C. & K. Keller v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine and Kevin Keller, :
Petitioners :
: No. 1120 C.D. 2018
v. :
: Argued: September 10, 2019
Department of Human Services, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: October 10, 2019
Catherine and Kevin Keller (the Kellers) petition for review of the July
11, 2018 final order of the Department of Human Services (Department), Bureau of
Hearings and Appeals (BHA) denying the Kellers’ appeal of a decision by Berks
County Children and Youth Services (CYS) denying the Kellers’ application as a
foster family resource home.
Background
On May 3, 2017, the Kellers applied with CYS to be a kinship care
foster resource1 for their granddaughters. (Administrative Law Judge (ALJ)
Adjudication, Findings of Fact (F.F.) No. 1.) CYS informed the Kellers that they
1
“‘[K]inship care’ is a subset of foster care where the care provider already has a close
relationship to the child.” In re J.P., 988 A.2d 984, 987 n.3 (Pa. Super. 2010).
needed to complete a mental health evaluation in order to be considered as a foster
resource for CYS. (F.F. No. 2.) A kinship resource mental health evaluation of the
Kellers was completed on August 17, 2017. (F.F. No. 3.)
On October 11, 2017, CYS notified the Kellers that it would not
approve their application to be a foster care resource. (F.F. No. 7.) The notice
provided by CYS stated that its decision to deny the application was based on the
following factors: (1) the Kellers’ inability to demonstrate stable mental and
emotional adjustment, which could negatively affect a child placed in their care; (2)
the Kellers’ existing family relationships, attitudes, and expectations regarding their
own children could negatively affect a child placed in their care; (3) the Kellers’
inability to accept the relationship that a child placed in their care has with his own
parents; (4) the Kellers’ inability to care for a child with special needs, i.e., a physical
handicap or emotional disturbance; (5) the Kellers were unsuited to the
characteristics of a foster child; (6) the Kellers’ inability to work in partnership with
CYS; and (7) the Kellers failed to provide CYS with evidence of their financial
stability. (Certified Record (C.R.) at 15.)
The Kellers appealed CYS’s decision and a BHA ALJ conducted a
hearing on April 12, 2018, at which Mr. and Mrs. Keller; Dr. Richard Small, a
licensed psychologist; and CYS representative Amanda Wargo testified. Following
the hearing, the ALJ issued an adjudication and made the following, pertinent,
findings:
4. Dr. Small opined that he had significant concerns
about the [Kellers’] personal history with their own
children.
5. Mrs. Keller reported being molested through much
of her childhood by a variety of people. Dr. Small
stated that it was difficult to ascertain whether Mrs.
Keller had ‘worked through’ those issues, and he
2
opined that the problems of her own childhood
suggest that Mrs. Keller’s problems may have been
a contributing factor to the family dysfunction.
6. Dr. Small opined that the Kellers’ negative attitudes
toward Mrs. Keller’s daughter (the mother of their
granddaughters) could create negative attitudes
towards her children were they to be placed in the
[Kellers’] care.
...
10. The [Kellers’] monthly expenses exceed their
monthly income by approximately $220.
11. The police have been called to the [Kellers’]
residence on numerous occasions.
12. Mr. Keller is not on speaking terms with one of his
children and called the police after being threatened
by another.
13. Mrs. Keller had three adult children. Of those three,
two were placed in a group home. One was
involved in juvenile probation and eventually into
placement. Another child had a [protection from
abuse] PFA placed against him by Mrs. Keller. All
three children have a history of drug use.
14. On the application, in response to the question ‘Are
you comfortable with a birth parent knowing the
physical location of your home or having your
telephone number?’ the [Kellers] responded ‘no.’
The [Kellers] added in the margin ‘My daughter has
destroyed items in my home and I do not want her
on the property.’
(F.F. Nos. 4-6, 10-14) (citations omitted).
