In the Interest of: C.K., A Minor Appeal of: CYF

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2017 PA Super 175In the Interest of: C.K., A Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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Appeal of: Allegheny County Office of :
Children, Youth and Families : No. 1467 WDA 2016
Appeal from the Order August 30, 2016
in the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0001320-2014
In the Interest of: N.L., A Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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Appeal of: Allegheny County Office :
of Children, Youth and Families : No. 1468 WDA 2016
Appeal from the Order August 30, 2016
in the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0001321-2014
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
OPINION BY STRASSBURGER, J.: FILED JUNE 05, 2017
Allegheny County Office of Children, Youth and Families (CYF) appeals
from the order entered August 30, 2016, in the Court of Common Pleas of
Allegheny County, wherein the trial court determined CYF did not make
reasonable efforts to finalize the permanency plan for minor children, N.L.,
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*
Retired Senior Judge assigned to the Superior Court.
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born in January 2009, and C.K., born in August 2011, (collectively,
Children). We affirm.
K.C. (Mother) is the mother of both Children. J.K.-T (Father) is the
father of C.K.1 On September 29, 2014, the trial court adjudicated Children
dependent and “highlighted Mother’s experience of domestic violence and []
Children’s exposure to domestic violence as primary issues to be addressed.”
Trial Court Opinion, 11/23/2016, at 2. Children were removed from Mother
for a third time on October 29, 2014, and have remained in the same foster
care placement ever since. Id. At the time of the order at issue, the
permanency goal was “return to parent or guardian” with a concurrent goal
of adoption. Id.; Order, 8/30/2016, at 1.
Approximately one year after Children’s third removal, Dr. Rosenblum,
a psychologist, conducted a series of updated evaluations concerning the
family.2 See Psychological Evaluation, 10/27/2015 & 10/29/2015, at 1. In
Dr. Rosenblum’s opinion, after undergoing counseling and experiencing a
stable family life with their foster parents, Children had “made progress in
dealing with extensive anxieties and emotional insecurities stemming from
their past exposure to domestic violence and substance abuse difficulties on
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1
The parental rights of J.L., the father of N.L., have been terminated and he
is not a party to this appeal. See Trial Court Opinion, 11/23/2016, at 2.
2
Dr. Rosenblum had conducted previous evaluations of the family, but
Mother did not show up for her appointments. See Psychological Evaluation,
10/27/2015 & 10/29/2015, at 1.
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the part of their parents.” Id. at 11. Nevertheless, N.L. “continue[d] to
evidence concerning emotional insecurities, anxiety and a lack of confidence
which stems from the trauma and instability that she experienced when
living with [Mother and Father].” Id.
After opining that Mother had developed “very little insight” into the
changes she needed to make, Dr. Rosenblum recommended that, inter alia,
CYF refer Mother “for family therapy sessions with [Children] at a program
like Three Rivers Adoption Coun[ci]l (TRAC),” stating he was “not convinced
that [Mother] fully underst[ood] the impact [on Children of] being exposed
to domestic violence and other sources of trauma in their family life.” Id.
He concluded that Mother needed “to be given every opportunity to succeed
with her desire to reunify with [Children]” but opined that alternative
permanency goals may be necessary for Children if Mother did not begin to
“demonstrate significant changes with her personal functioning and
lifestyle.” Id.
After admitting Dr. Rosenblum’s evaluation into the record at the next
permanency hearing on November 17, 2015, the trial court ordered “CYF to
explore inclusion of Mother in Children’s therapy, and facilitate Mother’s
participation if indicated by therapist.” Order, 12/20/2015, at 3. The trial
court elaborated further.
As emphasized in previous orders, resolution of the [domestic
violence] issues in this matter is critical to [] Children’s safety
and well-being and to successful reunification. Dr. Rosenblum’s
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reports address the effects of exposure to domestic violence on
[N.L.] in particular.
[N.L.] is participating in treatment at [Center for Traumatic
Stress], and treatment there for [C.K.] is being pursued.
[Children’s foster father] testified that the therapist would like
[Mother and Father] to participate in this therapy in some way.
This should be pursued. At the moment, the Court questions
Mother’s understanding of the impact of [domestic violence] on
[] Children….
The Court is equally concerned about Father’s understanding of
the [domestic violence] issues and his commitment to ensuring
that they are resolved.
Id. at 5.
