Opinion
159 WDA 2023 J-A18030-23
10-26-2023
IN THE INTEREST OF: K.M., A MINOR APPEAL OF: WASHINGTON COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY
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
LAZARUS, J.
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 efforts on behalf of the Agency to prevent removal of K.M. (born 4/21), as required by subsection 6351(b) of the Juvenile Act. K.M., adjudicated dependent on September 26, 2022, was removed from the home 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." 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
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 finding of reasonable efforts, funding for duration of child's placement and services to family becomes solely county responsibility).
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 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).
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).
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.
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
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) 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").
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.
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 smoked marijuana throughout her pregnancy. 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.
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.
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 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.
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.
Casework Supervisor Amber Gaulthier stated in the Agency's CAPS Notes 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).
CAPS Notes are the Agency's method for electronically chronicling and archiving case activity.
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 [Father] had a criminal history that included violent offenses and drug-related offenses; correct? A: I was, yes."). 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.").
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.
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.
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. 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 these services were not in the home the requisite number of hours "because the family did not cooperate." Id. at 79.
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).
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. 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) 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.
Caseworker Schilken also conducted unannounced home visits on May 5, May 6, June 7, June 27, and July 27 of 2022.
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.
The FGDM meeting took place on June 3, 2022. Caseworker Schilken testified that she was present for this meeting and acknowledged that, 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.
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 these events, no immediate action was taken by the Agency, yet Supervisor Gaulthier continued to make CAPS entries about transferring the case.
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.
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.
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 custody of his kinship caregivers. 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.
Mother and Father absconded, and were eventually found, arrested, and charged with criminal homicide.
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. Blueprints was also assisting the family.
• 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.
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 families and individuals to attain the skills, knowledge, motivations, and opportunities to become self-sufficient." https://myblueprints.org/ (last visited 9/12/23).
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;
• 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 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). 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 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:
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.
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
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 opinion to affirm her order finding lack of reasonable efforts. The parties are directed to attach a copy of that opinion in the event of further proceedings. Order affirmed.
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.Benchbook, supra at 20.3 (emphasis added). Judge McDonald's opinion has more than met this "best practice" point.
Judgment Entered,
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