The ALJ noted that under the foster care regulations, when assessing
whether an applicant should be approved as a foster parent, the foster care agency
must consider the ability of an applicant to work in partnership with the agency. The
ALJ also explained that one of the goals of the foster care system is to reunify birth
parents with their children. The ALJ concluded that the Kellers had not
3
demonstrated that they were willing to work with CYS. The ALJ observed that Mrs.
Keller has a difficult relationship with her daughter, the mother of the children in
question, and had specifically advised on her application that she was not
comfortable with a birth parent knowing her telephone number or address and that
her daughter had destroyed items in her home. Therefore, the ALJ determined that
“any reunification efforts would be stalled by the [Kellers] due to the nature of their
relationship with Mrs. Keller’s daughter. As such, it [was] safe to assume that the
[Kellers] do not have the ability to work in partnership with CYS as required by the”
regulations. (ALJ Adjudication at 10.)
The ALJ also determined that under the regulations the agency must
consider whether the applicant is able to care, nurture, and supervise children. The
ALJ found that Mr. Keller was not on speaking terms with one of his children and
had called the police after being threatened by another. The ALJ further noted that
Mrs. Keller had three adult children, of whom two had been placed in a group home
as children, one was involved with juvenile probation and put into a placement
program, one had a PFA placed against him by Mrs. Keller, and all three had a
history of drug use. The ALJ concluded that “[i]f we allow the [Kellers] to raise
additional children, there is a good chance that the pattern will continue. The hearing
record is clear.” Id. Accordingly, based on the hearing record the ALJ determined
that the Kellers “lacked the ability to provide care, nurturing and supervision to their
own children, much less children who are wards of the county.” Id.
Next, the ALJ explained that the regulations require the agency to
consider the applicant’s ability to demonstrate stable mental and emotional
adjustment and that, if mental stability is in question, the agency may request a
psychological evaluation. The ALJ noted that CYS had requested a mental health
evaluation of the Kellers and that Mrs. Keller had reported “a life filled with drama,
including being molested through much of her childhood by a variety of people.”
4
Id. The ALJ observed Dr. Small’s conclusion that it was difficult to ascertain
whether Mrs. Keller worked through these issues and that Mrs. Keller’s own
children’s problems “suggest that Mrs. Keller’s problems may have been a
contributing factor to the family dysfunction.” Id.
Additionally, the ALJ explained that under the regulations, when
deciding whether a foster parent applicant should be approved, the agency must
assess the applicant’s existing family relationships, attitudes, and expectations
regarding the applicant’s own children and parent/child relationships and, especially,
as they might affect a foster child. The ALJ noted that there clearly was “an issue
between the [Kellers] and Mrs. Keller’s daughter” and that the “problems involving
the other children of the [Kellers] [was another] cause for concern.” (ALJ
Adjudication at 11.) The ALJ was also concerned that the police had been
summoned to the Kellers’ home numerous times as many of those incidents involved
domestic disputes. Thus, the ALJ concluded that “[a]s a whole, the hearing record
demonstrate[d] a fractured family dynamic.” Id.
The ALJ also observed that the regulations require a foster home to
have financial stability. Based on the information provided by the Kellers in their
application, the ALJ determined that the Kellers’ monthly expenses exceeded their
monthly income by approximately $220. Id.
The ALJ made the following conclusion:
Looking at the totality of the circumstances, the [Kellers]
presented, both to Dr. Small and at [the] hearing, as a
pleasant and friendly couple. However, when you delve
into the information provided both by the [Kellers] and by
CYS, it is clear that the [Kellers] should not be approved
as a foster resource home. The [Kellers], especially Mrs.
Keller, have a long history of family dysfunction. The
[Kellers] are quick to downplay, deny, or disregard the
issues that they have had within both their separate homes
when not a couple, and the familial home and the
5
numerous calls to the police. Mrs. Keller’s mental
stability is in question, as are the family finances. The
children the [Kellers] raised have a history of placement,
substance abuse, juvenile detention, PFAs, DUIs, and
threats of violence. Any one of these issues would have
been good cause for denial of their application. Taken as
a whole, there is no doubt.
