol service is listed.
The June 1, 2022 through June 3, 2022 communication fails to acknowledge that the Family Group Meeting was
NOT completed because Mother obtained an appointment with Crossroads. Documentation and testimony of
Mother's Crossroads appointment calls into question information regarding documents indicating that Mother is
attending Crossroads treatment. No party has submitted documentation supporting treatment of Mother at
Crossroads, in fact, in CYS Hearing Exhibit 410 The Washington Drug and Alcohol Commission CYS Referral, it is
noted that Mother was "seen at Crossroads on 5/14/2022for a readmission appointment, this was the only time
she was seen."
3 ft was later learned that Mother was non-compliant with the treatment intervention. See Shelter Care Order of
4August 12, 2022 at pg. 3.
Page 38 0f 42
up FGDM meeting was to be scheduled by the Agency, but never occurred. On or around June
9, 2022, Mother was accepted to an inpatient drug treatment program but was unable to attend
due to a lice infestation in the home. On June 16, 2022, Mother entered in-patient rehabilitation.
Unfortunately, Mother left rehab against medical advice (AMA) on June 23, 2022. See Hearing
Transcript, Vol. I, pg. 57.
Five (5) days later, Caseworker Schi!ken learned that Mother had left rehab AMA. In
response, the Caseworker went to the home and drug tested Mother who was positive for cocaine
and fentanyl. See Hearing Transcript, Vol. 1, pg. 57. Father was present, but Agency notes
indicate that he was unwilling to have serious discussion about Mother's relapse. Father did
discuss the financial stresses of the family.
On June 29, 2022, despite the previous ineffectiveness of the service, Caseworker
Schilken made a second referral for Pressley Ridge Crisis Services. See Hearing Transcript,
Vol. 1, pg. 57. This referral provided information similar to the first referral, but updated events
following Mother's untimely departure from rehab. In addition, on the same date, Supervisor
Gauthier made an informal referral for a follow-up FGDM meeting with Justice Works.
However, after Father indicated an unwillingness to participate, the Agency made no further
attempts to schedule the meeting.34 Interestingly, testimony establishes that, on the same date,
Father texted Caseworker Schilken and asked what the goals were to get the case closed.
Father stated, " I just feel there's no goals set for that and that's my main concern." Gauthier
testified that she was aware that Father had requested clarity of the family goals to get the case
closed, but she was unaware of what actions were taken by Caseworker Schilken to address these
concerns. Hearing Transcript, Vol. 2, pg. I91.
3Gauthier testified regarding the follow-up, "Mom and Dad said that they didn't have enough supports, and it was a
waste of everyone's time," Hearing Transcript, Vol. 2, pg. 154.
Page 39 of 42
Throughout the month of July, the Agency CAPs notes have references to the next step in
the case is for transfer. The case was not prepared for transfer throughout July and despite the
Family's failure to cooperate, the unaddressed Agency referral issues, and no new documented
or stated assessment, no appreciable change was made in the Agency response. Then, on July
21, 2022, another referral was made to Pressley Ridge, this time for Family Behavioral Therapy
(FBT), a step-down from the earlier, referred service. Multiple attempts were made to schedule
the FBT in-home services, but all were canceJled by Mother. Fifteen (15) days later,
Caseworker Schilken learned of the failed attempts. Another appointment was scheduled for
August 9 and Mother again cancelled.
It was only at this time, according to Caseworker Schilken, on August 10, 2022, she
began drafting her case transfer summary. Hearing Transcript, Vol. I, pg 78. Unfortunately, on
August 11, 2022, K.M.'s infant sibling was found unresponsive in the home and upon emergency
transport to the hospital was pronounced dead. Upon initial response to the home, law
enforcement documented drugs and paraphernalia, including a glass crack cocaine smoking pipe
throughout the residence. During a subsequent search, law enforcement located multiple
fentanyl/cocaine stamp bags, a marijuana pipe and a glass crack pipe. Several items were found
in the room where K.M.'s infant sibling was found unresponsive. K.M. was evaluated at
Children's Hospital and discharged, however medical staff directed his return to the hospital
after his urinalysis tested positive for cocaine, cocaine metabolites and fentanyl.
