J-A27030-14

                                2014 PA Super 229

IN RE: D.S., A MINOR                        :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
APPEAL OF: T.S., FATHER                     :     No. 577 WDA 2014


                 Appeal from the Order Entered March 12, 2014,
               In the Court of Common Pleas of Allegheny County,
                          Civil Division, at No. 99-1597.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

OPINION BY SHOGAN, J.:                           FILED OCTOBER 10, 2014

        In this dependency case, T.S. (“Father”) appeals from the order

entered on March 12, 2014, that, inter alia, directed Father to undergo a

psychiatric evaluation and changed the placement of his minor child

(“D.S.”).1 After careful review, we reverse in part and affirm in part.

        The trial court set forth the relevant facts and procedural history of

this matter as follows:

              The family has an extensive history with Allegheny County
        Child Youth and Families (CYF) dating back to 2000. Both D.S.
        and [a sibling] Z.S. were removed from Mother’s care for
        suspected neglect and physical abuse.[2] They were eventually
        returned to her care. The children were removed from Mother’s
        care in 2002 for similar allegations. Father was granted primary
        physical custody of the children in Adult Family Division. Mother
        was allowed unsupervised contact with the children through this

1
 Because the order changed D.S.’s placement, it is a final appealable order.
See In re C.M., 882 A.2d 507, 512 (Pa. Super. 2005) (explaining that in a
dependency case, an order granting or denying a status change, as well as
an order terminating or preserving parental rights, shall be deemed final
when entered).
2
    Neither Z.S. nor the children’s mother is a party to the instant appeal.
J-A27030-14



     order. The family came to the attention of CYF again in 2009
     when Mother requested removal of the children. It was reported
     that Father had placed the children in Mother’s care sometime in
     2008. CYF filed a Dependency Petition but the case was closed
     after Father agreed to assume custody of the children.

            On September 27, 2013, Father filed a Private Dependency
     Petition alleging that D.S. was running away and refusing to
     follow household rules.2 At a Shelter Hearing3 on October 10,
     2013, [F]ather requested that the children be removed from his
     home. Sometime prior to entering the courtroom for this
     hearing, the caseworker observed the children, in the hall,
     begging Father to return home. The caseworker testified that
     [F]ather responded by pushing the children off of him and saying
     “get the f*** off of me”.
          2
              A similar petition was filed for Z.S.
          3
           The Honorable William Ward was presiding over the
          case until December 31st, 2013.

            At a review hearing on November 12, 2013, the court
     allowed D.S. to return home to [F]ather. Father subsequently
     demanded the child be removed from his home again on
     December 5, 2013. On December 18, 2013, D.S. was
     adjudicated dependent under 42 Pa.C.S. §6302(1) and (6).
     Father stipulated that he required CYF’s assistance in meeting
     D.S.’s mental health needs. At this hearing, the court offered
     Father home visits on Christmas Eve and Christmas day. Father
     declined both of the visits. The court further ordered that D.S.,
     Father and Father’s paramour4 attend [Allegheny Forensic
     Associates] (AFA) evaluations. D.S. did attend her individual
     evaluation but Father and his paramour refused to attend their
     individual evaluations with Dr. Rosenblum.
          4
            It should be noted that Father’s live-in paramour
          was the former CYF caseworker assigned to the
          family case. This was a point of contention in the
          family and thus the reason for ordering her to
          participate in the evaluations.




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     The parties appeared before the Court on March 12, 2014 for a
     Permanency Review Hearing. Prior to this hearing, counsel for all
     parties briefed the issue of parent’s right to refuse an individual
     AFA evaluation. The caseworker, Father, and D.S. testified, and
     reports from Dr. Rosenblum and Dr. Vallano were admitted into
     evidence5. Dr. Rosenblum completed an interactional evaluation
     of D.S., Z.S., [Father] and [F]ather’s paramour. Dr. Rosenblum
     opined that D.S. grew up in a “highly dysfunctional and unstable
     family. Father has his hands full with these children for quite
     some time. Of course the fact that he has run through a number
     of different girlfriends has not helped... this Psychologist
     continues to believe it would be advantageous to complete
     evaluations with father...[.] I believe the parents need help in
     identifying   increased    structure   and    specific  behavioral
     expectations for D.S...[.]” Dr. Vallano completed an individual
     evaluation of D.S. and similarly determined that intensive family
     therapy would be beneficial to the family. Dr. Vallano
     recommended “Family therapy to work with father to help him
     better understand the trauma and trauma impact as well as
     parent behavioral management training on how to oversee an
     adolescent with significant emotional and behavioral difficulties”.
           5
            The Court considered this evidence as well as the
           briefs from the parties.