...
The burden of proof was on [CYS] to demonstrate, by
substantial evidence, that the [Kellers] failed to meet the
statutory guidelines necessary to be considered as a foster
home. As per the analysis above, CYS has done so. As
such, [CYS] met their burden of proof that their decision
to deny the [Kellers’] application as a kinship foster
resource was correct. For all the foregoing reasons, it is
my Recommendation that the [Kellers’] appeal be denied.
Id. BHA adopted the ALJ’s recommendation in its entirety.
Discussion
The Kellers now petition for review of BHA’s order,2 arguing (1) the
ALJ did not render an unbiased and impartial decision, which necessitates
remanding the matter for another hearing before a neutral ALJ and (2) there is not
substantial evidence in the record to demonstrate that the Kellers are unable to care
for foster children.
2
“This Court’s review in an appeal from an order of [BHA] is limited to determining
whether constitutional rights were violated, whether any errors of law were committed and whether
any necessary factual findings are supported by substantial evidence.” Burns v. Department of
Human Services, 190 A.3d 758, 761 n.1 (Pa. Cmwlth. 2018).
6
A. Judicial Bias
We first address the Kellers’ bias argument. The Kellers argue that
throughout the hearing the ALJ exhibited antagonism toward them. The Kellers
argue that at the beginning of the hearing, the ALJ stated “if you prevail in this
hearing, you are not getting your grandchildren” and “[w]in lose or draw here, you
are not getting your grandchildren because [CYS] is not placing them with you. . . .
I don’t like wasting people’s time.” (Kellers’ Br. at 8.)
The Kellers also argue the ALJ made antagonistic remarks in response
to an objection lodged by the Department. The Department objected to a line of
questioning about the Kellers’ foster care application on the grounds that they
verified the document and were at risk of perjuring themselves. The ALJ stated that
if Mr. Keller answered questions differently than what was written in the application
“he’s cutting his own throat,” and that “if he says it’s incorrect, then clearly that
signature is worthless on the back. . . . So if you’re willing to do that, be my guest
cause it’s only going—it’s only going to do damage.” (Kellers’ Br. at 12.) The
Kellers maintain it was inappropriate for the ALJ to make such comments because
due process demands impartiality and fairness and that the ALJ’s hostile remarks
evidenced judicial bias.
In contrast, the Department argues that the ALJ’s comments did not
exhibit bias. Regarding the comments about the Kellers not getting their
grandchildren, the Department maintains that the ALJ was merely advising the
parties of the scope of his authority, because he lacked authority to order a child
placed in a specific foster care household, and that he was in no way announcing
that he had already decided the outcome of the hearing. With regard to the perjury
comments, the Department alleges that the ALJ simply advised the Kellers that
verified signatures were not to be taken lightly and that admitting to signing a
document with false statements might be detrimental to their case. In any event, the
7
Department notes that the ALJ overruled the objection, permitted Mr. Keller to
answer the question, and Mr. Keller verified that the statements in the application
were correct.
“[A] fair trial in a fair tribunal is a basic requirement of due process.”
Withrow v. Larkin, 421 U.S. 35, 46 (1975); see also Johnson v. Mississippi, 403 U.S.
212, 216 (1971) (“Trial before an ‘unbiased judge’ is essential to due process.”);
Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114,
1145 (Pa. Cmwlth. 2014) (“A fair trial before a fair tribunal is a basic and
fundamental due process requirement.”). This basic precept “applies to
administrative agencies which adjudicate as well as to courts.” Withrow, 421 U.S.
at 46. “A showing of actual bias is unnecessary in order to assert a cognizable due
process claim; the mere potential for bias or the appearance of non-objectivity may
be sufficient to constitute a violation of that right.” Penn Street, 84 A.3d at 1146.
Yet, opinions that are formed by a “judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also Cellucci v.
Laurel Homeowners Association, 142 A.3d 1032, 1045 (Pa. Cmwlth. 2016) (same);
Penn Street, 84 A.3d at 1147 (same). Accordingly, “judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality challenge.”