By the next permanency hearing on February 9, 2016, N.L. had
completed therapy at the Center for Traumatic Stress. Order, 3/11/2016, at
4. Mother had not participated in N.L.’s therapy, but the record does not
indicate whether CYF consulted with the therapist to determine if Mother’s
participation was advisable. N.T., 2/9/2016, at 19, 53. Therapy was
pursued for C.K., but it was unclear whether Center for Traumatic Stress
would accept her due to her age. Id. at 22-23; Order, 3/11/2016, at 4. By
the time of the hearing, C.K. was working with an in-home behavioral
therapist in the foster home to address an increase in concerning behaviors,
and N.L. was scheduled to begin mobile therapy the following month. 3
Order, 3/11/2016, at 4.
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3
The foster father provided the information regarding Children’s therapy.
N.T., 2/9/2016, at 69, 75. The CYF caseworker did not appear to be aware
(Footnote Continued Next Page)
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Regarding family therapy, the trial court stated “[d]espite Dr.
Rosenblum’s recommendation and the Court’s directive that CYF explore
options for Mother and [] Children to participate in family therapy, the
worker did not make a referral for that until about 3 weeks prior to today’s
hearing.” Order, 3/11/2016, at 4. The order also stated that “[t]he [trial
court] believes that family therapy for Mother with [] Children is important
and would be beneficial regardless of the form of permanency that is
ultimately to be achieved. It may be beneficial for Father to have the
opportunity to participate in family therapy as well.” Id. at 4.
Consequently, the trial court ordered “CYF to implement family therapy for
Mother with Children.” Id. at 2.
On March 22, 2016, Mother filed a motion to enforce the court order
for a referral to family therapy, requesting that the trial court (1) hold CYF in
contempt for failing to arrange the therapy; (2) find that CYF failed to make
reasonable efforts dating back to the date of Dr. Rosenblum’s evaluation;
and (3) toll the timeframes under the Adoption and Safe Families Act
(ASFA)4 from the date of the evaluation until the therapy began. Motion,
_______________________
(Footnote Continued)
of Children’s participation in therapy as she testified Children were not in
therapy. Id. at 9.
4
ASFA is a federal law. Pennsylania adopted ASFA’s mandates, including
the requirement that when a child has been in foster care for 15 out of the
past 22 months, trial courts must determine whether CYF has filed or sought
to join a petition to terminate parental rights and if not, whether exceptions
apply. In re D.C.D., 105 A.3d 662, 674–75 (Pa. 2014).
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3/22/2016. The trial court denied all requested relief except for ordering
that “[t]he issue of the adequacy of the agency’s efforts to implement family
therapy is preserved for the next regularly scheduled permanency review.”
Order, 3/31/2016, at 1.
The following month, Mother filed another motion to enforce the court
order, alleging that the therapy CYF had arranged through A Second Chance
was inadequate because the therapist was not aware she was to provide
trauma therapy. Motion, 4/29/2016. On May 3, 2016, the trial court
granted the motion and ordered the following.
CYF is to ensure that appropriate trauma based therapy is in
place for the family to address the impact domestic violence has
had on [C]hildren and to carry out the recommendations
regarding family therapy made in Dr. Rosenblum’s evaluation in
the fall of 2015 and the [c]ourt’s subsequent orders. CYF to
involve Dr. Rosenblum and any other appropriate consultant to
CYF in ensuring that the treating professional has an accurate
understanding of the intended focus of the therapy.
Order, 5/3/2016, at 1.
On May 25, 2016, the trial court began the next permanency hearing
but did not finish. Order, 5/31/2015, at 1. During the hearing, the
caseworker testified that a few days after the February 9, 2016 hearing, she
learned that the family-based therapy provider CYF had arranged to work
with the family prior to the February hearing would not accept the case.
N.T., 5/25/2016, at 26, 49. According to the caseworker, CYF then had a
hard time finding a provider, but in March 2016, A Second Chance agreed to
provide therapy. Id. at 26, 50. Due to scheduling conflicts, only one
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session had occurred. Id. The caseworker admitted that she originally told
A Second Chance that the purpose of the therapy was to address “things
that are going on in the court” so Children were not “confused.” Id. at 51.
After receiving the trial court’s May 3, 2016 order, the caseworker sent Dr.
Rosenblum’s October 2015 evaluation and dependency court orders to A
Second Chance, clarifying that the purpose of the therapy was to address
the effect of domestic violence on the family. Id. at 26, 35-36, 51. At that
point, A Second Chance informed CYF that it could provide therapy but it
would not be trauma-based. Id. at 51.