            D.S. also provided testimony that [F]ather had not been
     visiting the placement facility and was not permitting her to have
     home visits. Specifically, she testified, “We have been down this
     road. “Yeah I’m willing”, but he just says it. He never does it. It
     is always my fault. Everything is always my fault.” Most
     importantly, D.S. expressed her desire for love and affection and
     longing for a home which could provide her with both. The court
     found D.S.’s testimony both credible and compelling. It was
     apparent that she longed for a better relationship with her father
     and appeared willing to engage in services.

           Father wavered in his responses; at times he agreed to
     cooperate with services and at other times he expressed that
     services would not work for D.S. After direct examination and
     cross, the court questioned Father about the doctor’s
     recommendations for individual therapy. Father testified that
     either family therapy or individual therapy “couldn’t hurt”. He


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J-A27030-14



     later testified that he was willing to accept the services that Dr.
     Rosenblum recommended in his report. When asked whether he
     would cooperate with any services in order to keep the children
     at home he replied, “Yes, I am willing to keep trying”.

           Despite these responses, [F]ather’s counsel expressed to
     the Court that his client did not wish to be evaluated by Dr.
     Rosenblum because it was “a one shot deal” and “not therapy”.
     While counsel did state this in his closing argument, the court
     took Father’s testimony as [a] whole to be that he was willing to
     cooperate with any services that would allow for the return of his
     daughter. While [F]ather’s counsel opined that was not what
     Father meant, it is clear by his responses that Father agreed to
     engage in individual therapy. There had been no suggestions by
     any of the parties that Father was in need of individual therapy
     only. The purpose in litigating and briefing this issue was
     whether it was in the best interest of D.S. to evaluate Father’s
     mental health needs with respect to his parenting abilities.

     CONCLUSlON:

             While Father does not believe he needs to be evaluated by
     a mental health professional, the Court believes that he does.
     D.S. has been through a number of traumatic and disturbing
     incidents in her life. Father lacks any insight about how to
     address D.S.’s mental and emotional problems. The existence of
     a romantic relationship between [F]ather and the former
     caseworker is also particularly troubling. This type of poor
     decision making and parenting exhibits a clear need for Father to
     obtain some type of mental health services of his own. He has
     had a number of paramours in the home which has also created
     tension. Father appears willing to participate in services that he
     believes to be appropriate. He demands CYF to remove the child
     but is unwilling to actually cooperate with services. Father’s
     refusal to undergo an individual evaluation is troubling because
     of the nature and severity of D.S.’s history of trauma and abuse.
     The goal in this case has always been reunification. In order to
     facilitate such a goal, it is vital to the family to address
     everyone’s mental health needs as well as to minimize conflict in
     the home.




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J-A27030-14



Trial Court Opinion, 5/15/14, at unnumbered 1-5 (bracketed footnote

added).

      Following the hearing, the trial court ordered D.S. to be moved to a

placement facility that could address her mental health issues, and where

she could undergo trauma-based therapy, family therapy, and individual

therapy. Order, 3/12/14. The trial court also directed Father to attend an

individual psychiatric evaluation at AFA and directed him to follow the

recommendations made as a result of the AFA evaluation. Id. Father filed a

timely appeal.

      On   appeal,     Father   presents     a   single   issue   for   this   Court’s

consideration:

      Did the Trial Court abuse its discretion by not applying the law
      and making a decision that was manifestly unreasonable by
      ordering [Father] to participate in a mental health evaluation
      despite no record of a mental health deficiency to establish the
      compelling state interest needed to justify the intrusion upon his
      Constitutionally protected right to privacy?