Liteky, 510 U.S. at 555; see also, Celluci, 142 A.3d at 1045 (same); Penn Street, 84
A.3d at 1147 (same). Such judicial remarks may support a bias or partiality opinion
“if they reveal an opinion that derives from an extrajudicial source; and they will do
so if they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky, 510 U.S. at 555. “Not establishing bias or partiality,
8
however, are expressions of impatience, dissatisfaction, annoyance, and even anger,
that are within the bounds of what imperfect men and women . . . sometimes display.
A judge’s ordinary efforts at courtroom administration—even a stern and short-
tempered judge’s ordinary efforts at courtroom administration—remain immune.”
Id. (emphasis in original).
Here, the Kellers point to two instances that demonstrate the ALJ’s
alleged bias. The Kellers argue that in the first instance the ALJ stated that they
would not get their grandchildren under any circumstances. At the hearing, the
following exchange occurred:
JUDGE: Okay. And just as an aside because of the nature
of these types of hearings, did—at the pre-hearing
conference, did the Judge go over the issue between the
application and any placement that the County may or may
not place the child, whether your client’s [sic] win or lose
this hearing? Did they go over anything of that nature?
ATTORNEY GRIMES: They—Judge McMahon did just
for—at the—very beginning at the call explain that it’s just
with regard to licensing, that they can’t order the child
being placed there. I’m not sure if Ms. Gray was on that
call.
ATTORNEY GRAY: I don’t recall, honestly.
...
JUDGE: All. Right. Well, I’ll just—I’ll just go over it
briefly again just to make sure. The issue that [BHA] has
regarding jurisdiction is simply with the application
process. [BHA] does not have jurisdiction regarding
placement of any children. It looks, in, in the hearing
record—again, we haven’t had the hearing yet, but it looks
as if Mr. and Mrs. Keller, you are only looking for specific,
your grandchildren, as a foster resource and no other
children. Is that correct?
9
ATTORNEY GRAY: That’s correct.
JUDGE: Okay. Then let me ask [CYS] this question.
That if the Kellers would prevail, what is [CYS’s] position
on placement of those children with the Kellers?
ATTORNEY GRIMES: We are not in agreement. And
the GuardIa. [sic] Ad Litem for the child is not in
agreement as well, as well as the biological parents.
JUDGE: Okay. So I just want everyone understanding
this, going forward, that if you prevail in this hearing, you
are not getting your grandchildren. Okay? Just so
you’re—everyone is on the same page. I don’t have
jurisdiction over this. I cannot make them do that.
And, in fact, if that [CYS] is not going to do that, you’re
not going to get them. So if you would prevail in this
hearing, then you would be deemed a foster resource for
[CYS], if they wish to place any other random foster
children in your care, other than your grandchildren. But
I want to make this clear, I’m always an individual that
lays my cards out on my sleeve. Win, lose or draw here,
you are not getting your grandchildren because [CYS] is
not placing them with you. Are we all on the same page?
I just, I don’t want to—I don’t like wasting people’s time.
I don’t like, you know, giving anyone a false sense of hope
or security or anything along those lines. I’m not saying
regardless of how this comes out, I just want everyone to
know, be aware, that your grandchildren are not being
placed no matter what happens here today. Are we
understanding that and we’re okay with that?
ATTORNEY GRIMES: Yes.
ATTORNEY GRAY: Yes.
(C.R. at 101-104; Notes of Testimony (N.T.), 4/12/18, at 7-10) (emphasis added).
10
Based on our review of the record, the ALJ did not express such “deep-
seated favoritism or antagonism” toward the Kellers that a fair judgment was
impossible. Liteky, 510 U.S. at 555. Instead, the ALJ merely explained the scope
of his jurisdiction and his lack of authority to order that the Kellers’ granddaughters
be placed with them.
