Opinion

C. & K. Keller v. DHS

Court
Commonwealth Court of Pennsylvania
Filed
Oct 10, 2019
Status
Unpublished
On the bench
McCullough, J.
Cited by
0 cases
Authority
More cited than 9.2%

“A fair trial before a fair tribunal is a basic and fundamental due process requirement.”

How later courts described this case

  • “A fair trial before a fair tribunal is a basic and fundamental due process requirement.”

Written by the judges who cited it.

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine and Kevin Keller, :

Petitioners :

: No. 1120 C.D. 2018

v. :

: Argued: September 10, 2019

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: October 10, 2019

Catherine and Kevin Keller (the Kellers) petition for review of the July

11, 2018 final order of the Department of Human Services (Department), Bureau of

Hearings and Appeals (BHA) denying the Kellers’ appeal of a decision by Berks

County Children and Youth Services (CYS) denying the Kellers’ application as a

foster family resource home.

Background

On May 3, 2017, the Kellers applied with CYS to be a kinship care

foster resource1 for their granddaughters. (Administrative Law Judge (ALJ)

Adjudication, Findings of Fact (F.F.) No. 1.) CYS informed the Kellers that they

1

“‘[K]inship care’ is a subset of foster care where the care provider already has a close

relationship to the child.” In re J.P., 988 A.2d 984, 987 n.3 (Pa. Super. 2010).

needed to complete a mental health evaluation in order to be considered as a foster

resource for CYS. (F.F. No. 2.) A kinship resource mental health evaluation of the

Kellers was completed on August 17, 2017. (F.F. No. 3.)

On October 11, 2017, CYS notified the Kellers that it would not

approve their application to be a foster care resource. (F.F. No. 7.) The notice

provided by CYS stated that its decision to deny the application was based on the

following factors: (1) the Kellers’ inability to demonstrate stable mental and

emotional adjustment, which could negatively affect a child placed in their care; (2)

the Kellers’ existing family relationships, attitudes, and expectations regarding their

own children could negatively affect a child placed in their care; (3) the Kellers’

inability to accept the relationship that a child placed in their care has with his own

parents; (4) the Kellers’ inability to care for a child with special needs, i.e., a physical

handicap or emotional disturbance; (5) the Kellers were unsuited to the

characteristics of a foster child; (6) the Kellers’ inability to work in partnership with

CYS; and (7) the Kellers failed to provide CYS with evidence of their financial

stability. (Certified Record (C.R.) at 15.)

The Kellers appealed CYS’s decision and a BHA ALJ conducted a

hearing on April 12, 2018, at which Mr. and Mrs. Keller; Dr. Richard Small, a

licensed psychologist; and CYS representative Amanda Wargo testified. Following

the hearing, the ALJ issued an adjudication and made the following, pertinent,

findings:

4. Dr. Small opined that he had significant concerns

about the [Kellers’] personal history with their own

children.

5. Mrs. Keller reported being molested through much

of her childhood by a variety of people. Dr. Small

stated that it was difficult to ascertain whether Mrs.

Keller had ‘worked through’ those issues, and he

2

opined that the problems of her own childhood

suggest that Mrs. Keller’s problems may have been

a contributing factor to the family dysfunction.

6. Dr. Small opined that the Kellers’ negative attitudes

toward Mrs. Keller’s daughter (the mother of their

granddaughters) could create negative attitudes

towards her children were they to be placed in the

[Kellers’] care.

...

10. The [Kellers’] monthly expenses exceed their

monthly income by approximately $220.

11. The police have been called to the [Kellers’]

residence on numerous occasions.

12. Mr. Keller is not on speaking terms with one of his

children and called the police after being threatened

by another.

13. Mrs. Keller had three adult children. Of those three,

two were placed in a group home. One was

involved in juvenile probation and eventually into

placement. Another child had a [protection from

abuse] PFA placed against him by Mrs. Keller. All

three children have a history of drug use.

14. On the application, in response to the question ‘Are

you comfortable with a birth parent knowing the

physical location of your home or having your

telephone number?’ the [Kellers] responded ‘no.’