Parents fled the hospital and were later charged by law enforcement. They failed to
appear for the shelter hearing in the case but were later apprehended by law enforcement on
August 19, 2022. Both parents are housed at the Washington County Correctional facility facing
Page 40 of 42
multiple charges, including an amended charge of Criminal Homicide related to the death of
K.M.'s infant sibling.
VII. Conclusion
The ultimate cause and manner of death of K.M. 's sibling will be determined through the
criminal court proceeding and nothing in this Court's decision should relieve responsibility for
actions that parents took in this matter. However, this Court was not tasked with evaluating the
actions of parents. Here, the Court was tasked with detennining whether the Agency exercised
reasonable efforts in preventing or eliminating K.M.'s removal from the home. At shelter, with
parent's incarcerated and a deceased sibling, options to provide additional and/or alternate in-
home services, to provide for short term placement, engage the Court to assist compliance, or to
alter the Agency response in any way were eliminated.
At the time of adjudication, however, the Court was tasked with looking at what efforts
had been undertaken prior to the removal and whether they were reasonable. While the Agency
argues that any effort should obviate a finding of lack of reasonable efforts, that would dismiss
the requirements of 42 Pa. C.S.A. $ $6351(b). Based on the testimony and evidence offered, this
Court found that the efforts undertaken by the Agency were not reasonable.
By failing to foJlow their own internal policies and procedures, the case lacked the
oversight to provide for appropriate and reasonable assessments, actions and responses. And
although K.M. will likely never return to his family and the impacts to the Agency will only
involve financial inconveniences, this Court's decision finding a lack of reasonable efforts is
? our Supreme Court has "encouraged [trial court] to communicate clear expectations to the agency given that a
finding of reasonable efforts are lacking will have a 'significant impact' on the financial resources available to assist
children and their families. In re DC.D., 105 A.3d at 65, citing the Benchbook at 19.9.1 of the 2014 edition.
Page 41 of 42
the right and just decision. A contrary finding, in light of Agency policy and procedure and
simple common sense, would be granting the Agency the ability to fulfil reasonable efforts by
simply checking boxes with provider names on pre-printed sheets and slipping the same under
the door of a family, all while knowing the primary problem continues behind that door. That
simply is not reasonable.
By testimony of the Agency representatives, they did not follow their own policies and
procedures, they were non-compliant with state policies and procedures, they did not do an
appropriate assessment, and failed to follow-up. In short, the actions undertaken were not done
with even minimal effort to address the primary concerns in the present case, the history with the
Agency or the potential for future risk and/or harm to the family. This Court did not commit an
abuse of discretion in finding lack of reasonable efforts to prevent and/or eliminate removal and
respectfully requests that its decision be supported and affirmed.
Page 42 of 42
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IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY
COMMONWEALTH OP PENNSYLVANIA
JUVENlLE DIVISION
IN THE INTEREST OF:
K.M. CP-63-DP 64-22
(DOB 4/24/21)
A MINOR CHILD.
TYPE OF PLEADING:
CONCISE STATEMENT OF MATTERS
COMPLAINED OF ON APPEAL FILED
PURSUANT TO PA.R.A.P 1925(3)
FILED ON BEHALF OF:
WASHINGTON COUNTY CHILDREN
AND YOUTH SOCIAL SERVICE
AGENCY
!El
di a lit
Record
sy.lu!
COUNSEL FOR THIS PARTY:
AR, ESQUIRE
JOSEPH ASK
SUPREME COURT NO. 79630
295 THIRD. STREET
BEAVER, PA 15009
(724) 622-1499
RONALD D. ROJAS, ESQUIRE
SUPREME COURT NO. 79121
240 COMMERCE STREET
BEAVER, PA 15009
(724)775-7311
CHILDREN'S FAST TRACK
Appendix C