This Court has previously held that under the Juvenile Act,3
“jurisdiction over disputes regarding adoption, custody and placement of dependent
children is vested in the court of common pleas.” Luzerne County Children and
Youth Services v. Department of Public Welfare, 826 A.2d 84, 86 (Pa. Cmwlth.
2003) (emphasis added); see also Burns v. Department of Human Services, 190 A.3d
758, 763 (Pa. Cmwlth. 2018); Ramer v. Department of Human Services (Pa.
Cmwlth., No. 1066 C.D. 2015, filed December 10, 2015), slip op. at 6.4 Thus, the
Department lacks the authority to order a particular child be placed in a foster care
household. Luzerne County, 826 A.2d at 86. Further, section 6351(a) of the Juvenile
Act states that if a child is found dependent “the court may make any of the
following orders of disposition best suited to the safety, protection and physical,
mental, and moral welfare of the child” including, transferring temporary legal
custody to “any relative.” 42 Pa.C.S. §6351(a) (emphasis added); see also Conklin
v. Department of Public Welfare, 522 A.2d 1207, 1210 (Pa. Cmwlth. 1987) (noting
that although a children and youth services caseworker “may make an initial
recommendation regarding the ultimate disposition of a foster child, that
recommendation is clearly not a final order or adjudication and is always subject to
the approval of the court” since section 6351 of the Juvenile Act “empowers . . . the
3
42 Pa.C.S. §§6301-6365.
4
Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).
11
court to order the transfer of legal custody of a dependent child to a foster home or
public welfare facility”).
Here, the ALJ accurately explained to the parties that he could only
make recommendations and findings of fact regarding CYS’s decision to deny the
Kellers’ application to be a foster family resource and that he did not have
jurisdiction to order the placement of the Kellers’ granddaughters. This was not
evidence of bias, but instead, reflects that the ALJ was merely attempting to manage
the parties’ expectations with respect to the purpose of the hearing.
The Kellers also argue that a second exchange involving the ALJ’s
response to the Department’s objection to a line of questioning on perjury grounds
is indicative of bias. After the Kellers’ attorney showed Mr. Keller his foster care
application, which he had submitted to CYS, the following exchange occurred:
ATTORNEY GRAY:
Q: Mr. Keller, could you look at page 11? Can you
look at the amounts on page 11 for net income?
A: Uh-huh (yes).
Q: Is that in your handwriting or someone else’s?
A: Actually, that is in M[r]s. Keller’s handwriting.
Q: Is that correct?
ATTORNEY GRIMES: Your Honor, I’m going to object
if she’s going to—this, this document is verified. So if
she’s now going to perjure—tell—basically have her
client admit to perjury, I’m going to be very concerned
about because both Mr. and Mrs. Keller signed this
document verifying it’s [sic] accuracy under penalty of
perjury on page 29.
JUDGE: I mean, if you want him to answer that, and if he
says that it’s incorrect, then you’re—he’s cutting his own
throat, have at it. I mean, I’ll allow you to ask the question
because that’s what’s happening.
12
ATTORNEY GRAY: Well, if someone has made a
mistake, it’s not perjury.
JUDGE: Well, I know. But it’s a—it’s a blatant error that
they signed off that everything in that document is true and
correct. So you don’t just make mistakes on documents
like that. So if you wish to do that, have it. Ask the
question.
ATTORNEY GRAY: I will.
JUDGE: Okay. Because, if he says it’s incorrect, then
clearly that signature is worthless on the back. So just so
we’re all on the same page, because you don’t—when you
sign a document and it’s on—signed multiple times on
here, on page five and on page 29, it says, not only under
penalty of perjury, but you are swearing that everything on
here is accurate. You don’t just willie nillie fill it in and
say, later on, yeah I screwed up. So if you’re willing to do
that, be my guest cause it’s only going—it’s only going to
do damage. That’s all I’m telling you. Go ahead. Ask the
question.
ATTORNEY GRAY:
Q: Is the amount correct?
A: At the time I signed this, to the best of my
knowledge that was correct.