The [Kellers] added in the margin ‘My daughter has

destroyed items in my home and I do not want her

on the property.’

(F.F. Nos. 4-6, 10-14) (citations omitted).

The ALJ noted that under the foster care regulations, when assessing

whether an applicant should be approved as a foster parent, the foster care agency

must consider the ability of an applicant to work in partnership with the agency. The

ALJ also explained that one of the goals of the foster care system is to reunify birth

parents with their children. The ALJ concluded that the Kellers had not

3

demonstrated that they were willing to work with CYS. The ALJ observed that Mrs.

Keller has a difficult relationship with her daughter, the mother of the children in

question, and had specifically advised on her application that she was not

comfortable with a birth parent knowing her telephone number or address and that

her daughter had destroyed items in her home. Therefore, the ALJ determined that

“any reunification efforts would be stalled by the [Kellers] due to the nature of their

relationship with Mrs. Keller’s daughter. As such, it [was] safe to assume that the

[Kellers] do not have the ability to work in partnership with CYS as required by the”

regulations. (ALJ Adjudication at 10.)

The ALJ also determined that under the regulations the agency must

consider whether the applicant is able to care, nurture, and supervise children. The

ALJ found that Mr. Keller was not on speaking terms with one of his children and

had called the police after being threatened by another. The ALJ further noted that

Mrs. Keller had three adult children, of whom two had been placed in a group home

as children, one was involved with juvenile probation and put into a placement

program, one had a PFA placed against him by Mrs. Keller, and all three had a

history of drug use. The ALJ concluded that “[i]f we allow the [Kellers] to raise

additional children, there is a good chance that the pattern will continue. The hearing

record is clear.” Id. Accordingly, based on the hearing record the ALJ determined

that the Kellers “lacked the ability to provide care, nurturing and supervision to their

own children, much less children who are wards of the county.” Id.

Next, the ALJ explained that the regulations require the agency to

consider the applicant’s ability to demonstrate stable mental and emotional

adjustment and that, if mental stability is in question, the agency may request a

psychological evaluation. The ALJ noted that CYS had requested a mental health

evaluation of the Kellers and that Mrs. Keller had reported “a life filled with drama,

including being molested through much of her childhood by a variety of people.”

4

Id. The ALJ observed Dr. Small’s conclusion that it was difficult to ascertain

whether Mrs. Keller worked through these issues and that Mrs. Keller’s own

children’s problems “suggest that Mrs. Keller’s problems may have been a

contributing factor to the family dysfunction.” Id.

Additionally, the ALJ explained that under the regulations, when

deciding whether a foster parent applicant should be approved, the agency must

assess the applicant’s existing family relationships, attitudes, and expectations

regarding the applicant’s own children and parent/child relationships and, especially,

as they might affect a foster child. The ALJ noted that there clearly was “an issue

between the [Kellers] and Mrs. Keller’s daughter” and that the “problems involving

the other children of the [Kellers] [was another] cause for concern.” (ALJ

Adjudication at 11.) The ALJ was also concerned that the police had been

summoned to the Kellers’ home numerous times as many of those incidents involved

domestic disputes. Thus, the ALJ concluded that “[a]s a whole, the hearing record

demonstrate[d] a fractured family dynamic.” Id.

The ALJ also observed that the regulations require a foster home to

have financial stability. Based on the information provided by the Kellers in their

application, the ALJ determined that the Kellers’ monthly expenses exceeded their

monthly income by approximately $220. Id.

The ALJ made the following conclusion:

Looking at the totality of the circumstances, the [Kellers]

presented, both to Dr. Small and at [the] hearing, as a

pleasant and friendly couple. However, when you delve

into the information provided both by the [Kellers] and by

CYS, it is clear that the [Kellers] should not be approved

as a foster resource home. The [Kellers], especially Mrs.