Father’s Brief at 4.

      Initially, we point out that our standard of review of an order changing

the placement of a dependent child is for an abuse of discretion. In re A.K.,

936 A.2d 528, 532-533 (Pa. Super. 2007) (citation omitted).                However,

because the salient issue in this matter is whether the trial court could order

Father to undergo a psychiatric evaluation, we analyze this issue pursuant to

Article 1 Section 1 of the Pennsylvania Constitution.        See In re T.R., 731


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J-A27030-14



A.2d 1276, 1280 (Pa. 1999) (plurality decision) (citing Denoncourt v.

Commonwealth State Ethics Commission, 470 A.2d 945, 949 (Pa.

1983)). Article 1 Section 1 provides as follows:

      Inherent rights of mankind

      All men are born equally free and independent, and have certain
      inherent and indefeasible rights, among which are those of
      enjoying and defending life and liberty, of acquiring, possessing
      and protecting property and reputation, and of pursuing their
      own happiness.

Pa. Const. Art. 1, § 1. However:

      Although the right to privacy is of constitutional dimension, it is
      not unqualified. Privacy claims must be balanced against state
      interests. Our test of whether an individual may be compelled to
      disclose private matters, as we stated it in Denoncourt, is that
      “government’s intrusion into a person’s private affairs is
      constitutionally justified when the government interest is
      significant and there is no alternate reasonable method of lesser
      intrusiveness to accomplish the governmental purpose.” [Id.] at
      949. More recently, we have stated the test in terms of whether
      there is a compelling state interest. Stenger [v. Lehigh Valley
      Hospital Center, 609 A.2d 796, 802 (Pa. 1992)]. In reality, the
      two tests are not distinct. There must be both a compelling, i.e.,
      “significant” state interest and no alternate reasonable method
      of lesser intrusiveness.

In re T.R., 731 A.2d at 1280.

      Applying this analysis, our Supreme Court then held in In re T.R. that

the   mother’s   right   to   privacy   precluded   a   compelled   psychological

evaluation. In re T.R., 731 A.2d at 1281. The Court concluded that there

was abundant information already in the case about the mother’s parenting

ability, or lack thereof. Id.


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J-A27030-14



      Here, Father argues that the trial court misapplied the law when it

ordered him to undergo a psychiatric evaluation.        Father’s Brief at 10.

Father cites In re K.D., 744 A.2d 760 (Pa. Super. 1999) as support for his

position. In that case, a panel of this Court stated:



      The Juvenile Act does not expressly provide for a parent to
      submit to a psychological evaluation during a dependency
      proceeding. Moreover, the purposes of the Act are:

            (1) To preserve the unity of the family wherever
            possible or to provide another alternative permanent
            family when the unity of the family cannot be
            maintained.

            (1.1) To provide for the care, protection, safety and
            wholesome mental and physical development of
            children coming within the provisions of this chapter.
            ...

            (3) To achieve the foregoing purposes in a family
            environment whenever possible, separating the child
            from parents only when necessary for his welfare,
            safety or health or in the interests of public safety.

            (4) To provide means through which the provisions
            of this chapter are executed and enforced and in
            which the parties are assured a fair hearing and their
            constitutional and other legal rights recognized and
            enforced.

      42 Pa.C.S.A. § 6301(b).

In re K.D., 744 A.2d at 761. The panel then went on to state:

           We believe, under the circumstances of this case, that the
      best interests of the children can be maintained without
      compelling appellant to submit to a psychological evaluation. Our


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J-A27030-14



      thorough evaluation of the trial court opinion and the record
      reveals a noticeable lack of support for subjecting appellant to
      this evaluation. A mere allegation that appellant has been taking
      medication for a mental condition and passed out on one
      occasion as a result of the medication is insufficient, in our
      minds, to force upon her an unwanted psychological evaluation.

Id.