(N.T., 4/12/18, at 74-76.)
Based on the preceding exchange, this Court can appreciate why the
Kellers might express concern to the ALJ’s comments. Comments such as “cutting
his own throat” and suggestions that a signature will be rendered “worthless” could
have the potential to set hearing participants on edge; especially in cases such as
these where the participants have limited to no experience appearing in a tribunal or
before an adjudicator. While the particular phraseology could have been better
chosen, taken in the context in which the ALJ expressed his thoughts in this matter,
13
we cannot find that the ALJ rendered an impartial adjudication. However, in another
context, the use of these words might have had another unintended result.
Nevertheless, the foregoing exchange did not display “deep-seated
favoritism or antagonism” amounting to judicial bias. Liteky, 510 U.S. at 555. While
the ALJ’s comments regarding counsel for the Kellers’ line of questioning were
somewhat disapproving, judicial remarks that “are critical or disapproving of . . .
counsel [or] the parties . . . ordinarily do not support a bias or partiality challenge.”
Id. As the arbiter of credibility, see S.T. v. Department of Public Welfare, 681 A.2d
853, 856 (Pa. Cmwlth. 1996), the ALJ appears to have been advising Mr. Keller and
his attorney that if Mr. Keller answered questions concerning his income differently
than what was written on the application, it would damage the Kellers’ credibility
because the application was signed under penalty of perjury. Such an opinion
formed on the “basis of facts introduced or events occurring in the course of the
current proceedings” does not constitute bias. Liteky, 510 U.S. at 555. Moreover,
the ALJ overruled the objection, permitted Mr. Keller to answer the question, who
verified what was written on the application, and there is no evidence that the ALJ
considered the exchange in his decision. Accordingly, we conclude that the Kellers
have not demonstrated that the ALJ exhibited such a high degree of favoritism or
antagonism to make a fair judgment impossible.
B. Substantial Evidence
We next turn to the Kellers’ argument that there is not substantial
evidence in the record to demonstrate that they are unable to care for foster children.
The Kellers note that in making his decision, the ALJ placed weight on the fact that
the Kellers had difficult relationships with their children and that Mrs. Keller’s
children had been placed in group homes as children and had struggled with drug
abuse. The Kellers argue that it was unfair for the ALJ to blame them for the actions
14
of their adult children whom they do not control. The Kellers also contend that the
ALJ should not have relied on Dr. Small’s opinion that it was difficult to ascertain
whether Mrs. Keller had worked through the issue of being abused as a child. The
Kellers maintain that CYS “turn[ed] the victim Mrs. Keller into a victim again by
blaming her stating her problems may have been a contributing factor to the family
dysfunction.” (Kellers’ Br. at 16) (internal quotation marks omitted).
Conversely, the Department argues there is substantial evidence in the
record to support the decision to deny the Kellers’ home as a foster family resource.
The Department argues that the foster care regulations list a number of factors to be
considered by an agency when approving a home as a foster family resource. The
Department asserts that CYS presented substantial evidence demonstrating the
Kellers’ inability to meet many of these factors. The Department notes that the
Kellers were unable to demonstrate that they were emotionally and mentally stable.
The Department maintains that the ALJ did not focus on the behavior of the Kellers’
children, but rather, the actions of the Kellers toward their children and how their
relationships with their children reflect on how they may act toward their
granddaughters. Viewing the totality of the evidence, the Department argues there
is more than substantial evidence that the Kellers failed to qualify as a foster family
resource.
Initially, we note that when determining whether factual findings are
supported by substantial evidence, this Court is required to “give the party in whose
favor the decision was rendered the benefit of all reasonable and logical inferences
that may be drawn from the evidence of record; the weight and credibility to be
accorded this evidence is solely within the province of the . . . fact finder.” S.T., 681
A.2d at 856. Substantial evidence is defined as “evidence which outweighs
inconsistent evidence and which a reasonable person would accept as adequate to
15
support a conclusion.” F.R. v. Department of Public Welfare, 4 A.3d 779, 783 (Pa.