Keller, have a long history of family dysfunction. The

[Kellers] are quick to downplay, deny, or disregard the

issues that they have had within both their separate homes

when not a couple, and the familial home and the

5

numerous calls to the police. Mrs. Keller’s mental

stability is in question, as are the family finances. The

children the [Kellers] raised have a history of placement,

substance abuse, juvenile detention, PFAs, DUIs, and

threats of violence. Any one of these issues would have

been good cause for denial of their application. Taken as

a whole, there is no doubt.

...

The burden of proof was on [CYS] to demonstrate, by

substantial evidence, that the [Kellers] failed to meet the

statutory guidelines necessary to be considered as a foster

home. As per the analysis above, CYS has done so. As

such, [CYS] met their burden of proof that their decision

to deny the [Kellers’] application as a kinship foster

resource was correct. For all the foregoing reasons, it is

my Recommendation that the [Kellers’] appeal be denied.

Id. BHA adopted the ALJ’s recommendation in its entirety.

Discussion

The Kellers now petition for review of BHA’s order,2 arguing (1) the

ALJ did not render an unbiased and impartial decision, which necessitates

remanding the matter for another hearing before a neutral ALJ and (2) there is not

substantial evidence in the record to demonstrate that the Kellers are unable to care

for foster children.

2

“This Court’s review in an appeal from an order of [BHA] is limited to determining

whether constitutional rights were violated, whether any errors of law were committed and whether

any necessary factual findings are supported by substantial evidence.” Burns v. Department of

Human Services, 190 A.3d 758, 761 n.1 (Pa. Cmwlth. 2018).

6

A. Judicial Bias

We first address the Kellers’ bias argument. The Kellers argue that

throughout the hearing the ALJ exhibited antagonism toward them. The Kellers

argue that at the beginning of the hearing, the ALJ stated “if you prevail in this

hearing, you are not getting your grandchildren” and “[w]in lose or draw here, you

are not getting your grandchildren because [CYS] is not placing them with you. . . .

I don’t like wasting people’s time.” (Kellers’ Br. at 8.)

The Kellers also argue the ALJ made antagonistic remarks in response

to an objection lodged by the Department. The Department objected to a line of

questioning about the Kellers’ foster care application on the grounds that they

verified the document and were at risk of perjuring themselves. The ALJ stated that

if Mr. Keller answered questions differently than what was written in the application

“he’s cutting his own throat,” and that “if he says it’s incorrect, then clearly that

signature is worthless on the back. . . . So if you’re willing to do that, be my guest

cause it’s only going—it’s only going to do damage.” (Kellers’ Br. at 12.) The

Kellers maintain it was inappropriate for the ALJ to make such comments because

due process demands impartiality and fairness and that the ALJ’s hostile remarks

evidenced judicial bias.

In contrast, the Department argues that the ALJ’s comments did not

exhibit bias. Regarding the comments about the Kellers not getting their

grandchildren, the Department maintains that the ALJ was merely advising the

parties of the scope of his authority, because he lacked authority to order a child

placed in a specific foster care household, and that he was in no way announcing

that he had already decided the outcome of the hearing. With regard to the perjury

comments, the Department alleges that the ALJ simply advised the Kellers that

verified signatures were not to be taken lightly and that admitting to signing a

document with false statements might be detrimental to their case. In any event, the

7

Department notes that the ALJ overruled the objection, permitted Mr. Keller to

answer the question, and Mr. Keller verified that the statements in the application

were correct.

“[A] fair trial in a fair tribunal is a basic requirement of due process.”

Withrow v. Larkin, 421 U.S. 35, 46 (1975); see also Johnson v. Mississippi, 403 U.S.

212, 216 (1971) (“Trial before an ‘unbiased judge’ is essential to due process.”);

Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114,

1145 (Pa. Cmwlth. 2014) (“A fair trial before a fair tribunal is a basic and

fundamental due process requirement.”). This basic precept “applies to

administrative agencies which adjudicate as well as to courts.” Withrow, 421 U.S.

at 46. “A showing of actual bias is unnecessary in order to assert a cognizable due

process claim; the mere potential for bias or the appearance of non-objectivity may

be sufficient to constitute a violation of that right.” Penn Street, 84 A.3d at 1146.