      Similarly, in the present case, while there remains no absolute bar to

ordering a psychiatric evaluation, we conclude that the trial court’s order of

a mandatory psychiatric evaluation and treatment was not the least invasive

means of achieving its well-intentioned goal.    In a case where this Court

examined the decision in In re T.R., we stated: “[In re] T.R. stands for the

proposition that the court may not, under certain circumstances, invade an

individual’s privacy rights by ordering a psychological evaluation and

revealing its results; however, the court may take into consideration a

parent’s refusal to follow its treatment recommendation.” In re J.Y., 754

A.2d 5, 9 (Pa. Super. 2000) (emphasis added).

      Here, there would have been no impediment to the trial court’s

recommendation that Father seek treatment, and if Father opted to forgo

that treatment, his refusal could have been considered by the trial court in

D.S.’s placement. In re J.Y., 754 A.2d at 9. However, we cannot conclude

that there was a compelling state interest in ordering the evaluation and

directing Father to comply with recommendations made by AFA in this case.




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J-A27030-14



Indeed, there were no specific allegations or evidence of record that Father

had any particular mental health deficiencies.

      As pointed out by the Court in In re T.R.:

            The real issue in the case, then, is not so much whether
      the children should be removed, as whether the mother should
      be protected from her own assertion of a constitutional right
      because the assertion of that right may impede the efforts of the
      courts to return the children to her care. Citing the legislative
      goal of keeping the family together, the department would
      require the psychological examination.

               We regard such a concern as well intentioned, but
      misplaced. Compelling a psychological examination in this
      context is nothing more or less than social engineering in
      derogation of constitutional rights, and where, as here, there is
      an abundance of information about the ability of the parent to be
      a parent, there is no state interest, much less a compelling state
      interest, in the ordering of parental psychological examinations.
      In fact, we find such state intervention frightening in its
      Orwellian aspect. It is one thing for the mother to agree to
      psychological evaluation and to voluntarily undergo instruction in
      self-improvement, but it is quite another for the state, in the
      exercise of paternalistic might, to order a psychological
      evaluation in violation of the mother’s constitutional rights,
      presumably upon pain of imprisonment for contempt of court.
      The constitution is not a mere policy statement to be overridden
      by a sociological scheme for the improvement of society. The
      mother, alas, may be her own worst enemy and her
      shortcomings as a parent may result in the permanent removal
      of her children; nonetheless, the mother remains a free person,
      and her power to assert her constitutional right to privacy is not
      diminished merely because the representatives of the state think
      it is ill advised.

In re T.R., 731 A.2d at 1281.

      Likewise, while Father himself may be an impediment to reunification

with D.S., we cannot conclude that there is a state interest in this matter


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J-A27030-14



that is so compelling that Father’s constitutional rights may be overridden.

Here, it was Father, not a government agency, who filed the dependency

petition requesting that D.S. be removed from his home.3          If Father is

unwilling    to   voluntarily   seek   psychiatric   treatment    and     follow

recommendations, that remains his choice, as he initiated the underling

petition. However, the trial court is under no obligation to reunite D.S. with

a parent or guardian unable or unwilling to care for her.        A court order

directing psychiatric treatment in violation of Father’s constitutional rights,

with the possible penalty for failure to comply being “imprisonment for

contempt of court,”4 is not warranted under the facts of this case or the

aforementioned relevant legal authority.

        For these reasons, we conclude that the trial court erred in ordering

Father to undergo a psychiatric evaluation.     Accordingly, that part of the

March 12, 2014 order directing Father to undergo a psychiatric evaluation

and follow AFA recommendations is hereby reversed. The order is affirmed

in all other respects.



3
   Appellee, Kids Voice, as Guardian ad litem for D.S., emphasizes that a
psychiatric evaluation was warranted because Father filed the dependency
petition and invited the government intervention. Appellee’s (Guardian ad
litem) Brief at 13. We disagree. If Father will not voluntarily undergo a
mental health evaluation, we doubt that a court order compromising his
constitutional rights will cure the underlying issues in this matter.
4
    In re K.D., 744 A.2d at 761 (quoting In re T.R., 731 A.2d at 1281).



                                       -10-
J-A27030-14



     Order reversed in part and affirmed in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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