Cmwlth. 2010).
The foster care regulations at issue provide as follows:
(a) The [Foster Family Care Agency (FFCA)] shall
consider the following when assessing the ability of
applicants for approval as foster parents:
(1) The ability to provide care, nurturing and
supervision to children.
(2) A demonstrated stable mental and emotional
adjustment. If there is a question regarding the
mental or emotional stability of a family member
which might have a negative effect on a foster child,
the FFCA shall require a psychological evaluation
of that person before approving the foster family
home.
(3) Supportive community ties with family, friends
and neighbors.
(b) In making a determination in relation to subsection (a)
the FFCA shall consider:
(1) Existing family relationships, attitudes and
expectations regarding the applicant’s own children
and parent/child relationships, especially as they
might affect a foster child.
(2) Ability of the applicant to accept a foster child’s
relationship with his own parents.
(3) The applicant’s ability to care for children with
special needs, such as physical handicaps and
emotional disturbances.
(4) Number and characteristics of foster children
best suited to the foster family.
(5) Ability of the applicant to work in partnership
with an FFCA.
55 Pa. Code §3700.64. Further, section 6344(d)(8)(viii) of the Child Protective
Services Law mandates that a prospective foster parent provide evidence of financial
stability. 23 Pa.C.S. §6344(d)(8)(viii).
16
In arguing that the ALJ’s decision was not supported by substantial
evidence, the Kellers do not challenge any of the specific factual findings made by
the ALJ, but instead, appear to object to the weight given certain evidence, which
resulted in the ALJ’s conclusion that the Kellers were unable to care for foster
children. We conclude that the ALJ carefully weighed the evidence presented in
relation to the factors outlined in 55 Pa. Code §3700.64 and section 6344(d)(8)(viii)
of the Child Protective Services Law to reach his decision.
First, in evaluating whether the Kellers were able to work in partnership
with CYS as required by 55 Pa. Code §3700.64(b)(5), the ALJ noted that on the
foster care application, Mrs. Keller stated that she was not comfortable with her
daughter, the mother of the children in question, knowing her home and telephone
number, that her daughter had destroyed items in her home, and that she did not want
her daughter on her property. (ALJ Adjudication at 10) (citing C.R. at 31). Although
not always possible, one of the goals of the foster care system is the reunification of
foster children with their birth parents, see, e.g., In re Adoption of S.E.G., 901 A.2d
1017, 1019 (Pa. 2006); the ALJ concluded that any reunification efforts would be
stalled by Mrs. Keller’s relationship with her daughter and, therefore, that the Kellers
lacked the ability to work in partnership with CYS.
The ALJ also assessed whether the Kellers were able to provide care,
nurturing and supervision for foster children as required under 55 Pa. Code §3700.64
(a)(1) of the foster care regulations. When making the assessment under this section,
the regulations further provide, under 55 Pa. Code §3700.64(b)(1)(2), that the ALJ
should look at existing family relationships and the ability of the applicant to foster
a relationship with the child’s parents. In this regard, here, the ALJ noted that Mr.
Keller was not on speaking terms with one of his children, had called the police after
being threatened by another, and that Mrs. Keller’s children had encountered
significant problems during their lives, including all three being placed in group
17
homes as children, one being subject to juvenile probation, one having had a PFA
placed against him by Mrs. Keller, and all three suffering from drug abuse. (ALJ
Adjudication at 10) (citing CYS Kinship Resource Evaluation, C.R. at 61-65; N.T.,
4/12/18, at 82-84, 107-18).
The ALJ also, pursuant to 55 Pa. Code §3700.64(b)(1), evaluated the
Kellers’ existing family relationships, attitudes, and expectations regarding their
own children and parent/child relationships, especially as they might affect a foster
child. The ALJ found that Mrs. Keller’s relationship with her daughter, problems
involving the Kellers’ other children, and the numerous times that police had been
summoned to the Kellers’ home for domestic disputes were all causes for concern
and might impact foster children placed in their care. (ALJ Adjudication at 11.)