Yet, opinions that are formed by a “judge on the basis of facts

introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also Cellucci v.

Laurel Homeowners Association, 142 A.3d 1032, 1045 (Pa. Cmwlth. 2016) (same);

Penn Street, 84 A.3d at 1147 (same). Accordingly, “judicial remarks during the

course of a trial that are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality challenge.”

Liteky, 510 U.S. at 555; see also, Celluci, 142 A.3d at 1045 (same); Penn Street, 84

A.3d at 1147 (same). Such judicial remarks may support a bias or partiality opinion

“if they reveal an opinion that derives from an extrajudicial source; and they will do

so if they reveal such a high degree of favoritism or antagonism as to make fair

judgment impossible.” Liteky, 510 U.S. at 555. “Not establishing bias or partiality,

8

however, are expressions of impatience, dissatisfaction, annoyance, and even anger,

that are within the bounds of what imperfect men and women . . . sometimes display.

A judge’s ordinary efforts at courtroom administration—even a stern and short-

tempered judge’s ordinary efforts at courtroom administration—remain immune.”

Id. (emphasis in original).

Here, the Kellers point to two instances that demonstrate the ALJ’s

alleged bias. The Kellers argue that in the first instance the ALJ stated that they

would not get their grandchildren under any circumstances. At the hearing, the

following exchange occurred:

JUDGE: Okay. And just as an aside because of the nature

of these types of hearings, did—at the pre-hearing

conference, did the Judge go over the issue between the

application and any placement that the County may or may

not place the child, whether your client’s [sic] win or lose

this hearing? Did they go over anything of that nature?

ATTORNEY GRIMES: They—Judge McMahon did just

for—at the—very beginning at the call explain that it’s just

with regard to licensing, that they can’t order the child

being placed there. I’m not sure if Ms. Gray was on that

call.

ATTORNEY GRAY: I don’t recall, honestly.

...

JUDGE: All. Right. Well, I’ll just—I’ll just go over it

briefly again just to make sure. The issue that [BHA] has

regarding jurisdiction is simply with the application

process. [BHA] does not have jurisdiction regarding

placement of any children. It looks, in, in the hearing

record—again, we haven’t had the hearing yet, but it looks

as if Mr. and Mrs. Keller, you are only looking for specific,

your grandchildren, as a foster resource and no other

children. Is that correct?

9

ATTORNEY GRAY: That’s correct.

JUDGE: Okay. Then let me ask [CYS] this question.

That if the Kellers would prevail, what is [CYS’s] position

on placement of those children with the Kellers?

ATTORNEY GRIMES: We are not in agreement. And

the GuardIa. [sic] Ad Litem for the child is not in

agreement as well, as well as the biological parents.

JUDGE: Okay. So I just want everyone understanding

this, going forward, that if you prevail in this hearing, you

are not getting your grandchildren. Okay? Just so

you’re—everyone is on the same page. I don’t have

jurisdiction over this. I cannot make them do that.

And, in fact, if that [CYS] is not going to do that, you’re

not going to get them. So if you would prevail in this

hearing, then you would be deemed a foster resource for

[CYS], if they wish to place any other random foster

children in your care, other than your grandchildren. But

I want to make this clear, I’m always an individual that

lays my cards out on my sleeve. Win, lose or draw here,

you are not getting your grandchildren because [CYS] is

not placing them with you. Are we all on the same page?

I just, I don’t want to—I don’t like wasting people’s time.

I don’t like, you know, giving anyone a false sense of hope

or security or anything along those lines. I’m not saying

regardless of how this comes out, I just want everyone to

know, be aware, that your grandchildren are not being

placed no matter what happens here today. Are we

understanding that and we’re okay with that?

ATTORNEY GRIMES: Yes.

ATTORNEY GRAY: Yes.

(C.R. at 101-104; Notes of Testimony (N.T.), 4/12/18, at 7-10) (emphasis added).

10

Based on our review of the record, the ALJ did not express such “deep-

seated favoritism or antagonism” toward the Kellers that a fair judgment was

impossible. Liteky, 510 U.S. at 555. Instead, the ALJ merely explained the scope

of his jurisdiction and his lack of authority to order that the Kellers’ granddaughters

be placed with them.

This Court has previously held that under the Juvenile Act,3

“jurisdiction over disputes regarding adoption, custody and placement of dependent

children is vested in the court of common pleas.” Luzerne County Children and

Youth Services v. Department of Public Welfare, 826 A.2d 84, 86 (Pa. Cmwlth.

2003) (emphasis added); see also Burns v. Department of Human Services, 190 A.3d

758, 763 (Pa. Cmwlth. 2018); Ramer v. Department of Human Services (Pa.

Cmwlth., No. 1066 C.D. 2015, filed December 10, 2015), slip op. at 6.4 Thus, the

Department lacks the authority to order a particular child be placed in a foster care

household. Luzerne County, 826 A.2d at 86. Further, section 6351(a) of the Juvenile

Act states that if a child is found dependent “the court may make any of the

following orders of disposition best suited to the safety, protection and physical,

mental, and moral welfare of the child” including, transferring temporary legal

custody to “any relative.” 42 Pa.C.S. §6351(a) (emphasis added); see also Conklin

v. Department of Public Welfare, 522 A.2d 1207, 1210 (Pa. Cmwlth. 1987) (noting

that although a children and youth services caseworker “may make an initial

recommendation regarding the ultimate disposition of a foster child, that

recommendation is clearly not a final order or adjudication and is always subject to

the approval of the court” since section 6351 of the Juvenile Act “empowers . . . the

3

42 Pa.C.S. §§6301-6365.

4

Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court

filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

11

court to order the transfer of legal custody of a dependent child to a foster home or

public welfare facility”).

Here, the ALJ accurately explained to the parties that he could only

make recommendations and findings of fact regarding CYS’s decision to deny the

Kellers’ application to be a foster family resource and that he did not have

jurisdiction to order the placement of the Kellers’ granddaughters. This was not

evidence of bias, but instead, reflects that the ALJ was merely attempting to manage

the parties’ expectations with respect to the purpose of the hearing.

The Kellers also argue that a second exchange involving the ALJ’s

response to the Department’s objection to a line of questioning on perjury grounds

is indicative of bias. After the Kellers’ attorney showed Mr. Keller his foster care

application, which he had submitted to CYS, the following exchange occurred:

ATTORNEY GRAY:

Q: Mr. Keller, could you look at page 11? Can you

look at the amounts on page 11 for net income?

A: Uh-huh (yes).

Q: Is that in your handwriting or someone else’s?

A: Actually, that is in M[r]s. Keller’s handwriting.

Q: Is that correct?

ATTORNEY GRIMES: Your Honor, I’m going to object

if she’s going to—this, this document is verified. So if

she’s now going to perjure—tell—basically have her

client admit to perjury, I’m going to be very concerned

about because both Mr. and Mrs. Keller signed this

document verifying it’s [sic] accuracy under penalty of

perjury on page 29.

JUDGE: I mean, if you want him to answer that, and if he

says that it’s incorrect, then you’re—he’s cutting his own

throat, have at it. I mean, I’ll allow you to ask the question

because that’s what’s happening.

12

ATTORNEY GRAY: Well, if someone has made a

mistake, it’s not perjury.

JUDGE: Well, I know. But it’s a—it’s a blatant error that

they signed off that everything in that document is true and

correct. So you don’t just make mistakes on documents

like that. So if you wish to do that, have it. Ask the

question.

ATTORNEY GRAY: I will.

JUDGE: Okay. Because, if he says it’s incorrect, then

clearly that signature is worthless on the back. So just so

we’re all on the same page, because you don’t—when you

sign a document and it’s on—signed multiple times on

here, on page five and on page 29, it says, not only under

penalty of perjury, but you are swearing that everything on

here is accurate. You don’t just willie nillie fill it in and

say, later on, yeah I screwed up. So if you’re willing to do

that, be my guest cause it’s only going—it’s only going to

do damage. That’s all I’m telling you. Go ahead. Ask the

question.

ATTORNEY GRAY:

Q: Is the amount correct?

A: At the time I signed this, to the best of my

knowledge that was correct.

(N.T., 4/12/18, at 74-76.)

Based on the preceding exchange, this Court can appreciate why the

Kellers might express concern to the ALJ’s comments. Comments such as “cutting

his own throat” and suggestions that a signature will be rendered “worthless” could

have the potential to set hearing participants on edge; especially in cases such as

these where the participants have limited to no experience appearing in a tribunal or

before an adjudicator. While the particular phraseology could have been better

chosen, taken in the context in which the ALJ expressed his thoughts in this matter,

13

we cannot find that the ALJ rendered an impartial adjudication. However, in another

context, the use of these words might have had another unintended result.

Nevertheless, the foregoing exchange did not display “deep-seated

favoritism or antagonism” amounting to judicial bias. Liteky, 510 U.S. at 555. While

the ALJ’s comments regarding counsel for the Kellers’ line of questioning were

somewhat disapproving, judicial remarks that “are critical or disapproving of . . .

counsel [or] the parties . . . ordinarily do not support a bias or partiality challenge.”

Id. As the arbiter of credibility, see S.T. v. Department of Public Welfare, 681 A.2d

853, 856 (Pa. Cmwlth. 1996), the ALJ appears to have been advising Mr. Keller and

his attorney that if Mr. Keller answered questions concerning his income differently

than what was written on the application, it would damage the Kellers’ credibility

because the application was signed under penalty of perjury. Such an opinion

formed on the “basis of facts introduced or events occurring in the course of the

current proceedings” does not constitute bias. Liteky, 510 U.S. at 555. Moreover,

the ALJ overruled the objection, permitted Mr. Keller to answer the question, who

verified what was written on the application, and there is no evidence that the ALJ

considered the exchange in his decision. Accordingly, we conclude that the Kellers

have not demonstrated that the ALJ exhibited such a high degree of favoritism or

antagonism to make a fair judgment impossible.

B. Substantial Evidence

We next turn to the Kellers’ argument that there is not substantial

evidence in the record to demonstrate that they are unable to care for foster children.

The Kellers note that in making his decision, the ALJ placed weight on the fact that

the Kellers had difficult relationships with their children and that Mrs. Keller’s

children had been placed in group homes as children and had struggled with drug

abuse. The Kellers argue that it was unfair for the ALJ to blame them for the actions

14

of their adult children whom they do not control. The Kellers also contend that the

ALJ should not have relied on Dr. Small’s opinion that it was difficult to ascertain

whether Mrs. Keller had worked through the issue of being abused as a child. The

Kellers maintain that CYS “turn[ed] the victim Mrs. Keller into a victim again by

blaming her stating her problems may have been a contributing factor to the family

dysfunction.” (Kellers’ Br. at 16) (internal quotation marks omitted).

Conversely, the Department argues there is substantial evidence in the

record to support the decision to deny the Kellers’ home as a foster family resource.

The Department argues that the foster care regulations list a number of factors to be

considered by an agency when approving a home as a foster family resource. The

Department asserts that CYS presented substantial evidence demonstrating the

Kellers’ inability to meet many of these factors. The Department notes that the

Kellers were unable to demonstrate that they were emotionally and mentally stable.

The Department maintains that the ALJ did not focus on the behavior of the Kellers’

children, but rather, the actions of the Kellers toward their children and how their

relationships with their children reflect on how they may act toward their

granddaughters. Viewing the totality of the evidence, the Department argues there

is more than substantial evidence that the Kellers failed to qualify as a foster family

resource.

Initially, we note that when determining whether factual findings are

supported by substantial evidence, this Court is required to “give the party in whose

favor the decision was rendered the benefit of all reasonable and logical inferences

that may be drawn from the evidence of record; the weight and credibility to be

accorded this evidence is solely within the province of the . . . fact finder.” S.T., 681

A.2d at 856. Substantial evidence is defined as “evidence which outweighs

inconsistent evidence and which a reasonable person would accept as adequate to

15

support a conclusion.” F.R. v. Department of Public Welfare, 4 A.3d 779, 783 (Pa.

Cmwlth. 2010).

The foster care regulations at issue provide as follows:

(a) The [Foster Family Care Agency (FFCA)] shall

consider the following when assessing the ability of

applicants for approval as foster parents:

(1) The ability to provide care, nurturing and

supervision to children.

(2) A demonstrated stable mental and emotional

adjustment. If there is a question regarding the

mental or emotional stability of a family member

which might have a negative effect on a foster child,

the FFCA shall require a psychological evaluation

of that person before approving the foster family

home.

(3) Supportive community ties with family, friends

and neighbors.

(b) In making a determination in relation to subsection (a)

the FFCA shall consider:

(1) Existing family relationships, attitudes and

expectations regarding the applicant’s own children

and parent/child relationships, especially as they

might affect a foster child.

(2) Ability of the applicant to accept a foster child’s

relationship with his own parents.

(3) The applicant’s ability to care for children with

special needs, such as physical handicaps and

emotional disturbances.

(4) Number and characteristics of foster children

best suited to the foster family.

(5) Ability of the applicant to work in partnership

with an FFCA.

55 Pa. Code §3700.64. Further, section 6344(d)(8)(viii) of the Child Protective

Services Law mandates that a prospective foster parent provide evidence of financial

stability. 23 Pa.C.S. §6344(d)(8)(viii).

16

In arguing that the ALJ’s decision was not supported by substantial

evidence, the Kellers do not challenge any of the specific factual findings made by

the ALJ, but instead, appear to object to the weight given certain evidence, which

resulted in the ALJ’s conclusion that the Kellers were unable to care for foster

children. We conclude that the ALJ carefully weighed the evidence presented in

relation to the factors outlined in 55 Pa. Code §3700.64 and section 6344(d)(8)(viii)

of the Child Protective Services Law to reach his decision.

First, in evaluating whether the Kellers were able to work in partnership

with CYS as required by 55 Pa. Code §3700.64(b)(5), the ALJ noted that on the

foster care application, Mrs. Keller stated that she was not comfortable with her

daughter, the mother of the children in question, knowing her home and telephone

number, that her daughter had destroyed items in her home, and that she did not want

her daughter on her property. (ALJ Adjudication at 10) (citing C.R. at 31). Although

not always possible, one of the goals of the foster care system is the reunification of

foster children with their birth parents, see, e.g., In re Adoption of S.E.G., 901 A.2d

1017, 1019 (Pa. 2006); the ALJ concluded that any reunification efforts would be

stalled by Mrs. Keller’s relationship with her daughter and, therefore, that the Kellers

lacked the ability to work in partnership with CYS.

The ALJ also assessed whether the Kellers were able to provide care,

nurturing and supervision for foster children as required under 55 Pa. Code §3700.64

(a)(1) of the foster care regulations. When making the assessment under this section,

the regulations further provide, under 55 Pa. Code §3700.64(b)(1)(2), that the ALJ

should look at existing family relationships and the ability of the applicant to foster

a relationship with the child’s parents. In this regard, here, the ALJ noted that Mr.

Keller was not on speaking terms with one of his children, had called the police after

being threatened by another, and that Mrs. Keller’s children had encountered

significant problems during their lives, including all three being placed in group

17

homes as children, one being subject to juvenile probation, one having had a PFA

placed against him by Mrs. Keller, and all three suffering from drug abuse. (ALJ

Adjudication at 10) (citing CYS Kinship Resource Evaluation, C.R. at 61-65; N.T.,

4/12/18, at 82-84, 107-18).

The ALJ also, pursuant to 55 Pa. Code §3700.64(b)(1), evaluated the

Kellers’ existing family relationships, attitudes, and expectations regarding their

own children and parent/child relationships, especially as they might affect a foster

child. The ALJ found that Mrs. Keller’s relationship with her daughter, problems

involving the Kellers’ other children, and the numerous times that police had been

summoned to the Kellers’ home for domestic disputes were all causes for concern

and might impact foster children placed in their care. (ALJ Adjudication at 11.)

Further, based on the Kellers’ foster home application, in which the Kellers reported

that their monthly expenses exceed their monthly income by approximately $220,

the ALJ concluded that the Kellers had not demonstrated financial stability pursuant

to section 6344(d)(8)(viii) of the Child Protective Services Law. (ALJ Adjudication

at 11) (citing C.R. 36-37).

Additionally, the ALJ examined whether the Kellers had “demonstrated

stable mental and emotional adjustment” as required under 55 Pa. Code

§3700.64(a)(2). The ALJ noted that Mrs. Keller reported being molested by a

variety of people throughout her childhood and that Dr. Small opined that it was

difficult to ascertain whether Mrs. Keller had resolved these issues and that Mrs.

Keller’s problems may have been a contributing factor to her family’s dysfunction.

(ALJ Adjudication at 10) (citing C.R. at 61-65; N.T., 4/12/18, at 17-18). Although

the Kellers contend that the ALJ engaged in victim blaming, the ALJ did not blame

Mrs. Keller for what happened to her but appears to have concluded that, based on

Dr. Small’s opinion, Mrs. Keller had not demonstrated stable mental and emotional

adjustment.

18

In light of the above, the ALJ concluded that the Kellers and, “especially,

Mrs. Keller, have a long history of family dysfunction” and “[i]f we allow the

[Kellers] to raise additional children, there is a good chance that the pattern will

continue.” (ALJ Adjudication at 10-11) (emphasis added). Contrary to the Kellers’

assertion, the BHA did not blame them for the actions of their children, but instead,

concluded that due to the difficulties they faced in raising their own children and the

lack of financial stability, it seemed probable this would impact their ability to

provide care, nurturing and supervision to foster children, as required under the

regulations. This process of assessment, as uncomfortable as it might be, is required

to be undertaken by the ALJ under the regulations. If the findings therefrom dictate

a certain result, the ALJ does not have widespread discretion to alter that result, even

though the result might be deeply disappointing to any well-intended applicants.

The Court views these findings only as part of the assessment process, and not as a

negative reflection on the applicants personally.

On the other hand, we conclude the ALJ’s finding that Mrs. Keller had

not demonstrated stable mental and emotional adjustment was not supported by

substantial evidence in the record. Dr. Small merely concluded in his psychological

report that “it was difficult to ascertain whether M[r]s. [Keller] [had] worked

through the issues of her trauma or predict whether her abuse and neglect would re-

traumatize her.” (C.R. at 64) (emphasis added). Dr. Small did not actually conclude

that Mrs. Keller had not worked through the issues of her traumatic childhood; thus,

any finding to the contrary is speculative and is not a “reasonable and logical

inference” that can be drawn from Dr. Small’s psychological report. S.T., 681 A.2d

at 856. Thus, the psychological report does not support the finding that Mrs. Keller

had not demonstrated stable mental and emotional adjustment because of her

traumatic upbringing.

19

Nonetheless, other evidence of record, heretofore discussed, supports

the ALJ’s determination that CYS met its burden of demonstrating that the Kellers

failed to meet the statutory guidelines necessary to be considered as a foster resource

home. In particular, the evidence of the Kellers’ financial instability, as well as Mrs.

Keller’s complicated relationship with her daughter, the mother of the foster children

in question, which had the potential to negatively impact the children and make

reunification with their mother more difficult, provides strong support for the ALJ’s

determination. Thus, we must conclude there is substantial evidence in the record

to support the ALJ’s decision denying the Kellers’ application to be considered a

foster family resource due to their inability to meet several of the factors listed in 55

Pa. Code §3700.64.

Conclusion

Accordingly, we are constrained to affirm the BHA’s order.

________________________________

PATRICIA A. McCULLOUGH, Judge

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine and Kevin Keller, :

Petitioners :

: No. 1120 C.D. 2018

v. :

:

Department of Human Services, :

Respondent :

ORDER

AND NOW, this 10th day of October, 2019, the July 11, 2018 order of

the Department of Human Services, Bureau of Hearings and Appeals, is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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