CYF also consulted with Dr. Rosenblum after the trial court ordered the
agency to do so on May 3, 2016. Id. at 26, 36, 51. Dr. Rosenblum
informed CYF he recommended TRAC to provide trauma-based services, the
same agency he suggested in his October 2015 evaluation. Id. at 26, 36.
CYF then referred the family to TRAC sometime in early May 2016. Id. at
26. TRAC accepted the family for services, but its next opening was not
until June 2016. Id. at 27. A Second Chance agreed to schedule another
session to keep some sort of therapy in place until TRAC began.5 Id. at 52.
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5
During this time, Children continued to receive individual therapy in the
foster home through a “BSC” (presumably a behavioral specialist
consultant), but the CYF caseworker never contacted this therapist to
determine if she could fulfill the recommendations made by Dr. Rosenblum
in October 2015. However, the BSC therapist later testified that she is
unable to provide family therapy. N.T., 8/3/2016, at 81.
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At the close of the hearing, the trial court admonished CYF for not
having appropriate family therapy in place and informed CYF it should
consider private therapists instead of the providers with which it normally
works. Id. at 128. The trial court ordered the following: “CYF to ensure
that family therapy is in place, as per previous orders. CYF to provide the
court with a status report by May 31st, 2016 regarding implementation of
family therapy.” Order, 5/31/2016, at 2.
At the May 31, 2016 status-update hearing, a CYF regional office
director informed the trial court CYF had consulted with Allegheny County’s
director for behavioral health, who opined that TRAC was the most
appropriate service for the family because it was trauma-based and could
continue to work with them long-term even if the permanency goal changed.
N.T., 5/31/2016, at 7. The trial court agreed that TRAC “is a really
appropriate service for this situation” and recommended that CYF come up
with back-up options in case TRAC was not available in mid-June. Id. at 12-
13. The regional office director responded that the county was working on
an alternate plan, but TRAC seemed to be the best option. Id. at 13.
On August 6, 2016, after two additional continuances related to
Mother’s request to change counsel, the continued permanency review
hearing was held. By that time, Father had attended an intake session and
an initial family therapy session with TRAC. Order, 8/30/2016, at 5. Mother
cancelled her individual intake session scheduled for July 5, 2016, informing
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the therapist that she was dealing with “personal things,” and attended the
intake session later that month. Id. at 5-6; N.T., 8/3/2016, at 11, 17.
The TRAC therapist testified that she was not provided with Dr.
Rosenblum’s evaluation or dependency court orders. Id. at 22-23. Her
understanding was that she was to address permanency-related issues and
to help Mother and Father interact with Children concerning the trauma
Children have experienced. Id. However, the only information the therapist
had concerning the trauma N.L. experienced was that she had witnessed
“some violent actions” and the parents could not be together. Id.
At the conclusion of the hearing, the trial court reviewed the history of
CYF’s efforts to set up family therapy, noting “it would have been reasonable
for CYF to follow up on the recommendation of the expert that they
consulted,” but stated that despite Dr. Rosenblum’s recommendation in
October 2015, the trial court did not order a referral to TRAC in November
2015, because Children already had services and “duplicate therapy [would
not have been] useful.” Id. at 126-27. The trial court opined that it could
have found that CYF did not make reasonable efforts at the time of the
February 2016 hearing because CYF had only made a referral to family
therapy three weeks prior, but declined to do so at the time because it is a
“serious finding.” Id. at 127-28. The trial court stated CYF made “some
efforts … with entirely inadequate communication with the results that a
therapist was put in place who didn’t know what she was there for and
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wasn’t qualified to do it.” Id. at 128-29. The trial court further noted that
although TRAC was finally in place, it appeared that
the therapist at TRAC … doesn’t know what she is supposed to
be working on. … I have no reason to believe that they don’t
have the capacity to do the kind of things that is needed. But I
don’t comprehend how they will succeed if the assigned therapist
has not been provided with the full, background information,
which she clearly has not.
Id. at 129.
In its order, the trial court found “CYF did not offer an adequate
explanation for its initial failure to follow through on Dr. Rosenblum’s
recommendation, for the multiple delays in pursuing services, or for the
inaccurate communication about the needed therapy, which resulted in
assignment of a provider incapable of providing the needed service and
compounded the delays that had already occurred.” Order, 8/30/2016, at 5.
The trial court concluded that it did “not believe CYF’s mis-steps in this
matter were intentional,” but “the [c]ourt cannot and does not consider
CYF’s conduct to have been reasonable.” Id. at 5.
CYF timely filed a notice of appeal of the August 30, 2016 order. Both
CYF and the trial court complied with Pa.R.A.P. 1925. CYF raises the
following issue for our review: “Whether the trial court properly found that
[CYF] failed to make reasonable efforts to achieving the permanency goal of
reunification[?]” Appellant’s Brief at 4.
Our standard of review in dependency cases is as follows.
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[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…. [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.
In re W.M., 41 A.3d 618, 622 (Pa. Super. 2012) (citations omitted). “An
abuse of discretion is not merely an error of judgment, but is, inter alia, a
manifestly unreasonable judgment or a misapplication of law.” In re J.R.,
875 A.2d 1111, 1114 (Pa. Super. 2005) (citing In re N.E., 787 A.2d 1040,
1042 (Pa. Super. 2001).
Under the Juvenile Act, courts must conduct regular permanency
hearings to review the permanency plan of the child. 42 Pa.C.S.
§ 6351(e)(1). At each permanency hearing, the trial court must determine,
inter alia, “whether reasonable efforts were made to finalize the permanency
plan in effect.” 42 Pa.C.S. § 6351(f)(5.1).
Our Supreme Court has described the purpose behind the reasonable-
efforts requirement as follows.
[T]he federal government enacted 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. 42 U.S.C. § 671 (setting forth the
requirements of a state plan “[i]n order for a State to be eligible
for payments” for foster care and adoption assistance). The
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federal government required state plans to provide that
“reasonable efforts shall be made to preserve and reunify
families,” absent certain exceptions. Id. § 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 Section 672 payments. Id. § 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 675–76.
As the Office of Children and Families in the Courts has observed,
neither federal nor Pennsylvania6 law defines “reasonable efforts.”
Pennsylvania Court’s Office of Child and Families in the Courts, Pennsylvania
Dependency Benchbook, § 19.9.1, at 19-33 (2014).7 Notwithstanding the
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6
Unlike this case, which focuses on the agency’s efforts between two
permanency hearings, Pennsylvania cases concerning reasonable efforts
thus far have focused on other stages of the proceedings. See, e.g., In re
S.A.D., 555 A.2d 123, 124–25 (Pa. Super. 1989) (initial removal); In re
R.P., 957 A.2d 1205, 1220 (Pa. Super. 2008) (aggravated circumstances
petition); In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (goal change);
In re J.T., 817 A.2d 505, 508–09 (Pa. Super. 2003) (termination of parental
rights petition). None of these cases provides a definition of reasonable
efforts.
7
Since there is no legal definition for “reasonable efforts,” the Office of
Children and Families in the Court directs courts to use common sense and
judicial discretion, and provides the following instruction.
Black’s Law Dictionary defines “reasonable” as “fit and
appropriate to the end in view” while Webster’s definition is “not
expecting or demanding more than is possible or achievable;
fairly good but not excellent; large enough but not excessive;
acceptable and according to common sense or normal
(Footnote Continued Next Page)
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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. In re J.R., 875 A.2d at 1118. “By requiring only ‘reasonable
efforts’ to reunify a family, the statute recognizes that there are practical
limitations to such efforts.” Id. at 1118, n. 5 (citing 43 Pa.C.S. §§ 6351(e)
& (f)). “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 towards reunification.” Id. (emphasis
in original). 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.” In re A.L.D., 797 A.2d 326, 340
(Pa. Super. 2002) (citing In re J.W., 578 A.2d 952, 959 (Pa. Super. 1990)).
In the instant case, we begin our analysis with the trial court’s
criticism of CYF for not attempting to arrange family therapy until late
January 2016. Trial Court Opinion, 11/23/2016, at 2. Our Supreme Court
has “‘encouraged [trial courts] to communicate clear expectations to the
agency’ given that a finding that reasonable efforts are lacking will have a
‘significant impact’ on the financial resources available to assist children and
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(Footnote Continued)
practices[.”] Either of these would logically apply to the
“reasonable efforts” standard found in dependency proceedings.
Benchbook, § 19.9.1, at 19-33.
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their families.” In re D.C.D., 105 A.3d at 665 n.2 (citing the 2010 version
of the Benchbook, currently found in §19.9.1, at 190-34 of the 2014
edition).
We observe that the trial court scolded CYF at the February 2016
hearing for not following “the [c]ourt’s directive that CYF explore options for
Mother and [] Children to participate in family therapy.” Order, 2/9/2016,
at 4. Although Dr. Rosenblum recommended that CYF arrange family
therapy, the order issued after the November 2015 hearing contained no
such directive. See Order, 12/20/2015. In fact, the trial court instructed
CYF to determine whether Mother should be incorporated into Children’s
existing individual trauma therapy to avoid duplicating therapeutic efforts.
Id. at 3. See also Order, 8/30/2016, at 5. “The order should clearly
communicate to the parties, foster parents, providers, and other interested
persons what is expected between the review hearings.” Benchbook, §
12.8, at 12-23. If the trial court expected CYF to pursue family therapy in
addition to incorporating Mother into Children’s existing therapy, it should
have explicitly ordered the agency to do so in the order issued after the
November 2015 hearing. Nevertheless, the relevant period in this appeal is
between the February 9, 2016 and August 3, 2016 permanency hearings,
and the trial court clearly ordered CYF to set up family therapy on February
9, 2016, and again on May 3, 2016. See Order, 2/9/2016, at 3; Order,
5/3/2016, at 1.
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While the focus of family therapy was for Mother to understand better
the impact of her domestic violence experience upon Children, there is no
doubt that the beneficiaries of Mother’s understanding would be Children.
Significantly, CYF has never argued that family therapy is unnecessary or
not in the best interest of Children. See In re J.R., 875 A.2d at 1118(holding that services must directly promote the best interests of the child).
Instead, the bulk of CYF’s brief is dedicated to other unrelated efforts it
made and the deficiencies of the parents. Similarly, Children’s guardian ad
litem (GAL) argues that Mother cancelled the first family therapy
appointment due to unspecified personal reasons and did not participate in
Children’s individual therapy despite being court ordered to do so. GAL’s
Brief at 12. The GAL further contends participation in Children’s individual
therapy is “as consequential to Children’s health, well-being, and best
interests as any family therapy referral.” Id.The GAL may certainly be correct that Mother’s participation in
Children’s individual therapy would have advanced their well-being, and trial
courts may take failures of this nature into account when formulating the
required findings of parental compliance and progress at each permanency
hearing,8 see 42 Pa. C.S. § 6351(f)(3), and when considering a goal change
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8
The trial court failed to make findings of the progress of Mother and Father
in many of the permanency review orders in this case. Determining
progress toward alleviating the circumstances necessitating the original
placement is often a more difficult task than determining compliance with
(Footnote Continued Next Page)
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request or a petition to terminate parental rights. See In re D.C.D., 105
A.3d at 675 (holding that even if an agency fails to make reasonable efforts
towards reunification, the court may terminate parental rights if the agency
otherwise proves by clear and convincing evidence the existence of grounds
and that termination best serves a child’s needs and welfare). However,
barring a judicial finding that a service would be futile because a parent
refuses to attend or is incapable of benefiting from the service, shortcomings
of the parents do not excuse the agency from making reasonable efforts at
this stage of the proceedings.
While parents have an “affirmative duty” to show “a willingness to
cooperate with the agency to obtain the rehabilitative service necessary for
the performance of parental duties and responsibilities,” the “agency must,
of course, put forth a good faith effort in making services available to the
parent….” In re J.J., 515 A.2d 883, 890 (Pa. 1986). See also In re Diaz,
669 A.2d 372, 377 (Pa. Super. 1995) (stating that agencies have a duty to
assist parents and parents have a “corresponding duty to use best efforts to
overcome obstacles to perform parental duties”). Thus, although the agency
cannot guarantee the parents’ success, it is clear that the agency’s duty to
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(Footnote Continued)
the permanency plan, but we remind the trial court that it is a finding
required by the Juvenile Act, even if a caveat needs to be made noting the
impact of external issues such as CYF’s lack of efforts. See 42 Pa. C.S. §
6351(f)(3).
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make reasonable efforts to finalize the permanency plan is independent of
the parents’ duty to accept such efforts.
The argument advanced by CYF and the GAL that the trial court never
ordered CYF to use TRAC specifically is somewhat more persuasive. See
CYF Brief at 17 (contending that without a court order, CYF is required to
allow all contracted providers to bid on a referral); 9 GAL Brief at 11 (noting
“the permanency review orders never reflected that TRAC would be the only
organization acceptable to accomplish the goal of family therapy or that
alternatives would not satisfy the [t]rial [c]ourt’s expectation”); id. at 10-11
(citing N.T., 2/9/2016, at 101) (emphasis removed) (arguing that the trial
court explicitly condoned use of a different provider than TRAC when the
trial court stated that a family-based provider was “an appropriate service to
do the kind of thing [the trial court] had in mind”). However, this argument
ultimately fails as well.
Timeframes in the Juvenile Act indicate that a component of
reasonable efforts is diligence by the agency. The law prioritizes
reunification initially, but if reunification is not viable “after reasonable
efforts have been made to reestablish the biological relationship,” child
welfare agencies must “work toward termination of parental rights, placing
the child with adoptive parents,” ideally within 18 months. In re B.L.L.,
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9
CYF does not specify whether this requirement stems from an internal
policy, a regulation, or some other source.
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787 A.2d 1007, 1016 (Pa. Super. 2001). “While this 18–month time frame
may in some circumstances seem short, it is based on the policy that a
child’s life simply cannot be put on hold in the hope that the parent will
summon the ability to handle the responsibilities of parenting.” In re
R.M.G., 997 A.2d 339, 349 (Pa. Super. 2010) (citations omitted). As our
Supreme Court has recognized, “[c]hildren are young for a scant number of
years, and we have an obligation to see to their healthy development
quickly.” In re T.S.M., 71 A.3d 251, 269 (Pa. 2013).
Assisting parents with achieving the Juvenile Act’s goal of family unity
in a timely fashion ultimately benefits children, as it will result either in a
successful safe reunification or a clearer picture of the parents’ inability to
remedy the conditions causing the child to be out of their care, requiring
movement towards an alternate permanency goal. Eighteen months is a
very long period out of a child’s short life, and there is no doubt that 18
months of prolonged uncertainty is a burden borne most by the child. But
18 months may seem quite short to a parent who has to overcome
significant obstacles to regain custody. Thus, it is imperative that the
agency not serve as an additional roadblock to parents’ progress. This is
particularly the case because parental rights may be terminated even if the
agency fails to make reasonable efforts to reunify the family. See In re
D.C.D., 105 A.3d at 675.
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We acknowledge that some delays are unavoidable and outside of the
control of child welfare agencies. Here, however, part of the cause for delay
was CYF’s failure to communicate accurately the purpose of the service to its
contracted provider in March 2016. CYF was free to use any provider
capable of performing the service, but “CYF incorrectly advised A Second
Chance that the purpose of the therapy was to address [the] communication
[of Mother and Father] with [] Children about court,” resulting in the
arrangement of therapy not tailored to the family’s needs and several more
months’ delay. Trial Court Opinion, 11/23/2016, at 2 n.10. CYF offered no
explanation as to why it took two motions by Mother to get the agency to
consult with mental health professionals to determine the most appropriate
provider. Then, even after TRAC began to work with the family, “the
therapist’s testimony revealed that she had not received full background
information on the matter, so it remained unclear whether she was equipped
to focus on the issues that Dr. Rosenblum and the [trial court] identified so
long ago.” Id. at 3.
This Court has previously recognized that
[w]hen the child welfare agency uses the services of other public
agencies to meet its responsibility for making reasonable efforts,
it should not simply refer families to other agencies and assume
that the obligation has been met. Unless responsibility for a
child’s or family’s case has clearly been delegated to the other
agency and a mechanism for accountability has been
established, the referring child welfare agency should retain
responsibility for the case and for ensuring that the family
receives the appropriate services.
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In re S.A.D., 555 A.2d at 128 (citing Making Reasonable Efforts: Steps for
Keeping Families Together, National Council of Juvenile and Family Court
Judges, the Child Welfare League of America, the Youth Law Center and the
National Center for Youth Law (no publication date)) (emphasis added). 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 and court orders. Simply making the
referral is not enough.
Finally, we note that the trial court is in the best position in these
situations to listen to the agency’s explanations and determine their
credibility. See In re W.M., 41 A.3d at 622. Having heard from CYF, the
trial court concluded that CYF did not offer adequate explanations for the
delays or miscommunications. Order, 8/30/2016, at 5. After reviewing the
record, we cannot determine that this conclusion was manifestly
unreasonable. See In re J.R., 875 A.2d at 1114.
Based on the foregoing, we hold the trial court did not abuse its
discretion in determining that CYF failed to make reasonable efforts to
finalize the permanency plan during the relevant review period. We
therefore affirm the trial court’s August 30, 2016 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
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