Superior Court emphasizes need to hear from children
Judges vacate termination orders, call for counties to seek kids’ input
The Pennsylvania Superior Court in the past week has vacated two orders issued by area judges as it continues to emphasize the need to hear from the children involved in parental termination cases.
Separating children from their parents has become a national issue with respect to families of immigrants, but in Pennsylvania, the courts are daily engaged in terminating parental rights when determining if it is in the “best interests of the child” to continue associating with a biological mother or father.
Recently, the state Superior Court has stressed that, before terminating parental rights, the courts must hear from the children — through court-appointed attorneys — about how they feel about losing contact with their parents.
In April, the state appeals court vacated termination orders issued by a Cambria County judge because the court wasn’t able to determine if the children in that case had the opportunity to express their opinions.
In June, an order by a Blair County judge was vacated for further review for the same reason.
The Superior Court in opinions issued Friday and Monday by the same panel that included judges Gene Strassburger, John T. Bender and Victor P. Stabile vacated orders in Clearfield and Cambria counties.
In each case, the court ordered county judges to appoint attorneys who can ascertain the feelings of children about to lose contact with their mothers.
If it is determined that the children have strong opinions about termination, the judges are to hold new hearings so those opinions can be heard and become part of the court record.
The Cambria County case involved the termination of the mother’s parental rights involving children ages 13 and 4.
The county’s Department of Children & Youth Services in April 2016 began investigating allegations of abuse and neglect against the mother.
The children were removed from the home because of a bedbug infestation, the mother’s financial instability, her moving from home to home and possible sexual abuse.
The initial goal of child welfare was to reunite the mother with the children after she received psychological services, completed a parenting skills class and for several months was able to “maintain a clean, safe and adequately furnished home.”
“Mother never made more than minimal progress toward alleviating the circumstances, which necessitated original placement and had achieved only minimal compliance with the permanency plan,” the Superior Court panel stated in its review of the termination order issued by Cambria Judge Patrick Kiniry.
The attorney appointed to represent the best interests of the children, Gregory Neugebauer, talked to the older child by phone the night before the termination hearing and determined that the child “loves his mom,” but he reported to the court the boy is “ready for permanency (meaning adoption).”
The child “wants to be adopted but wants continued contact with mother,” the attorney reported.
The Superior Court concluded that the limited contact with the older child was not enough to discern whether the youngster understood his relationship with his mother “would be legally and permanently severed.”
A caseworker said she was in favor of the children’s continued contact with their mother post-adoption.
Citing the opinion issued in April, the Superior Court panel on Monday stated, “Like adult clients, effective representation of a child requires, at a bare minimum, attempting to ascertain the (child’s) position and advocating in a manner designed to effectuate that position.”
In the Clearfield County case, heard by Judge Paul E. Cherry, the mother did not have contact with her children, ages 9 and 7, since September 2016 because she was incarcerated.
The children were living with the father and a stepmother, and due to the lack of contact, the court terminated the parental rights of the mother.
The court appointed attorney Courtney L. Kubista to represent the best interests of the children, but there was nothing in the record to indicate the attorney advocated for the children’s legal interests, it was stated.
The Superior Court said that, while the attorney cross-examined witnesses during the hearing, “counsel made no mention of the children’s preferred outcomes on the record and presented no argument or statement on their behalf.”
She stated that, because of the mother’s lack of contact, failure to file a petition to obtain contact and failure to perform parental duties, the judge properly terminated the rights of the mother.
“Again, based on counsel’s statements, it appears that counsel did not ask children what outcomes they each preferred, and instead speculated what outcome the children wanted,” the appeals court judges stated.
The court stated that the children “were old enough to provide at least some input as to their preferred outcomes in this case.”
In a footnote, the opinion stated that ascertaining a child’s position is a difficult task.
“It often entails undergoing a delicate conversation that needs to be undertaken with sensitivity and skill and differs from an interview that an attorney would conduct of an adult,” it stated.
The judges vacated the termination order and sent the case back to Clearfield County for the attorney “to conduct an additional interview of children to discern their legal interests directly.”