Further, based on the Kellers’ foster home application, in which the Kellers reported
that their monthly expenses exceed their monthly income by approximately $220,
the ALJ concluded that the Kellers had not demonstrated financial stability pursuant
to section 6344(d)(8)(viii) of the Child Protective Services Law. (ALJ Adjudication
at 11) (citing C.R. 36-37).
Additionally, the ALJ examined whether the Kellers had “demonstrated
stable mental and emotional adjustment” as required under 55 Pa. Code
§3700.64(a)(2). The ALJ noted that Mrs. Keller reported being molested by a
variety of people throughout her childhood and that Dr. Small opined that it was
difficult to ascertain whether Mrs. Keller had resolved these issues and that Mrs.
Keller’s problems may have been a contributing factor to her family’s dysfunction.
(ALJ Adjudication at 10) (citing C.R. at 61-65; N.T., 4/12/18, at 17-18). Although
the Kellers contend that the ALJ engaged in victim blaming, the ALJ did not blame
Mrs. Keller for what happened to her but appears to have concluded that, based on
Dr. Small’s opinion, Mrs. Keller had not demonstrated stable mental and emotional
adjustment.
18
In light of the above, the ALJ concluded that the Kellers and, “especially,
Mrs. Keller, have a long history of family dysfunction” and “[i]f we allow the
[Kellers] to raise additional children, there is a good chance that the pattern will
continue.” (ALJ Adjudication at 10-11) (emphasis added). Contrary to the Kellers’
assertion, the BHA did not blame them for the actions of their children, but instead,
concluded that due to the difficulties they faced in raising their own children and the
lack of financial stability, it seemed probable this would impact their ability to
provide care, nurturing and supervision to foster children, as required under the
regulations. This process of assessment, as uncomfortable as it might be, is required
to be undertaken by the ALJ under the regulations. If the findings therefrom dictate
a certain result, the ALJ does not have widespread discretion to alter that result, even
though the result might be deeply disappointing to any well-intended applicants.
The Court views these findings only as part of the assessment process, and not as a
negative reflection on the applicants personally.
On the other hand, we conclude the ALJ’s finding that Mrs. Keller had
not demonstrated stable mental and emotional adjustment was not supported by
substantial evidence in the record. Dr. Small merely concluded in his psychological
report that “it was difficult to ascertain whether M[r]s. [Keller] [had] worked
through the issues of her trauma or predict whether her abuse and neglect would re-
traumatize her.” (C.R. at 64) (emphasis added). Dr. Small did not actually conclude
that Mrs. Keller had not worked through the issues of her traumatic childhood; thus,
any finding to the contrary is speculative and is not a “reasonable and logical
inference” that can be drawn from Dr. Small’s psychological report. S.T., 681 A.2d
at 856. Thus, the psychological report does not support the finding that Mrs. Keller
had not demonstrated stable mental and emotional adjustment because of her
traumatic upbringing.
19
Nonetheless, other evidence of record, heretofore discussed, supports
the ALJ’s determination that CYS met its burden of demonstrating that the Kellers
failed to meet the statutory guidelines necessary to be considered as a foster resource
home. In particular, the evidence of the Kellers’ financial instability, as well as Mrs.
Keller’s complicated relationship with her daughter, the mother of the foster children
in question, which had the potential to negatively impact the children and make
reunification with their mother more difficult, provides strong support for the ALJ’s
determination. Thus, we must conclude there is substantial evidence in the record
to support the ALJ’s decision denying the Kellers’ application to be considered a
foster family resource due to their inability to meet several of the factors listed in 55
Pa. Code §3700.64.
Conclusion
Accordingly, we are constrained to affirm the BHA’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine and Kevin Keller, :
Petitioners :
: No. 1120 C.D. 2018
v. :
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 10th day of October, 2019, the July 11, 2018 order of
the Department of Human Services, Bureau of Hearings and Appeals, is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge