Appendix — Derzack v. Allegheny County Children & Youth Services
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Supreme Court, u.s
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O%1105 DEC 5 1997
INTHE
SUPREME COURT OF THE UNFED'STATES
October Term, 1997
No.
KAREN AND MICHAEL DERZACK,
Petitioners,
v.
ALLEGHENY COUNTY CHILDREN & YOUTH SERVICES
Respondent
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF PENNSYLVANIA
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
KATHLEEN A. CRIBBINS, ESQ.
Suite 2000
710 Fifth Avenue
Pittsburgh, PA 15219
(412) 281-3360
Attorney for Petitioners
PAGE
ORDER OF THE SUPREME COURT OF PENNSYLVANIA. ............... 1A
OPINION OF THE SUPERIOR COURT OF PENNSYLVANIA .............. 2A
OPINION OF THE COURT OF COMMON PLEAS OF ALLEGHENY
SEE Vg WUE S 6k cscs nedcveusvscudesccccvseses 77A
fog ee eA ee ee 140A
ee ke en Fe ae me ee 151A
ORDER OF COURT OF JANUARY 17, 1996 ......................00.. 154A
EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS
I aE eS ne 155A
EXCERPT FROM BRIEF OF APPELLANTS TO THE SUPERIOR COURT
OF PENNSYLVANIA - “QUESTIONS PRESENTED FOR REVIEW’ . . 161A
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: BYRAE LAFAY GRIFFIN, — : No. 182 W.D.
a/k/a BYRAE LAFAY JEFFREY and : Alloc. Dkt. 1997
BYRON TODD GRIFFIN, a/k/a : No. 183 W.D.
BYRON TODD JEFFREY, : Alloc. Dkt. 1997
V. : Petition for
PETITION OF MICHAEL AND : Allowance of
KAREN DERZACK : Appeal from the
: Order of the
: Superior Court
ORDER
PER CURIAM
AND NOW, this 8" day of September, 1997, the
Petitions for Allowance of Appeal are denied.
A True Copy Candace Y. Fry
as of: September 8, 1997
Attest: /s/ Candace Y. Fry
Chief Clerk
Supreme Court of Pennsylvania
J-A45047/96
IN RE: BYRAE LAFAY GRIFFIN =: IN THE SUPERIOR
A/K/A BYRAE LAFAY JEFFREY ~~: COURT OF
AND BYRON TODD GRIFFIN, : PENNSYLVANIA
A/K/A BYRON TODD JEFFREY
> NO. 00215
APPEAL OF: MICHAEL AND : PITTSBURGH, 1996
KAREN DERZACK
Appeal from the Order in the Court of Common Pleas of
Allegheny County Juvenile Division,
Nos. J 2625 91 & J 1608 92
IN RE: BYRAE LAFAY GRIFFIN,
A/K/A BYRAE LAFAY JEFFREY
AND BYRON TODD GRIFFIN,
A/K/A BYRON TODD JEFFREY
: NO. 00224
APPEAL OF: MICHAEL AND : PITTSBURGH, 1996
KAREN DERZACK .
Appeal from the Order in the Court of Common Pleas of
Allegheny County, Orphans Court Division,
No. 307 of 1994
BEFORE: TAMILIA, JR., JOHNSON, J., and BROSKY, J.
OPINION BY TAMILIA, J.: FILED: February 19, 1997
Michael and Karen Derzack appeal from the
January 17, 1996 Order entered by Juvenile Court sitting
en banc.' The Order which followed the latter of two
' The court en banc consisted of the Honorable Joseph A. Jaffe,
the Honorable Max Baer and the Honorable Cheryl Allen Craig.
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re
contempt hearings, removed Byrae and Byron Griffin from
the physical custody of appellants and granted Allegheny
County Children and Youth Services (hereinafter “CYS”)
permission to place the children in alternative adoptive
foster care. The court en banc ordered removal after
finding that appellants had violated no less than eight
Orders of court concerning the care and custody of the
Griffin children. The facts relevant to this appeal are set
forth by Juvenile Court as follows, with the Orders deemed
violated by appellants indicated in bold.
Byrae was born drug-addicted, on July 30,
1991 to LaShawn Jeffrey (hereinafter, “Mother”)
and Todd Griffin. Approximately one year later, on
July 15, 1992, Byron was born drug-addicted to the
same parents. On November 30, 1992, four
months after Byron’s birth, Todd Griffin died in an
automobile accident. Byron and Byrae have three
older siblings (brothers) who are the natural
children of Mother but have different fathers.
Byron is the youngest of Mother's five children.
We note that noting in the procedural statutes governing the
conduct of Juvenile Court hearings provides for an en banc
proceeding. However, although appellants filed a Motion to
Strike the Court En Banc, R. 429b, they have not appealed from
the denial of that motion. Accordingly, any challenge to the
propriety of the en banc proceeding was not preserved and is not
at issue in this appeal.
3A
Byrae first came to the attention of this
Court in November 1991. Byrae, then three
months of age, drug-addicted and weighing only
seven pounds, six ounces, was removed from
Mother’s care and taken by paramedics to
Children’s Hospital where she was diagnosed as
suffering from severe mainutrition, dehydration and
a severe skin infection. Children’s Hospital
reported Byrae to be “near death” when admitted.
Following a hospitalization of one week, the
matter of Byrae and her three older siblings was
brought before this Court pursuant to a Petition for
Dependency filed by CYS. On November 21,
1991, Byrae and her three older brothers were
adjudicated dependent. Byrae remained
hospitalized unable to be brought to Court on the
day of adjudication. Her older siblings were
present in Court and were removed that day by
CYS from Mother’s custody with Mother’s consent,
pursuant to Mother’s acknowledgment that she
was unable to care for her children because of a
chronic drug dependency. Upon her discharge
from Children’s Hospital, Byrae was placed by
CYS into the care and custody of her paternal
grandmother, Flora Griffin Shapiro. Byrae
remained in the home of Flora Griffin Sharpiro for
the next eighteen months.
Between the period of November 1991 to
July 15, 1992, this Court held several hearings
regarding the welfare of Mother’s children wherein
evidence of the severe nature and extent of the
neglect suffered by Byrae and her older siblings
was placed on the record. Based upon the serious
nature of the information contained in the record,
Byron’s special health needs at birth as a result of
his drug-addiction and Mother’s abandonment of
Byron when she failed to return to the hospital to
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take him home following his birth, CYS
immediately filed a Petition for Dependency, with
respect to Byron, within days of his birth. This
Court entered an Order on July 27, 1992
adjudicating Byron a dependent child. For
purposes of placement, Byron was designated a
“child in need of special care”.
Initially, CYS sought placement of Byron
with relatives. When efforts to place him with
relatives failed, CYS selected and approved the
Derzacks, a foster care family with Family Services
of Western Pennsylvania (hereafter, “Family
Services”), as a special needs care family, for the
singular purpose of accepting placement of Byron
for a temporary period of time after his discharge
from the hospital. The original understanding
between CYS and the Derzacks was that Byron
was being placed with the Derzacks for a few days,
pending the outcome of the CYS’ petition for
Dependency which had been filed on Byron’s
behalf. Byron was placed with the Derzacks on
July 21, 1992. On the date of his first placement,
Byron was six days old.
Following the dependency adjudication,
CYS returned Byron to the Derzacks’ home while
an adoption plan was being developed. Byron's
original adoption plan was being developed under
a new CYS policy which had been adopted on May
15, 1992 by CYS and captioned, “Children and
Youth Services Transracial Placement Policy”
(hereafter “transracial placement policy”). The
transracial placement policy was an internal policy
which grew out of a national concern for African-
American children being displaced in white homes
and the impact of such placements on their lives.
This policy was drafted hy a CYS committee
chaired by Mary C. Young, then the Recruitment
SA
and Placement Resources Manager for Children
and Youth Services. As a matter of routine, draft
copies of the transracial placement policy were
circulated within the agency and the Court for
review. On or about February 14, 1991, the
Honorable Cheryl Allen Craig, a young, newly-
appointed judge in the throes of her first election,
received a courtesy copy of CYS’ transracial
placement policy to review. In the cover letter
accompanying the draft of CYS’ transracial
placement policy, Ms. Young requested feedback
from Judge Craig regarding CYS’: (1) rationale for
the policy, (2) limitations placed on how long a
child could wait to be placed in an adoptive home
of the same ethnic background, (3) position
regarding children of mixed parentage and (4)
position regarding permanency. The last
paragraph of Ms. Young's letter of February 13,
1991 read: “We would greatly appreciate your
responses on this matter, if it will be of no conflict
of interest in your present capacity. Please call me
if you have any questions and/or advice on this
subject.” Ms. Young was deposed by counsel for
the Derzacks on March 2, 1995. When asked, “Do
you know if Judge Craig responded to this letter?”,
Ms. Young Testified, “She did not”. Although
Byron and the Derzacks’ case fell under CYS’
transracial adoption policy, Byron’s status in the
Derzacks’ home remained uninterrupted for five
months while CYS completed his adoption plan
and identified an African-American pre-adoptive
home.
By letter dated December 15, 1992, CYS
advised the Derzacks that a pre-adoptive home
had been found for Byron and that a representative
of CYS would arrive at the Derzacks’ home on
December 16, 1992 to take him away. The
Derzacks responded to the CYS letter by notifying
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the news media to come to their home to film their
planned confrontation with CYS. To avoid a
confrontation with the Derzacks and trauma to
Byron, CYS left Byron in the Derzacks’ home and
petitioned the Court that day for an immediate
hearing to resolve the impasse. A hearing on CYS'
petition was held before this Court on the following
day, December 17, 1992.
At the hearing held December 17, 1992,
this Court specifically addressed CYS’ internal
transracial placement policy and determined that
CYS' selection of an African-American pre-
adoptive home for Byron, solely on the basis of
color was not in the best interest of the child.
Consequently, this Court overruled CYS’ internal
transracial placement policy and entered an Order
continuing Byron’s placement with the Derzacks.
This Court further ordered CYS to assist the
Derzacks in adopting Byron, thus rendering moot,
the issue of transracial adoption with respect to the
Derzacks, this Court having found in favor of the
Derzacks when Byron was returned to them, for
the purpose of adoption, in December 1992.
With the exception of giving birth to Byron
on July 15, 1992, Mother remained absent from
and uninvolved in the rearing of Byron and Byrae
from November 1991 until January 1993. On or
about January 1993, Mother visited with Byrae,
who was then living with her paternal grandmother,
and attempted to reestablish a mother-child
relationship with Byrae, for the first time since the
child’s dependency adjudication in November
1991. No attempt was made by Mother to visit
with Byron, at this time. The Court, therefore,
returned Byron to the Derzacks, following a review
hearing held on March 12, 1993. Dr. Patricia
Piercy was appointed to conduct psychological
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evaluations of Byron and to monitor and evaluate
his adjustment to living with the Derzack family.
In late March 1993, Mother contacted CYS
and, for the first time since his birth, requested to
visit with Byron. Although still drug dependent,
Mother advised CYS the she had completed a
twenty-eight day program in Meadeville,
Pennsyivania and desired to find placement in a
longer term drug rehabilitation program with the
hope that she could eventually regain custody of
her children. Subsequently, Mother was accepted
into an inpatient drug rehabilitation program at the
Sojourner House in Pittsburgh, Pennsylvania. Her
Official entry date into the program was April 6,
1993.
Based upon Mother’s success at Sojourner
House, this Court entered an Order on June 25,
1993 reuniting Mother and Byrae. Byrae was
removed from the home of her paternal
grandmother and sent to live with Mother and
Byrae at Sojourner House. On December 20,
1993, based upon progress shown in Mother's
treatment in her drug rehabilitation program and
her desire to be reunited with her youngest child,
this Court ordered that Byron be sent to live with
Mother and Byrae at Sojourner House. The Order
included a stipulation that in the event that Byron
needed “respite, shelter or temporary care”, the
Derzacks should provide it.
On December 21, 1993, the Derzacks
issued a news release criticizing Mother. After the
news release, the Derzacks contacted the news
media and invited them to be in attendance at their
home to film and report Byron’s removal. Even
though CYS attempted to avoid additional media
exposure to Byron by changing the removal date
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eee
ee
from December 28th to December 27", the
Derzacks were successful in creating another
media spectacle of the event. In spite of the media
spectacle, Byron was removed from the Derzacks’
home on December 27, 1993, pursuant to this
Court’s Order of December 20, 1993.
On January 24, 1994, this Court issued an
Order prohibiting the discussion of Byron in public
by anyone involved in any capacity with Byron’s
care and granted the Derzacks permission to visit
with Byron four hours a month. This Court was
advised on or about February 1994 that the
Derzacks had ignored the January 24, 1994 court
Order and had hired a writer with whom they
intended to co-write a book about Byron entitled,
“Bird Without Feathers”. “Bird Without Feathers”
was subsequently written and published.
Mother, Byrae and Byron lived together at
Sojourner House until April 1994. In April 1994,
Mother was released from Sojourner House and
entered a relapse prevention program known as
the Penn Free Program with Byron and Byrae.
The Penn Free Program is designed to assist
chemically dependent individuals in making the
transition from a structured rehabilitation program
to independent living in the community. On April
20, 1994, the Derzacks’ visitation privileges, as to
Byron, were terminated when Michael! Derzack
spoke to the media in violation of this Court's
January 1994 Order prohibiting the discussion of
Byron in public. In spite of the Court’s termination
of their visitation privileges, the Derzacks
continued to place Byron’s case before the public,
in complete disregard for the Order of Court
prohibiting such behavior.
9A
In spite of the intensive assistance provided
by the Penn Free Program and the Right Start
Program, an in-home parenting service provided to
Mother four days a week by CYS, mother renewed
her drug use in June 1994.
On June 28, 1994, Byron and Byrae were
removed from the custody and care of Mother
when the Court received evidence that Mother was
again using crack cocaine. By Order of Court, as a
temporary measure until further order of court,
Byron and Byrae were placed with their older
siblings in the home of their maternal great aunt,
Marion Ellis. This was the third placement family
for both Byron and Byrae.
On July 5, 1994, this Court reviewed
Byron’s and Byrae’s temporary placement with
Marion Ellis. At this hearing, the Court ordered the
continued temporary placement of Byron and
Byrae with Marion Ellis and interactional and
developmental evaluations of Mother and all of her
five children. Mother was also granted unlimited
supervised visits with Byron and Byrae based upon
her renewed active participation in the Penn Free
Program. in spite of the efforts of the Court and
CYS to assist Mother in every way possible to
maintain a relationship with Byron and Byrae,
Mother resumed her drug use within two weeks of
issuance of the July 5, 1994 Order of Court.
Consequently, this Court granted a Petition to
intervene filed by the Derzacks and directed CYS
to file a petition to terminate Mother's parental
rights as to Byron and Byrae within ninety days.
interactional and developmental evaluations of
Marion Ellis, the Derzacks, Byron and Byrae were
ordered by the Court.
10A
Byron and Byrae remained in the care and
custody of Marion Ellis until October 6, 1994.
During the time that Byron lived with Marion Ellis,
he continued to visit with the Derzacks. Based
upon the recommendations set forth in the
interactional and developmental evaluations and
upon Marion Ellis’ health and surrogate
responsibilities with regard to Mother’s three older
children, this Court determined that it was in the
best interest of Byron and Byrae to be placed with
the Derzacks for the purpose of adoption.
In preparation for what was hoped to be
Byron and Byrae’s last placement into the care and
custody of the Derzacks to await completion of the
Derzacks’ adoption plan, this Court entered an
Order on October 5, 1994 which incorporated
dependency restrictions and foster care
regulations. The dependency restrictions and
foster care regulations clearly stated that written
consent from CYS or an Order of Court was
needed for the Derzacks to travel outside of
Allegheny County with Byron and Byrae. This
Order was later ignored by the Derzacks when
they travelled with Byron and Byrae to California
and New York to tape several nationally televised
talk shows discussing the children without written
consent from CYS or this Court.
On October 6, 1994, this Court ordered
that both Byron and Byrae be immediately placed
with the Derzacks as an adoptive foster care
placement and, inter alia, that supervised visitation
privileges be granted to Byron and Byrae’s Mother,
paternal grandmother and three older siblings.
Two weeks later, on October 20, 1994, the
Derzacks appeared in The Maury Povich Show, a
nationally televised talk show, discussing Byron
and his case, in violation of this Court’s Order of
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January 24, 1994. In response, the child advocate
representing the interests of Byron and Byrae
petitioned this Court to find the Derzacks in
contempt of court for violation of its Order of
January 24, 1994. On November 14, 1994, this
Court entered a second Order prohibiting all
parties from exposing Byron and Byrae to the
public vis-a-vis discussions or references.
On April 12, 1995, this Court heard CYS’
petition to involuntarily terminate Mother's parental
rights and entered supplemental orders which
modified this Court’s October 6, 1994 Order by (1)
granting visitation rights to additional relatives of
Byron and Byrae, (2) providing a time certain for
Byron and Byrae’s great aunt, paternal
grandmother and siblings to visit with the children
and (3) reaffirming its November 14, 1994 Order
that all parties refrain from public discussion or
reference to the children.
At the Derzacks’ contempt hearing held
December 13, 1995 before the court en banc,
Timothy Jashinski, an adoption caseworker for
CYS, testified that the Derzacks initially permitted
Byron's and Byrae’s great aunt, paternal
grandmother and siblings to visit the children upon
request for several months, in compliance with this
Court’s Orders. Then, shortly after learning of
CYS’ petition for termination of the parental rights
of Mother, the Derzacks began to refuse to allow
Byron and Byrae to visits with their relatives and
siblings unless they (the Derzacks) were permitted
to be a part of the visits. (Tr.30, 103). Timothy
Jashinski testified that the Derzacks unilaterally
terminated Byron and Byrae’s visits with their
relatives and siblings, in August 1995, stating to
CYS that their attorney had told them that they had
been “granted” or “appointed” in loco parentis, they
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repeatedly used the term to justify their refusal to
obey any and all Court Orders issued after April
1995.
On May 9, 1995, this Court entered an
Order directing CYS to comply with this Court’s
Order of October 6, 1994, with respect to family
member visitations with the children. The Order of
May 9, 1995 further directed CYS to arrange for
professional therapeutic intervention, consultations
and evaluation of Byron and Byrae. Additionally,
the CYS caseworker was ordered to make
announced and unannounced visits at the home of
the Derzacks. In May 1995, Dr. Debra
Klosterman, was under contract with CYS to
observe Byron and Byrae’s interactions with the
Derzacks and with their relatives and siblings
during scheduled visits. (T. 105). The Derzacks,
however, failed or refused to schedule visits with
Dr. Klosterman and Byron and Byrae until after the
Contempt hearing held on December 13, 1995.
On August 14, 1995, this Court found that
it was in the best interest of Byron and Byrae to
visit with their siblings and their paternal
grandmother and ordered that the siblings and
paternal grandmother visit with Byron and Byrae
every week, free of observation, attendance or
participation of the Derzacks until further Order of
Court. The Order of November 14, 1994,
prohibiting all parties from exposing Byron and
Byrae to the public vis-a-vis discussions or
references, was to remain in full force and effect.
In spite of the Orders of October 5, 1994,
prohibiting travel outside of Allegheny County
without the consent of CYS or the Court, the
Derzacks travelled to New York with Byron and
Byrae to appear on the Montel Williams talk show
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on October 16, 1995 and, as part of their interview,
mentioned over national television the children’s
names and discussed the circumstances
surrounding the children being in theircare. Since
October 16, 1995, the Derzacks have appeared on
the following nationally televised talk shows
discussing Byron, Byrae and/or their legal and
personal efforts to gain custody of the children:
Sally Jesse Raphael Show, the Leeza Gibbons
Show and the Rikki Lake Show. This Court takes
judicial notice of Byron and Byrae’s appearance
“on camera” on at least three of the televised talk
shows and of the appearance of their names and
photographs in numerous newspaper articles. The
unauthorized travel to appear on talk shows and
the intentional exposure of Byron and Byrae to the
media, for the purpose of discussion of this case,
was in violation of this Court’s Orders cf October 6,
1994, November 14, 1994, April 12, 1995 and
August 14, 1995.
On October 27, 1995 Timothy Jashinski
made an announced, prescheduled visit to the
home of the Derzacks and was prevented by
Karen Derzack from speaking privately with Byron
and Byrae and observing their physical condition
up close. According to Timothy Jaskinski's
testimony, Karen Derzack placed Byron and Byrae
at the top of the stairs while he remained at the
bottum of the stairs, believing that he was not
permitted to go up the stairs. (Tr. 103). After
asking Byron and Byrae two or three general
questions, Karen Derzack abruptly terminated
Timothy Jashinski’s visit with the children by telling
him that “the questions will stop”. (Tr. 83).
In November 1995, this Court was advised
by the child advocate representing Byron and
Byrae, that based upon information contained in a
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™
federal lawsuit for workers compensation filed by
Karen Derzack in August 1994, Karen Derzack had
failed to properly answer a question on the
Derzacks’ foster care application which concerned
past treatment for a mental iliness. This same
question was also improperly answered on the
Derzacks’ application for adoption. The Court was
further advised that the Derzacks had falsely
represented their income on either their IRS tax
returns or their adoption application or both, as
these two documents reflected a significant
discrepancy of tens of thousand of dollars per year
in the Derzacks’ reported annual income from 1990
to 1993.
On December 1, 1995, one day before the
instant Contempt hearing, the Derzacks filed for
personal bankruptcy claiming debts in excess of
$540,000.00. The Derzacks stated that their legal
expenses had forced them into bankruptcy.
(Slip Op., Craig, J., 5/10/96, pp. 2-13; emphasis added.)
Hearings on CYS’ petition and amended petitions
for contempt were held on December 13, 1995 and
January 17, 1996. At the conclusion of the latter hearing,
the court adjudicated appellants in contempt of the eight
Orders of court indicated above in bold and directed CYS
to immediately remove Byron and Byrae for the purpose of
placing them with another pre-adoptive foster family. This
appeal followed.
Before turning to the substance of appellants’
claims, we must first address three procedural issues.
Initially, appellants claim Juvenile Court lacked jurisdiction
“to alter the placement of two dependent children when
the placement Order was the subject of two pending
appeals before the Superior Court.” (Appeliants’ brief at
4.) The “two pending appeals” referred to by appellants
were the appeal by LaShawn Jeffrey from the April 12,
1995 Order terminating her parental rights,” and the
appeal of Marion Ellis from the October 6, 1994 Order
returning the children to appellants’ home.* Appellants’
brief argument on this point is premised on Pa.R.A.P.
1701, which provides as follows:
Rule 1701. Effect of Appeal Generally
(a) General rule. [A]fter an appeal is taken. . the
trial court or other government unit may no longer
proceed further in the matter.
2 Ms. Jeffrey’s appeal was denied on June 3, 1996. /n re: Byron
Jeffrey and Byrae Griffin, 01862 Pittsburgh, 1994.
3 Ms. Ellis’ appeal was denied on May 13, 1996. /n Re: Byron
Griffin, 02052 Pittsburgh, 1994.
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We reject appellants’ claim that Rule 1701 ousted
the jurisdiction of Juvenile Court to conduct the contempt
hearings at issue. Initially, appellants’ argument overlooks
subsection (c) of Rule 1701, which provides:
Rule 1701. Effect of Appeal Generally
(c) Limited to matters in dispute-—Where only a
particular item, claim or assessment adjudged in
the matter is involved in an appeal, or in a petition
for review proceeding relating to a quasijudicial
order, the appeal or petition for review proceedings
shall operate to prevent the trial court or other
government unit from proceeding further with only
such item, claim or assessment. . .
Since the appeals pending at the time of the
instant contempt hearings related only to the termination
of LaShawn Jeffrey’s parental rights and removal of the
children from the physical custody of Marion Ellis, they did
not prevent Juvenile Court from considering whether
appellants had violated the Order regarding their custody
of the children. Simply put, the Orders challenged in the
pending appeals were neither relevant to nor at issue in
the contempt proceedings. Thus, each pending appeal
raised a “particular item [or] claim” and Juvenile Court was
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preciuded from proceeding “with only such item [or]
claim[.]” On this basis, we find that Juvenile Court
retained jurisdiction over all issues relating to the
contemptuous conduct of appellants. A review of Juvenile
Court’s statutory authority further supports this conclusion.
The Juvenile Act, 42 Pa.C.S. § 6301 et seq.,
clearly vests in Juvenile Court a broad and continuing
power to adjudicate in the best interests of dependent
children. For instance, 42 Pa.C.S. § 6351(a) provides in
relevant part:
§ 6351. Disposition of dependent child
(a) General rule.—If the child is found to be
a dependent child the court may make any of the
following orders of disposition best suited to the
protection and physical, mental, and moral welfare
of the child:
(1) Permit the child to remain with his
parents, guardian, or other custodian, subject to
conditions and limitations as the court prescribes,
including supervision as directed by the court for
the protection of the child.
(2) Subject to conditions and limitations as
the court prescribes transfer temporary legal
custody to any of the following:
(i) Any individual resident within or without
this Commonwealth who, after study by the
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probation officer or other person or agency
designated by the court, is found by the
court to be qualified to receive and care for
the child.
(ii) An agency or other private organization
licensed or otherwise authorized by law to
receive and provide care for the child.
(iii) A public agency authorized by law to
receive and provide care for the child.
Id. in In Re Tameka M., 525 Pa. 348, 580 A.2d 750
(1990), our Supreme Court construed section 6351 as
follows:
The Juvenile Court maintains a continuing plenary
jurisdiction in dependency cases under 42
Pa.C.S.A. § 6351 . . .and has the power to review
the circumstances of dependent juveniles and to
question both the legal custodian, CYS, and the
foster parents concerning the condition and the
needs of the dependent child.
[Instantly], Juvenile Court acquired continuing
jurisdiction under section 6351(a)(2) once that
court found Tameka M. to be a dependent child.
Id. At__, 580 A.2d at 752 (emphasis added). Similarly,
we find that Juvenile Court acquired continuing jurisdiction
under section 6351(a) when it adjudicated Byron and
Byrae Griffin dependent.
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Were we to accept appellants’ argument that
Juvenile Court is deprived of jurisdiction once an appeal of
any aspect of a dependency action is filed, we would
render the court powerless to prevent any abuse, no
matter how egregious, of a dependent child at the hands
of his custodian. Most dependency actions, and
especially those as prolonged as the one currently at
issue, involve a variety of issues, parties and Orders of
court. A holding that deprives Juvenile Court of
jurisdiction merely because a single Order, involving any
issue or party, has been appealed would not only defy
logic, but it would also frustrate the statutory authority of
Juvenile Court to exercise continuing independent and
original authority to adjudicate in the best interests of a
dependent child. See In Re Lowry, 506 Pa. 121, _, 484
A.2d 383, 386 (1984) (“[Juvenile Court] acts pursuant to a
separate discretionary role with a purpose of meeting the
child’s best interests.”).
Secondly, appellees claim appellants lack standing
to pursue the instant appeal. They base this claim on our
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recent en banc decision in In the Interest of G.C., 449
Pa. Super 258, 673 A.2d 932 (1996). In G.C., this Court
held:
[Bjecause foster parents have neither permanent
custody of their foster children nor an expectation
of permanent custody, the decision of a legal
custodian regarding custody does not cause the
type of direct and substantial injury necessary for
standing.
Id. At__, 673 A.2d at 939. According the appellees, since
appellants are foster parents, G.C. deprives them of
standing to challenge Juvenile Court's removal Order.
Initially, we note that while seven of eight judges in
G.C. agreed that a remand for further proceedings was
necessary, the Court split evenly on the issue of standing.
Thus, while the Opinion operated to affirm the trial court’s
determination of standing, it has no precendential
authority. See Chesler v. Govt. Employees Ins. Co.,
302 Pa. Super. 356, 360, 448 A.2d 1080, 1082 (1982)
(recognizing that a split decision “carries no weight as
precedent.”). Of course, the split decision in G.C. also left
standing existing law, which had repeatedly denied
21A
standing to foster parents in a variety of circumstances.
See e.g., In re: Adoption of S.C.P., 364 Pa. Super. 257,
527 A.2d 1052 (1987) (foster parents lack standing to
pursue custody of former foster children); Priester v.
Fayette County Children and Youth Services (CYS),
354 Pa. Super. 562, 512 A.2d 683 (1986) (foster parents
lack standing to seek custody of foster child removed from
their home); In re Adoption of Crystal D.R., 331 Pa.
Super. 501, 480 A.2d 1146 (1984) (foster parents lack
standing to file for termination of parental rights).
However, the facts of this case are somewhat different
from those in which foster parents traditionally have been
denied standing.
Specifically, although appellants were designated
as foster parents at the — of Byron’s initial placement
on July 21, 1992, it is clear that their status ultimately
changed. At least as early as December 17, 1992, when
Juvenile Court directed CYS to assist appellants in
adopting Byron, appellants were considered prospective
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a
adoptive parents. The court’s Order of July 14, 1995 also
indicates:
“This court, at this time, is satisfied that
[appellants] are appropriate prospective adoptive
parents[.]
(Order, 7/14/95, R. 372b.) See also Slip Op. At 1 (“Karen
and Michael Dezack [are] the proposed adoptive parents
of Byron Todd Griffin . . .and his sister, Byrae Lafay
Griffin[.]”).
On the issue of standing, this change in appellants’
designation is critical. As this Court explained in, Mitch v.
Bucks County Children and Youth Social Service
Agency, 383 Pa. Super. 42, 556 A.2d 419 (1989):
“[P’]Jrospective adoptive parents, unlike foster
parents, have an expectation of permanent
custody which, though it may be contingent upon
the agency’s ultimate approval, is nevertheless
genuine and reasonable. Because of this
expectation of permanency, prospective adoptive
parents are encouraged to form emotional bonds
with the child from the first day of placement. By
removing the child from the care of the prospective
adoptive parents, the agency forecioses the
possibility of adoption. In light of the expectation of
permanent custody that attends an adoptive
placement, an agency’s decision to remove a child
constitutes a direct and substantial injury to
prospective adoptive parents. Because
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prospective adoptive parents, unlike foster parents,
suffer a direct and substantial injury when an
agency removes a child from them, we see no
reason in law or policy why we should limit their
standing to sue for custody.
Id. At__, 556 A.2d at 423.* A recent panel of this Court
also recognized the standing of prospective adoptive
parents in dependency and custody actions. See
Mollander v. Chiodo, ___ Pa. Super. ,_—_—«w 675 A.2d
753, 757 (1996), citing In re: Baby Boy S., 420 Pa.
Super. 35, 43, 615 A.2d 1355, 1357-1358 (1995), affd Per
Curiam, 540 Pa. 302, 657 A.2d 484 (1995) (“Standing. .
.has also been found in prospective adoptive parents who
received custody from an agencyJ.]"). On this basis, we
reject appellees’ claim that appellants lack standing to
pursue the instant appeal.
The third claim we must address before turning to
the merits of this appeal is that the contempt proceedings
were conducted in violation of appellants’ due process
* in the Interest of G.C.,__ Pa. Super.__, 673 A2d 932
(1996), also noted the importance of the fact that “Mitch involved
prospective adoptive parents rather than . . foster parents[.]” Id.
At___, 673 A.2d at 934.
24A
rights. Specifically, appellants claim they “had neither
notice that their children might be taken from them as a
result of the contempt proceedings nor did they have
motivation to prepare a defense to removal.” (Appellants’
brief at 39.) We reject this claim.
Initially, we reiterate that appellants first entered
this case as foster parents. As we noted in G.C., “When
foster parents enter into their relationship with the child,
they know. . .that the agency has the authority to remove
the child[.]” In the Interest of G.C.,supraat _, 673
A.2d at 936 (emphasis in original), citing In re: Adoption
of Crystal D.R., 331 Pa. Super. 501, 509-510, 480 A.2d
1146, 1150-51 (1984). Thus, from the very beginning,
appellants were on notice that the children could be
removed at any time. Moreover, even after entry of the
December 17, 1992 Order directing CYS to assist
appellants in adopting Byron, which first recognized
appellants as prospective adoptive parents, the record
indicates that appellants knew or should have known of
the court’s authority to Order removal. Of particular note
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is the Order of December 20, 1993, which removed Byron
from the custody of appellants for the purpose of reuniting
him with his mother. Rather than challenging this Order
on due process grounds, appellants created a media
spectacle, as they had done before, to prevent Byron’s
removal. Nonetheless, Byron was removed on December
27, 1993. Since this removal occurred more than one
year after appellants were identified as prospective
adoptive parents, their claim that they were unaware that
removal was an option available to Juvenile Court is
dubious.
Further, no less than four contempt petitions were
filed against appellants between July of 1995 and the
December 13, 1995 hearing date. These pleadings clearly
put them on notice of the subject of the contempt hearings
and they do not contend otherwise. Instead, they claim
only that they were unaware that removal could result.
During their extensive involvement in this case, appellants
have attended numerous hearings. They were clearly
aware, and do not deny, that determining the best
26A
interests of the children was the ultimate goal of every
single hearing. As appellants were also aware, several of
these hearings resulted in removal Orders. In fact,
appellants have seen the children moved, by court Order,
from their home to the home of relatives, and from
residential placement with their mother back to appellants’
home. No notice explicitly providing that removal was an
option was provided before any of these hearings. This
was so because all parties understood at all times that the
broad authority of Juvenile Court to adjudicate in the best
interests of dependent children includes the power of
removal. Without that power, Juvenile Court's authority
would be illusory. Finally, as a matter of common sense, it
appears doubtful that appellants were truly under the
impression that removal could not result regardless of the
number and types of contempt they committed. In light of
these facts we are convinced that appellants were on
notice that removal could result from the hearings of
December 13, 1995 and January 17, 1996.°
° Of course, our conclusion that appellants had notice that
27A
As the transcripts indicate, both appellants
presented extensive testimony and were represented by
competent counsel throughout the contempt proceedings.
They were provided every opportunity to explain or defend
their conduct. Having failed to do so adequately,
appellants cannot now compiaint that they were unaware
of the intended purpose of the contempt hearings or that
they were denied the opportunity to be heard. Having
rejected appellants’ due process challenge, we proceed to
the substantive issues presented by this appeal.
removal could result from the hearing of December 13, 1995 also
means that they had notice that removal could result from the
hearing a month later, on January 17, 1996. At any rate,
removal was discussed extensively at the conclusion of the
hearing of December 13. For instance, Judge Baer stated:
The $64,000 question is whether this record, or this
record coupled with what’s been heard before by Judge
Jaffe, would lead us to believe that it’s not in the best
interest of these kids to be in this home and, if so, they
should be removed[,] and if not, they shouid be left
there.
(N.T., 12/13/95, pp. 161-162.) Thus, any claim that appellants
were not aware that removal was being considered, at least by
the hearing of January 17, 1996, is not credible. Finally, it is
interesting to note that at the December 13 hearing appellants’
counsel, rather than expressing surprise that removal was an
option, argued that removal “would certainly not be in the best
interests of the children.” (N.T. at 161.)
28A
Specifically, appellants claim “the decision to
remove Byron and Byrae from the Derzack home was
based on gross misrepresentations and conclusions
concerning the Derzacks conduct and was manifestly
unreasonable[.]” (Appellants’ brief at 19.) A review of
appellants’ discussion of this issue reveals that, in reality,
they are asserting two claims. First, appellants allege an
abuse of discretion in the Juvenile Court’s “findings that
the Derzacks violated court orders for conduct which had
been pre-approved by the court, court orders which did
not exist at the time of the conduct in question and court
orders which the Derzacks had no way of knowing about.”
(Appellants’ brief at 20.) Appellants also claim “to the
extent that violations had occurred, none warranted
removal of the children from their home[.]” /d.
Notwithstanding their apparent concession “that violations
had occurred”, we will address appellants’ claim that they
did not knowingly violate any Orders of court.
Initially, we note our standard of review:
29A
It is of course true that our paramount concern in
child custody cases is to determine the best
interests of the child. Thus, appellate review of
child custody Orders is of the broadest type, and
we may modify the trial court’s custody
determination where it is shown by evidence of
record to be manifestly unreasonable[.] Further,
our review is not bound by the trial court's
deductions, inferences and interpretations of
evidence and we will exercise independent
judgment to consider the merits of the case and to
enter an order that is correct and just.
in Interest of G.C., supra at__, 673 A.2d at 943
(citations omitted).
However, this broad scope of review does not vest
in the reviewing court the duty or the privilege of
making its own independent determination. Thus
an appellate court is empowered to determine
whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.
McMillen v. McMillen, 529 Pa. 198, __, 602 A.2d 845,
847 (1992) citations omitted.
Applying this standard of review to the record
before us, we find no error in Juvenile Court’s conclusion
that appellants were in contempt of court. In order to
maximize the clarity of this analysis, the Orders at issue in
30A
this appeal are summarized as follows and the acts of
appellants which violated these Orders are then
addressed seriatim:
1. Order of October 5, 1994; requiring, inter alia,
“consent for the child to travel out of the
jurisdiction[.]” (R. 361b)
2. Order of October 6, 1994; requiring “significant
follow-up services. . .including but not limited to in-
home services and mental health counseling” and
authorizing CYS supervised visits by mother,
paternal grandmother and siblings. (R. 363-364b.)
3. Order of November 14, 1994; requiring “that
parties are to have no contact with the public vis-a-
vis discussing or referring to this case in any public
context or forum.” (R. 365b.)
4. Two Orders dated April 12, 1995; requiring
sibling visitation “every other Wednesday from 4:00
p.m. until 6:00 p.m.” and visitation by the children’s
paternal grandmother, Flora Griffin Shapiro “every |
other Tuesday from 3:30 p.m. until 7:30 p.m.” (R.
368b.)
5. Order of May 9, 1995; requiring that CYS
“arrange for therapeutic intervention and
counseling for Byron and Byrae, and for an
evaluation of the effect of the visitations on Byron
and Byrae” and directing CYS “to make announced
and unannounced visits” at the Derzack home. (R.
: 370b.)
6. Order of July 14, 1995; requiring appellants to
correct their adoption/foster care application and
adoption petition to reflect appellant/wife’s previous
SiA
psychiatric history and to provide proof of
appellants’ annual income for the previous five
years. (R. 372b.)
7. Order of August 14, 1995; stating “specifically,
Michael and Karen Dezack are not permitted to
observe, attend or participate in [sibling] visits.” (R.
373b.)
8. Order of October 13, 1995; requiring appellants
to permit announced and unannounced home visits
with the children by CYS caseworker. (R. 375b.)
TRAVEL OUTSIDE OF ALLEGHENY COUNTY
Juvenile Court found a violation of the October 5,
1994 contempt Order based on appellants’ “travel with
Byron and Byrae to California and New York to tape
television programs without written permission from CYS
or consent of court to travel outside of Allegheny County.”
(Slip Op. At 22.) Initially, appellants claim they were
unaware “that the October 5, 1994 Order existed prior to
the contempt hearing of December 13, 1995.”
(Appeliants’ brief at 21.) Appellants also refer to the Order
as the “purported Order’, id., and state that they are “left
wondering about the origins of the October 5 order’, id. At
23. Nonetheless, our review of the certified copy of
32A
docket entries in this case reveals that the “purported”
Order was filed with the prothonotary on the date it was
issued. In the absence of an allegation that the Order was
somehow filed in error, we do not share appellant's
concerns about the “origins of the October 5 order’.
Appellants also claim they were never informed by
CYS that permission was recjuired before the children
were taken outside of Allegheny County. Likewise, they
claim they never received the CYS foster care manual,
which expressly states that permission is required before
foster children may leave the jurisdiction. The record
belies appellants’ contention that they were unaware of
the permission requirement. For instance, at the
December 13, 1995 contempt hearing, counsel for CYS
entered into evidence a vacation permission form,
identified as Exhibit N, which had been filed by appellants
on June 1, 1995 (N.T., 12/13/95, p. 50). The form
indicates that appellants had sought and received
permission from CYS to take Byrae on vacation from June
8 through June 12, 1995. In light of this form, it is clear
33A
that appellants knew of the requirement that they seek
permission prior to taking the children out of Allegheny
County.
The date on which appellants sought permission to
take Byrae on vacation is also relevant in light of the dates
on which Juvenile Court found violations of the October 5,
1994 Order. For instance, the court found that appellants
had violated the Order by traveling, with the children, to
California on November 9, 1995 in order to tape the
nationally televised talk show “Leeza”. Thus, more than
five months after appellants filed the form of June 1, 1995,
thereby manifesting awareness of the permission
requirement, they traveled with the children to California
without requesting permission to do so.
Moreover, because the children also appeared on
camera during the taping of the “Leeza” show, appellants
cannot and do not deny that they took the children to
California. Instead, they gloss over this violation and
argue only that they did not also take the children to New
York to tape another talk show. However, a finding of
34A
contempt is not dependent upon the number of times a
court Order is violated, and we find no abuse of discretion
in the Juvenile Court's conclusion that appellants violated
the Order of October 5, 1994, when they admittedly
traveled with the children to California.
Finally, in considering appellants’ denial that they
also took the children to New York, we note that the
testimony of both appellants, as a general matter, was
deemed incredible by Juvenile Court. For instance, the
court states that on numerous occasions, Mrs. Derzack’s
testimony was contrary to “the undisputable evidence
presented at the hearing” (Slip Op. At 13), and “both
Karen Derzack and Michael Derzack further attempted to
ridicule the court by being coy and evasive when
responding to questions asked during cross-examination.”
(Slip Op. At 16.)® In a separate Opinion in support of the
court's determination, Judge Jaffe also states:
°For example, Mrs. Derzack testified as follows:
35A
Beyond the violations of the Court Orders, | was
astonished by the deceit and boldness exhibited by
both Karen and Michael Derzack during their
testimony at the hearing. Both repeatedly either
flatly denied violating the Orders or claimed a lack
of recollection of the events when faced with
indisputable evidence of the violations.
(Slip Op., Jaffe, J., 4/1/96, p. 5.) Particularly in light of this
adverse credibility determination, we find appellants’ bald
denial that they took the children to New York an
Q.
A.
0 > 9 »
[COUNSEL FOR CYS]: You admit that you failed to
request permission of CYS or this Court to go to
California to tape the Leeza Show?
| do not admit that.
Did you ask permission?
From?
From CYS or this Court to go tape the Leeza show in
California?
No, | do (sic) not.
But yet you don’t consider that a violation of Court
Orders in this case?
| did not violate any Court Order.
(N.T., 12/13/95, p. 113.)
insufficient basis upon which to conclude the that Juvenile
Court abused its discretion.’
TERMINATION OF FAMILY VISITATION
Juvenile Court determined that appellants had
violated the Orders of October 6, 1994, April 12, 1995 and
August 14, 1995 by unilaterally terminating court-ordered
visitation by the children’s mother, siblings, paternal
grandmother and maternal great aunt. In their brief,
appellants concede that “[t]he record reflects that the
Derzacks, at some point in time, did not comply with the
family visitation orders.” (Appeliants’ brief at 33.)
However, they claim “[t]he record also reflects that in
failing to facilitate with visits, the Derzacks were following
” We also note that Juvenile Court “[took] judicial notice of Byron
and Byrae’s appearance on camera on at least three. . televised
talk shows.” (Slip Op. At 12.) Although neither the Opinion nor
the record disclose specifically which talk shows this statement
references, it is clear that none of the shows discussed by the
court originate in Allegheny County. Unless all of the relevant
segments were taped in this county, which appears unlikely and
is not claimed by appellants, the court may well have found
additional violations of the October 5, 1994 Order. At any rate, in
light of appellants’ admission that they travelled with the children
to California to tape “Leeza”, there is no question that appellants
were properly found in contempt of the Order prohibiting such
travel.
37A
their [former] attorney's instructions and his advice that
they were not required to permit visits.” /d. Initially, we
note that our thorough review of the testimony presented
by appellants at the contempt hearings indicates that they
did not raise this “defense” prior to the instant appeal. In
fact, at the December 13, 1995 contempt hearing, Mr.
Derzack testified as follows:
Q. [COUNSEL FOR MARION ELLIS, the
children’s great aunt]: [T]his is part and parcel of
the reason why you and your wife unilaterally
decided not to adhere to the visitation order?
A. | don't think that we ever violated the |
visitation order. |
Q. There hasn't been a visit since August
[1995]; is that correct?
A. | felt that Judge Jaffe had canceled those
visits.
(N.T., 12/13/95, p. 140.) Therefore, rather than claiming
appellants had terminated visitation on the advice of
counsel, Mr. Derzack stated his belief that visitation had
been “canceled”. Appellants have not offered a shred of
evidence either explaining or substantiating this belief.
Mrs. Derzack also testified as to visitation:
38A
ht nceenenmniaiiiiiamnemaaiiial
Q. Mrs. Derzack, you are certainly aware of
the various orders that have been entered by
Judge Jaffe concerning the sibling visits between
Byron and Byrae, are you not?
_ Yes.
Q. In fact, visits occurred up until some point in
August of 1995; is that correct?
A. | don't remember dates, but yes.
Q. Do you intend to allow visits to occur in the
future, or is it your belief that, as you just indicated,
you don't think that Judge Jaffe had the authority
to enter those orders?
A. | can’t speak for the future.
(N.T. at 124-125.) Thus, rather than claiming that she
terminated visitation on the advice of counsel, Mrs.
Derzack defiantly asserted the possibility that she would
disobey future visitation Orders.
As this testimony indicates, appellants’ claim that
they were relying on the advice of counsel in discontinuing
visitation has been raised for the first time on appeal and,
for this reason, we may not consider it. See In re D.D..,
409 Pa. Super. 35, 597 A.2d 648, 654-655 (1991) (“The
issue was not raised and properly preserved on the record
39A
in the Juvenile Court and is thereforje] waived. It cannot
be raised for the first time on appeal.”); Pa.R.A.P. 302
(“Rule 302. Requisites for Reviewable issue (1)
General rule. Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
A party violates court Orders at his peril and we will not
recognize appellants’ tardy attempt to blame former
counsel.® The Orders of October 6, 1994, April 12, 1995
and August 14, 1995 clearly provide for visitation and
appellants admit that they “did not comply” with these
Orders. In light of this admission, and having rejected
appellants’ sole alleged defense, we find no error in
Juvenile Court’s determination that appellants were in
®We note that appellants’ hearing counsel expressly denied that
he directed his clients to disobey the visitation Order. Following
Mrs. Derzack’s statement that she “can’t speak for the future”,
the following exchange occurred:
Q. [JUDGE CRAIG]: Not to give you a hard time, Mr.
Bloom, but your client seems to be saying to me that she
can’t speak to whether she’s going to comply with any
Orders--
A. [APPELLANTS’ COUNSEL]: | understand, but
that would not be my direction to my client, Judge.
40A
contempt of the visitation Orders of October 6, 1994, April
12, 1995 and August 14, 1995.
TERMINATION OF THERAPY AND COUNSELING
Juvenile Court found that “in contravention to [the]
Orders of October 6, 1994 and May 9, 1995, the Derzacks
failed or refused to take the children to a mental health
professional . . .As with the visitation privileges, the
Derzacks cancelled or failed to schedule appointments
with Dr. [Debra] Klosterman between July 1995 and
October 12, 1995.” (Slip Op. At 22.) Despite the court’s
finding that there were no therapy sessions between “July
1995 and October 12, 1995”, appellants claim that
“through their own efforts, [they] scheduled about seven
sessions with Dr. Klosterman through October 12, 1995.”
(Appeliants’ brief at 34.) Once again, the record belies
appellants’ assertion. In fact, at the hearing of December
13, 1995, Mrs. Derzack testified:
Q. [COUNSEL FOR THE CHILDREN]: You were
aware, were you not, that neither Byron nor Byrae
(N.T. at 160.)
41A
was receiving any therapy since this summer at
least?
A. They haven't been since I've not taken them.
Q. And nobody else has had them outside of your
custody that would be taking them either; is that
correct?
A. Correct.
(N.T. at 120.) Thus, despite the present claim to the
contrary, Mrs. Derzack admitted at the hearing of
December 13, 1995 that “neither Byron nor Byrae was
receiving any therapy since [the] summer [of 1995].”
Further, CYS caseworker Timothy Jashinski testified:
Q. [COUNSEL FOR CYS]: [A]t some point did
the Derzacks abruptly terminate the therapy for
Byron and Byrae?
A. Yes. The therapy was terminated after Debbie
Klosterman met with the Law Department.
Q. And why did she meet with the Law
Department?
A. The Law Department wanted to go over what
was necessary for her to accomplish during these
evaluations.
Q. Do you know whether Children & Youth
Services had been Ordered to pay for Dr.
Klosterman?
42A
A. Yes. On this Court Order of May 9" it Orders
CYS to pay.
Q. And you were at that meeting; is that correct,
Mr. Jashinski?
A. With Debbie Klosterman? Yes, | was.
Q. And the purpose of that meeting was to hire
Dr. Klosterman and pay her for her services; is that
correct?
A. Yes.
Q. And you're stating that it was after this meeting
that Mr. And Mrs. Derzack abruptly canceled the
children’s therapy; is that right?
A. Yes.
And was that back sometime in July of 19957?
Yes.
Were they given permission to do this?
To stop the therapy?
To stop the therapy.
No.
Was that a violation of this Court’s Order?
oe ae a oe eC
Yes.
43A
(N.T. at 40-41.) Mr. Jashinski’s testimony, in addition to
the admission of Mrs. Derzack, indicates that appellants
unilaterally terminated court-ordered therapy in July 1995.
This may well have been the most egregious of the
many acts of contempt committed by appellants. At all
times, appellants were fully aware of the extremely
traumatic background of Byron and Byrae. Both
appellants also testified at the hearing of December 13,
1995 that they believed Byrae had been sexually molested
(N.T. at 118 (Mrs. Derzack), 134 (Mr. Derzack)).
Nonetheless, appellants prevented the children from
receiving the professional help they so desperately and
obviously needed.
Finally, although appellants admit that “[n]o visits
were scheduled between mid-October and December”
(appellants’ brief at 35), they attempt to justify this failure
on the basis that they “were extremely uncomfortable with
the situation after CYS had directed Dr. Klosterman to
exclude them as recipients of her reports.” /d. As this
statement indicates, appellants placed their own desires,
44h
and their disdain for CYS, over the needs of the children.
We reiterate that the Legislature has vested Juvenile
Court, rather than appellants, with the ultimate authority to
adjudicate in the best interests of dependent children. It is
simply irrelevant that appellants became “uncomfortable”
with the court's exercise of that authority. Having ignored
this principle, appellants were properly found in contempt
of the Orders of October 6, 1994 and May 9, 1995.
EXPOSURE OF THE CHILDREN TO PUBLICITY
Juvenile Court found that appellants had
repeatedly conducted media interviews and appeared on
national talk shows in violation of the prohibition of the
November 14, 1994 “Gag” Order “that parties are to have
no contact with the public vis a vis discussing or referring
to this case in any public context or forum.” Order,
11/14/94, p. 365b.° Specifically, the court found that
appellants had discussed the case on numerous nationally
televised talk shows, including “Rikki Lake”, “Montel
* This Order was vacated on May 21, 1996, after appeliants lost
custody of the children.
45A
Williams”, “Sally Jesse Raphael” and “Leeza”. (Slip Op. At
23.)
In a pattern of argument which is by now familiar,
appellants claim that they did not violate the Order as
many times as Juvenile Court determined. Specifically,
they claim that taping of the “Rikki Lake’ show preceded
the effective date of the gag Order."® Appellants do not
discuss, and thus do not contest, that they appeared on
the remaining shows cited by Juvenile Court. Instead,
they claim the gag Order is an unconstitutional restriction
on free speech. However, we note that appellants have
never challenged the Order of November 14, 1994 on
appeal, much less within 30 days as required by Pa.R.A.P.
'° Appellants also claim they had the permission of Judge Jaffe
to appear on the “The Maury Povich Show” on October 20, 1994.
In the section of its Opinion setting forth the relevant facts,
Juvenile Court notes that this appearance violated the Order of
January 24, 1994 (Slip Op. At 10), which preceded the gag
Order of November 14, 1994. However, the Order of January
24, 1994 was not one of the eight Orders relied upon by Juvenile
Court to find appellants in contempt of court. Thus, whether or
not appellants violated the Order of January 24, 1994 is
irrelevant to the instant appeal, and we need not consider
appellants’ claim that they had permission to appear on “The
Maury Povich Show.”
46A
fea
903. Further, the issue of constitutionality was raised
neither in a motion to reconsider the Juvenile Court's
contempt Order of January 17, 1996 nor in appellants’
statement of matters complained of on appeal. In fact, our
thorough review of the entire record before us reveals that
the alleged unconstitutionality of the Order of November
14, 1994 was never raised, or even contemplated, at any
stage of this litigation.
At any rate, it is appellants’ responsibility to
demonstrate, with relevant citations to the record, that this
issue has been preserved. For instance, Pa.R.A.P.
2117(c) provides:
Rule 2117. Statement of the Case
(c) Statement of place of raising or preservation
of issues. Where under the applicable law an
issue is not reviewable on appeal unless
raised or preserved below, the statement of
the case shall also specify:
(1) The state of the proceedings in the court
of first instance, and in any appellate court
below, at which, and the manner in which,
the questions sought to be reviewed were
raised.
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(2) The method of raising them (e.g. by a
pleading, by a request to charge and
exceptions, etc.).
(3) The way in which they were passed
upon by the court.
(4) Such pertinent quotations of specific
portions of the record, or summary thereof,
with specific reference to the places in the
record where the matter appears (e.g.
ruling or exceptions thereto, etc.) as will
show that the question was timely and
properly raised below so as to preserve the
question on appeal.
Id. Further, Pa.R.A.P. 2119(e) provides:
Id.
Rule 2119. Argument
(e) Statement of place of raising or preservation
of issues. Where under the applicable law an
issue is not reviewable on appeal unless raised or
preserved below, the argument must set forth, in
immediate connection therewith or in a footnote
thereto, either a specific cross reference to the
page or pages of the statement of the case which
set forth the information relating thereto required
pursuant to Rule 2117(c) (statement of place of
raising or preservation of issues), or substantially
the same information.
~~
In characteristic fashion, appellants make no effort
to comply with the mandate of these rules. Instead, in a
one paragraph argument, they direct our attention to
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Pa.R.C.P. 1930.2(a) (Appellants” reply brief at 4). The
Rule provides:
Rule 1930.2 No Post-Trial Practice. Motions for
Reconsideration
(a) There shall be no motion for post-trial relief
in any domestic relations matter except that where
a paternity matter is tried by jury, post trial practice
shall be permitted in accordance with Rule of Civil
Procedure 227.1.
Id.
From this rule abrogating the need for post-trial
motions in domestic relations matters, appellants
apparently extract the principle that an issue which was
never presented at trial can be advanced on appeal. This
is patently false. See Pa.R.A.P. 302, supra (“Issues not
raised in the lower court are waived and cannot be raised
for the first time on appeal.”); In re D.D., supra at __ , 7
A.2d at 654-655 ("The issue was not raised and properly
preserved on the record in the Juvenile Court and is
therefore waived. It cannot be raised for the first time on
appeal.”); In re Frederick F., 400 Pa. Super. 542 N. 7,
983 A.2d 1248, 1250 n. 7 (1990) (issue not raised in
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Juvenile Court deemed waived on appeal). Rather than
challenging the Order of November 14, 1994 in
compliance with the rules of appellate procedure,
appellants have instead violated it in an arrogant fashion
and now seek to nullify the consequences of the violations
by challenging the constitutionality of the Order for the first
time on appeal. We will not allow such brazen disregard
of court Orders and rules of court. Appellants’ challenge
to the constitutionality of the Order of November 14, 1994
is waived. Commonwealth v. Hawkins, 295 Pa. Super.
429, __ n. 6, 441 A.2d 1308, 1312 n. 6 (1982) (“[I]ssues,
even those of constitutional dimension, cannot be raised
for the first time on appeal[.])."’ In a more fundamental
"’ On several occasions, appellants’ brief refers to a federal
lawsuit, Focus v. Allegheny County Court of Common Pleas,
Civil Action No. 94-2160 {W.D. Pa.), filed on June 7, 1994, by the
appellants’ current counsel, acting for the American Civil
Liberties Union and on behalf of “a community group interested
in juvenile court proceedings” (Appellants brief at 6). Neither
the caption of the case, our review indicates that it was
dismissed by Federal District Court on Eleventh Amendment
grounds and for lack of subject matter jurisdiction. Thereafter,
the Third Circuit Court of Appeals reversed and remanded on
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procedural and jurisdictional grounds. Focus v. Allegheny
County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996).
However, the parties apparently settled the case before remand
proceedings could be held. Thus, Focus’ constitutional
challenge to the gag Orders was never adjudicated.
While the parties agree that the gag Order of November 14,
1994 was vacated on May 21, 1996, they disagree on the import
of the federal litigation. Appellants claim “[t]he November 14,
1994 gag Order was finally vacated on May 21, 1996 as part of
the resolution of the federal lawsuit filed by Focus[.]”
(Appellants’ brief at 10.) Appellee/children claim “[t}he Order in
question was vacated by Judge Jaffe in the Court of Common
Pleas at the request of counsel for the minor children. . .since the
parties who had been guilty of harming the children by relentless
publicity-seeking, namely the Derzacks and to a lesser extent
the family members, were no longer formal parties to the case
since the children had been removed from the Derzacks and the
mother’s parental rights were terminated. Since the Order had
been vacated the federal District Court action was settled, being
moot.” (Appeliee’s brief at 3-4.) Neither Juvenile Court Opinion
discloses whether the Order of November 14, 1994 was vacated
on May 21, 1996 as a result of “the resolution of the federal
lawsuit", or because the issue of publicity was moot, the children
assuming the accuracy of appellants’ contention, we can discern
no relevance of the federal action to the instant appeal. Initially,
the Third Circuit confirmed the fact that “neither party to the Baby
Byron case is on record as being opposed to the gag orders.”
Focus, 75 F.3d at 839. Since the federal action did not involve
the parties to the instant case, it did not preserve appellants’
current challenge to the Order's constitutionality. As noted,
appeliants have violated Rules of Appellate Procedure 302,
2117(c) and 2119(c), relating to the preservation of issues, and
we are aware of no authority, nor do appeliants-cite any,
indicating that a federal lawsuit filed by unrelated plaintiffs can
cure the waiver of an issue by parties to a state proceeding.
Finally, since the federal lawsuit was never resolved on the
merits, we are not confronted by an Order which has been found
by a federal court to violate the United States Constitution.
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manner, it is evident that Rule 1930.2 (relating to post-trial
matters in domestic relations cases), as relied upon by
appellants, does not apply in Juveniis Court proceedings,
which are governed entirely by 42 Pa.C.S. § 6301 ef seq.
See In re Gorham, 272 Pa. Super. 145, 148, 414 A.2d
712, 713 (1979) (“[A] juvenile proceeding is not ‘a matter
subject to the Pennsylvania Rules of Civil Procedure’.”);
and Commonwealth v. Clay, 376 Pa. Super. 425, 429,
546 A.2d 101, 103 (1988) (“[T]}he procedures for post-trial
review contained in the Pennsylvania Rules of Civil
Procedure do not apply to juvenile proceedings unless
specifically provided otherwise.”)."?
As to whether appellants actually violated the
Order of November 14, 1994, the record again reveais
evasive testimony. For instance, Mrs. Derzack testified:
Q. [COUNSEL FOR CYS}: With regard to the Gag
Order, it’s also my understanding that you have
appeared on the Rikki Lake Show, is that correct?
‘2 Although neither the Rules of Civil Procedure nor the Rules of
Criminal Procedure apply to Juvenile Court, the Rules of
Appellate Procedure do apply to appeais from that court, as
indicated by the prior citations.
52A
A. Yes.
Q. And you've appeared on the Monte! Williams
Show, is that correct?
A. Yes.
Q. You admit you appeared on Sally Jesse Raphael,
is that right?
A. Yes.
Q. And you also admit that you've appeared on the
Leeza Show?
oo Yes.
Q. Do you admit hat you violated this Court's Gag
Order with regard to your appearances on Rikki
Lake and Morel Williams and Leeza?
A. Do | admit | viclated them?
Q. Yes.
A. No, | do not.
(N.T. at 111-112.)
Q. Did you talk atout Byron and Byrae on the Leeza
Gibbons Show
A. Yes, in genera.
What did you talk about?
A. | don't rememter specifics.
53A
Q. Do you know in general what you talked about?
A. To be honest with you, no, | do not.
Q. So you don’t remember anything at all that you
said on the Leeza Gibbons show that you just
taped on November 9" [1995]. That what you’re
asking us to believe?
A. | don’t remember.
Q. You don’t remembers whether you remember?
A. | don’t remember anything that | talked about
there.
(N.T. at 123.) Similarly, Mr. Derzack testified as follows:
Q. [COUNSEL FOR THE CHILDREN]: Did you hear
your wife talk about the talk shows that she’s
spoken about during her testimony? Were you
present also?
In some instances.
Which ones were you there for?
Rikki Lake, Montel Williams, and Leeza Gibbons.
Did you appear on camera on any of those shows?
Yes.
Which ones?
All three.
Did you talk about Byron and Byrae on any of
those shows?
2 > 9 > © > CE >
544
A. The Montel Williams show, no. The Rikki Lake, it
was several years ago. On the Leeza Gibbons
show, | don't recall mentioning their names.
Q. Did you talk about them?
A. | really don’t recall lights, cameras.
(N.T. at 135.) Therefore, although “Leeza” was taped less
than five weeks prior to the December 13, 1995 hearing,
neither appellant could recall anything that was discussed.
Nonetheless, despite a final attempt at evasion, Mr.
Derzack ultimately relented:
Q. [COUNSEL FOR THE CHILDREN]: Have you
violated the Court's prohibition against referring to
or discussing the case in any public forum?
A. | don’t know how to best answer that, other than to
say—
Q. Try yes or no.
There's nothing in between? If you read it by the
letter of the law and if that law is enforceable, then,
(N.T. at 137.)
In light of this admission, and our rejection of
appeliants’ attack upon the constitutionality of the “gag”
Order, it is clear the Juvenile Court was correct in finding
that appellants had repeatedly violated the Order.
TERMINATION OF CYS VISITATION
Juvenile Court found that appellants had violated
the Orders of May 9 and October 13, 1995 by refusing to
permit announced and unannounced visits by CYS."* At
the December 13, 1995 contempt hearing, CYS
caseworker Timothy Jashinski testified as follows:
Q. [COUNSEL FOR CYS}: Just to clarify, up until
around August of 1995 you were making regular
visits; is that right?
A. Yes.
Q. And then for some reason during this particular
time in August and then in September [appellants]
stated they were in loco parentis and that you
weren't allowed to visit; is that right?
A. Right.
(N.T. at 15.)
Q. Did you attempt to visit the Derzack residence after
the issuance of the October 13, 1995 Order?
*. The Order of October 13, 1995, which reaffirmed the mandate
of the Order of May 9, 1995, was entered in response to a
contempt petition filed by CYS after appellants failed to comply
with the former Order.
56A
Se erereeeeeeeneneeeeeenes
A. Yes, | did.
Q. Was Mrs. Derzack friendly to you when you came
to the door?
A. | wouldn't say friendly, no.
Q. So she ushered you in, and then what happened?
A. | was at the bottom in the entrance of the house. |
said hello to the kids. The kids said hi to me. |
asked them how they were doing. They said fine.
Then | proceeded—Mr. Derzack had mentioned
something about them going to a Halloween party,
So | just asked them, you know, if they were ready
for trick or treating or what they were going to be,
and then Mrs. Derzack abruptly ended the visit.
(N.T. at 17-18.)
As with their claim regarding family visitation,
appellants claim they terminated CYS visitation “Only after
their [former] attorney advised them that they were in loco
parentis and that visits were no longer permitted.”
(Appeliants’ brief at 34.) Once again, this claim is contrary
to the hearing testimony and is presented for the first time
on appeal. For instance, Mrs. Derzack testified as follows:
Q. [COUNSEL FOR CYS]: You admit that you
Pa refused to alow Mr. Jashinski access to Byron and
Byrae?
No.
You’re denying that?
Yes.
Pcr *?
You deny that you ordered Mr. Jashinski from your
home on October 27, 1995?
a | deny that.
Q. Going back to Mr. Jashinski's visits, do you deny
that you violated this Court’s Order with regard to
those visits?
A. | did not go against the Court Order. | deny that.
(N.T. at 111).
As this testimony indicates, rather than claiming
appellants violated the Orders of May 9 and October 13,
1995 on the advice of counsel, Mrs. Derzack flatly denied
that she refused visitation or violated the Orders."* As
os”
“Mrs. Derzack did, however, question the authority of Juvenile
Court to order visitation. She testified:
58A
ee
such, Mrs. Derzack’s testimony directly contradicted that
of Mr. Jashinski and the credibility of these witnesses was
a matter for Juvenile Court, as finder of fact.
Commonwealth v. Lawson, 437 Pa. Super. 521, 650
A.2d 876 (1994), appeal denied, 540 Pa. 596, 655 A.2d
985 (1995). Particularly in light of the express finding that
appellants’ testimony was incredible, we find no error in
the court’s decision to credit Mr. Jashinski’s testimony.
Accordingly, we perceive no abuse of discretion in
Juvenile Court's conclusion that appellants violated the
visitation Orders of May 9 and October 13, 1995.
REFUSAL TO CORRECT ADOPTION APPLICATION
Q. [COUNSEL FOR CYS]: [Does [Judge Jaffe] have the
right to Order Mr. Jashinski to visit your home to interview Byron
and Byrae?
A. | don’t know.
Q. So | guess what you're saying is you don’t know whether
Judge Jaffee has the right to enter any Order in this case; is that
right?
A. | don’t know.
(N.T., 12/13/95, p. 114.)
S9A
Finally, Juvenile Court determined that appellants
had violated the Order of July 14, 1995, which required
that they correct the adoption/foster care application and
adoption petition to reflect Mrs. Derzack’s previous :
psychiatric history and provide proof of annual income for
the previous five years. The court based this
determination on the following facts:
Both the foster care application and the adoption
application specially requested psychological and
financial information. This information gives
important insight into the prospective foster care
and adoptive parents’ emotional and financial
ability to maintain the child being entrusted to their
care and must be answered truthfully, if the best
interest of the child is to be served. In response to
these two specific questions on the adoption
application filed by the Derzacks in August 1994,
Karen Derzack responded “no” to the question
addressing prior mental health treatment when, in
fact, she had suffered from depression and a
mental disorder which required professional
treatment. Additionally, Michael Derzack listed
their annual income as $168,000.00 when, in fact,
his income tax statements reflected an income of
$102,736.41 for a three year period extending from
1990-1993.
(Slip Op. At 25.)
As to their failures to comply with the Order of July
15, 1995, appellants present several characteristic
60A
arguments. Initially, they claim the Order “simply does not
say what the Court claims in attempting to justify its
removal Order.” (Appeliants’ brief at 32.) Appellants also
claim “[t]he order does not indicate who it is directed to
and it neither mentions the adoption papers nor the
Derzacks’ income.” Id. The Order of July 14, 1995
provides in relevant part:
Attempt correction by amended petition through
me after correspondence between parties.
Order, 7/14/95, R. 372(b). Appellants are correct that this
Order does not expressly mention them by name.
However, since it was appellants who filed the original
petition for adoption, we wonder who they believed the
court was directing to file an amended petition. Further,
since Mrs. Derzack’s mental health history was the subject
of the hearing which immediately preceded the Order,
appellants’ plea of ignorance as to the information to be
“amended” is characteristically disingenuous. Once again,
rather than seeking to clarify their alleged confusion
before the court, appellants blatantly violated a valid court
61A
Order and now seek to avoid the consequences of that
violation by pleading ignorance. We will not countenance
such evasion.
Appellants also seek to excuse their admitted
misrepresentation as to Mrs. Derzack’s mental health
history by arguing that she had disclosed this history in a
hearing otae to the placement of the children in their
home. Thus, according to appellants, “the lower court and
CYS were well aware of the discrepancy between the
adoption application and Ms. Derzack's actual medical
history[.]” (Appellants’ brief at 31.) Appellants’ argument
fails. Merely because the court ultimately was informed of
appellants’ misrepresentation, it does not follow that
appellants are somehow excused from the consequences
of that misrepresentation. Similarly, the fact that Mrs.
Derzack misrepresented her medical history on only one
of the two occasions it was addressed does not nullify the
misrepresentation. At any rate, appellants were not held
in contempt for making the misrepresentation. Rather,
they were held in contempt for disobeying a court Order to
62A
correct the misrepresentation. Therefore, the question at
issue is whether appellants complied with the mandate of
the July 15, 1995 Order that they correct their adoption
petition, and the record clearly indicates that they did not.
In fact, at no point have appellants claimed otherwise.
As to their failure to correct the income reported on
the application form, appellants attack Juvenile Court's
reliance on their federal income tax returns, because “it is
just as likely, from the evidence of record, that the
Derzacks told the truth on the adoption papers and
engaged in loose accounting methods for tax purposes.”
(Appellants’ brief at 32.) Thus, according to appellants,
Juvenile Court erred in finding appellants in contempt of
the July 15, 1995 Order because it was unable to tell on
which sworn document appellants lied. Initially, we
ohana that the overriding concern of Juvenile Court, in
considering the best interests of dependent children, is the
fitness of adoptive parents. Of course, untruthfulness in
any form must be considered by the court, and it is
irrelevant which of the two documents at issue manifests a
63A
lie by appellants. Moreover, when presented with an
opportunity to clarify his misstated income, Mr. Derzack
testified as follows:
Q. [COUNSEL FOR CYS]: With regard to the
information about the yearly income, now, you
filled this [adoption] application out in August of
1994; is that correct?
A. Yes.
Q. Those are your signatures; is that correct
[indicating]? ?
A. Yes.
Q. When you indicate yearly income of $168,000.00,
that’s for the year 1994?
A. On the advice of counsel, I’m going to refuse to
answer that.
(N.T. at 128-129.) Mr. Derzack was then properly
informed by the court that, in a civil proceeding, a negative
inference may be drawn when a witness invokes the Fifth
Amendment privilege against self-incrimination (N.T. at
129). See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct.
1551, 47 L.Ed.2d 810 (1976) (“our conclusion is consistent
with the prevailing rule that the Fifth Amendment does not
64A
ne
forbid adverse inferences against parties to civil actions
when they refuse to testify in response to probative
evidence offered against them: the Amendment ‘does not
preclude the inference where the privilege is claimed bya
party to a civil cause.’ 8. J. Wigmore, Evidence 439
(McNaughton rev 1961)”.). Despite the court’s warning,
Mr. Derzack again invoked the privilege.
Q. Isn't it true, Mr. Derzack, that with regard to
this yearly income figure, whether it be—assuming
it's 1994 or whatever year—that you gave the
Internal Revenue Service different figures for your
same income?
A. Once again, on the advice of counsel, I’m
going to refuse to answer that and invoke my Fifth
Amendment privilege.
(N.T. at 129-130.) Thereafter, Juvenile Court, whose role
it was to determine the credibility of witnesses, found that
appellants had misstated their income on the adoption
application. Appellants do not contest that they never
corrected the improper income figure, as mandated by
court Order. On this basis, we find no abuse of discretion
in the court’s conclusion that appellants violated the Order
of July 14, 1995.
65A
As this review indicates, it is appellants, rather than
Juvenile Court, who seek to distort the record presented
below. Viewed accurately, the record clearly reveals that
appellants have cavalierly violated each and every Order
cited by Juvenile Court, and the contempt citations
therefore were proper. However, it does not necessarily
follow that even repeated and blatant violations of
numerous court Orders should result in removal of the
children from appellants’ care. As Judge Baer stated at
the conclusion of the January 17, 1996 hearing, “We need
to have a thick skin here. We're not going to use these
children to punish these adults.” (N.T. at 152.) Thus,
consistent with our primary concern, the best interests of
Byron and Byrae Griffin, we must consider whether
removal was warranted under the facts of this case. We
find that it was.
Our conclusion turns on the nature of the
contempts committed by appellants. Had appellants’
conduct, no matter how defiant, been directed solely at the
court, with no resulting impact on the children, we would
66A
be loathe to sanction removal. Simply put, removal is not
an appropriate contempt sanction. A fine or even
incarceration might well be more appropriate, so long as
the children’s best interests were thereby served.
However appellants’ conduct in the instant case has
repeatedly and adversely affected the overall welfare of he
children. Accordingly, we find that removal served the
best interests of the children, and was not ordered as a
contempt sanction.
Initially, appellants’ decisions to take the children
out of Allegheny County without notifying CYS and the
court, and to unilaterally cancel visitation by CYS
caseworker Jashinski, potentially placed the children at
risk. At the contempt hearing of December 13, 1995, Mr.
Jashinski testified in detail as to the importance of knowing
the children’s location at all times:
Q. [COUNSEL FOR CYS]: And one thing about
leaving the jurisdiction, Mr. Jashinski. Can you tell
us why it’s important for foster parents or potential
adoptive parents to notify CYS or the Court about
leaving the jurisdiction?
67A
O
9 > OD >
Well, in case of an emergency, we need to know
where to get in touch with the people. In case
something happens to the kids why they are out of
the country, we need to know that, in fact, they
were there so that they can get appropriate help.
Is CYS also responsible for making any medical
decisions for these children?
Yes. Yes, they do.
As a dependent child?
As a dependent child, yes.
So it’s fair to say that if something happened to
Byron and Byrae out in California, you would need
to know that so that you could, in fact—so CYS
could, in fact determine medical treatment and
what would be appropriate; isn’t that correct?
Right. We would have to consent to any treatment
that would be given to them.
And if you don’t know where they are, you can't
consent, can you?
No.
And also with regard to leaving the jurisdiction
when you talk about emergencies, would you want
to know where Byron and Byrae are at all times
with regard to their natural family in any
emergencies there and with regard to their siblings
or their aunts or uncles or natural mother?
Well, yes. It would be important to know where to
contact the family to pass on that information.
68A
(N.T. at 50-52.) Further Juvenile Court explained:
CYS, as agent for the court, placed Byron and
Byrae into the care and custody of the Derzacks.
Legal custody of the children, however, remained
with CYS and the court and, as such, CYS as, at
all times, ultimately responsible for the welfare of
Byron and Byrae. This responsibility included a
duty to monitor the Derzacks’ treatment of the
children and the children’s adjustment to the
Derzacks and their home environment. Monitoring
was absolutely necessary in order for CYS to
assure the Court that Byron and Byrae were (1)
Safe, (2) provided for and (3) free of issues that
needed to be addressed.
(Slip Op. at 20.)
By removing the children from Allegheny County
without consent and by refusing to allow visitation with Mr.
Jashinski, appellants effectively precluded supervision by
CYS and the court, the authorities ultimately charged with
ensuring the welfare of Byron and Byrae. Clearly, by
preventing such supervision, appellants placed the
children at risk and thus adversely affected their best
interests.
Similarly, appellants’ refusal to allow family and
sibling visitation was not in the best interests of the
children. As Juvenile Court explained:
69A
The Court Orders [requiring visitation] were
based upon Byron and Byrae’s psychological bond
with these relatives and the harm that would occur,
if the children were separated from them.
The Court believed regular, private, visits with
family members to be so important to the heathy
development of Byron and Byrae that it also
ordered the rescheduling of any visit which had not
occurred on the regularly scheduled date.
(Slip Op. at 21.) Appellants’ refusal to allow visits by the
children’s mother, siblings, paternal grandmother and
maternal great aunt operated to deprive the children of
any contact with their biological family. No expert
testimony is necessary to establish that such a deprivation
can be harmful. Nonetheless, the court had before it the
testimony of Dr. Patricia A. Piercy, Ph.D., a child
psychologist, who stated:
[I]f the Court decides that the Derzacks should
have the children, then | would strongly
recommend that there are some resources
available for Mrs. Ellis and her family. It would put
a tremendous stress on them and on the children
in that family. . .1 think consideration should also be
given to the sibling contact which had been the
sibling relationship, the relationship between all five
siblings, and that contact [should] be preserved in
some way.
70A
aT
sh SEO EAE ACL ISITE BREE
(N.T., 10/5/94, p. 25.) Accordingly, appellants’ termination
of family visitation did not serve the best interests of the
children.
Likewise, as to appellants’ repeated exposure of
the children to intense publicity, Juvenile Court had before
it extensive testimony from several witnesses that such
exposure was harmful. For instance, Mr. Jashinski
testified:
Q. [COUNSEL FOR CYS]: Mr. Jashinski, do you
have concerns about Byron and Byrae being
exposed to the public?
A. Yes. It’s always certainly a concern to have
children exposed to any type of unwarranted
publicity. | mean, the damages that can be done
are extremely exorbitant.
(N.T., 10/5/94, p. 173.) Moreover, testimony is not
required to establish the likelihood that the public
dissemination of the children’s difficult background, as well
as the drug use of their parents, is extremely harmful.
There can be no question that appellants’ repeated
exposure of every aspect of this case to any media outlet
available was not in the best interests of the children.
71A
As noted supra, the decision of the Derzacks which
possibly caused the greatest harm to the children was the
termination of court-ordered counseling and therapy. As
the court found:
The record of the trauma imposed upon Byron
and Byrae from birth indicated that therapy and
counseling were necessary to maximize the
children’s chances for growing up to be normal
functioning adults, free of trauma and mental
disease. So critical was the need for the children
to receive therapy, that the Court entered two
Orders mandating therapy with Dr. Debra
Klosterman for Byron and Byrae, with the expense
of the therapy being paid by the Commonwealth.
(Slip Op. at 22.) Additionally, as noted, both appellants
were aware that Byrae had been sexually abused.
Nonetheless, they unilaterally decided to terminate court-
ordered counseling thereby placing their distrust of CYS
over the needs of Byron and Byrae. Once again, it is clear
tha appellants’ conduct in preventing desperately-needed
professional care impacted negatively the best interests of
the children.
Finally, as to appellants’ failure to correct false
information on the adoption application, the court found:
72A
The information contained in the Derzacks’
application for consideration as a foster care family
was one of the important factors used in selecting
them as foster care parents for Byron.
This information gives important insight into the
prospective foster care and adoptive parents’
emotional and financial ability to maintain the child
being entrusted to their care and must be
answered truthfully, if the best interest of the child
is to be served.
(Slip Op. at 28.) By misrepresenting mental health history
and income, appellants placed the children at risk by
failing to disclose factors which might notify CYS or the
court that appellants were unable to provide sufficient
emotional or financial support for the children. We
reiterate that the court and CYS are ultimately responsible
for the welfare of dependent children, and by lying to
those authorities appellants acted contrary to the best
interests of Byron and Byrae. As the court found,
“providing false information relates directly, not only to the
Derzacks’ credibility, but also their fitness to serve as
adoptive parents [and therefore] the Derzacks do not meet
the standard of fitness with regard to honesty and integrity
73A
required . . .to qualify them as adoptive parents.” (Slip Op.
at 28.)
Since the conduct underlying the contempt
citations adversely affected the best interests of the
children, we agree with Juvenile Court that removal was
warranted. Other factors also indicate that the best
interests of the children are served by the removal Order.
For instance, testimony of two police officers presented at
the January 17, 1996 hearing revealed that Karen
Derzack requested police assistance to locate her
husband on two occasions. On both occasions Mrs.
Derzack expressed her concern that Mr. Derzack, who left
his residence in a vehicle, was intoxicated and suffering
from stress. (N.T., 1/17/96, pp. 32, 40). On the former
occasion, Mr. Derzack did not return for more than two
days (N.T. at 33). Further, the record reveals that on
December 12, 1995, one day before the instant contempt
proceeding, the Derzacks filed for personal bankruptcy
claiming debts in excess of $540,000. This information,
although not conclusive, provides additional support for
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Juvenile Court's finding that appellants are unable, either
emotionally or financially, to adequately care for the
children. Hence, we find no abuse of discretion in the
January 17, 1996 Order of Juvenile Court removing the
children from the custody of appellants.
In closing, we note the following testimony of Mr.
Derzack:
Q. [COUNSEL FOR THE CHILDREN]: In fact, you
made some statements that when you believe that
it was necessary or appropriate to disobey the
Court order, you would do so; is that accurate?
A. Within the best interest of the children, yes.
(N.T., 10/5/94, p. 171.) For reasons that remain a
mystery, this willingness to challenge not only the
propriety of numerous court Orders, but also the authority
of Juvenile Court to enter those Orders, became the
mantra of appellants’ strategy throughout the latter states
of this case. Having voluntarily initiated the adoption
process, appellants thereafter defiantly and repeatedly
refused to abide by the rules of that process.
Unfortunately, in waging their battle against CYS and
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Juvenile Court, appellants lost sight of the needs of the
children. On the record before us, we are unwilling to risk
the possibility that appellants would do so again. The
stakes are simply too high.
Based on all of the foregoing, we find that Juvenile
Court had no choice but to order removal and alternative
placement in an environment that will, at long last, serve
the best interests of Byron and Byrae Griffin."®
‘We note that policy issues regarding interracial adoption and
the concept of permanency planning are interlaced throughout
the management of this case by CYS and Juvenile Court.
However, these issues have not been considered herein since
they are irrelevant to the resolution of this case.
76A
i ccenemeneinemenmneiiintiiaiaaaiaiiiiid
IN THE COURT OF COMMON PLEAS
OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION - JUVENILE SECTION
HISTORY NO. 34333 A-E
DOCKET NOS. 1608-92
2622-25-91
IN RE:
BYRON TODD GRIFFIN a/k/a
BYRON TODD JEFFREY and
BYRAE LAFAY GRIFFIN a/k/a
BYRAE LAFAY JEFFREY,
Minors
OPINION
CRAIG, C.
This matter is before the Court on a Petition for
Contempt, as amended, filed by Children and Youth
Services Agency of Allegheny County (hereinafter, “CYS’)
against Karen Derzack and Michael Derzack (hereinafter,
“the Derzacks”), the proposed adoptive parents of Byron
Todd Griffin a/k/a Byron Todd Jeffrey (hereinafter,
“Byron”) and his sister, Byrae Lafay Griffin (hereinafter,
“Byrae”).
On December 13, 1995 and January 17, 1996, this
Court held en banc hearings to determine whether or not
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the Derzacks had violated any or all of eight Orders,
entered by the Court from October 5, 1994 to October 13,
1995, which gave specific directives concerning the care
and protection of Byron and Byrae. Transcript citations
refer to the transcribed notes of the December 13, 1995
hearing.
Byron and Byrae were born into an untenable
environment, controlled by drugs and neglect. This
environment threatened their survival. When this Court
found that Mother could not protect her children because
she could not or would not correct the problems creating
their life-threatening environment, the children were
adjudicated dependent and Mother's parental rights were
terminated. Byrae was temporarily placed with her
paternal grandmother at four months of age. Byron, born
seven months after Byrae’s placement with their paternal
grandmother, was temporarily placed with the Derzacks at
six days of age. After three placements each, Byron and
Byrae were placed together with the Derzacks for the
purpose of adoption. Over a period of one year, extending
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from the date of final placement of the children with the
Derzacks for the purpose of adoption and the date of filing
of CYS’ petition for Contempt naming the Derzacks as
defendants, this Court entered eight Orders that related
directly to the protection, care, welfare or best interest of
Byron and Byrae. This Court found the Derzacks in
contempt of Court, having failed or refused to comply with
all eight Orders. The Derzacks’ application for adoption
was denied and Byron and Byrae were placed with
another family for the purpose of adoption. The relevant
facts are as follows:
FACTS
Byrae was born drug addicted, on July 30, 1991, to
LaShawn Jeffrey (hereinafter “Mother”) and Todd Griffin.
Approximately one year later, on November 30, 1992, four
months after Byron’s birth, Todd Griffin died in an
automobile accident. Byron and Byrae have three older
siblings (brothers) who are the natural children of Mother,
but have different fathers. Byron is the youngest of
Mother’s five children.
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Byrae first came to the attention of this Court in
November 1991. Byrae, then three months of age, drug
addicted and weighing only seven pounds, six ounces,
was removed from Mother’s care and taken by
paramedics to Children’s Hospital where she was
diagnosed as suffering from severe malnutrition,
dehydration and a severe skin infection. Children’s
Hospital reported Byrae to be “near death” when admitted.
Following a hospitalization of one week, the matter
of Byrae and her three older siblings was brought before
this Court pursuant to a Petition for Dependency filed by
CYS. On November 21, 1991, Byrae and her three older
brothers were adjudicated dependent. Byrae remained
hospitalized unable to be brought to Court on the day of
adjudication. Her older siblings were present in Court and
were removed that day by CYS from Mother's custody
with Mother’s consent, pursuant to Mother's
acknowledgment that she was unable to care for her
children because of a chronic drug dependency. Upon her
discharge from Children’s Hospital, Byrae was placed by
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CYS into the care and custody of her paternal
grandmother, Flora Griffin Shapiro. Byrae remained in the
home of Flora Griffin Sharpiro for the next eighteen
months.
Between the period of November 19971 to July 15,
1992, this Court held several hearings regarding the
welfare of Mother’s children wherein evidence of the
severe nature and extent of the neglect suffered by Byrae
and her olider siblings was placed on the record. Based
upon the serious nature of the information contained in the
record, Byron's special health needs at birth as a result of
his drug-addiction and Mother's abandonment of Byron
when she failed to return to the hospital to take him home
following his birth, CYS immediately filed a Petition for
Dependency, with respect to Byron, within days of his
birth. This Court entered an Order on July 27, 1992
adjudicating Byron a dependent child. For purposes of
placement, Byron was designated a “child in need of
special care”.
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Initially, CYS sought placement of Byron with
relatives. When efforts to place him with relatives failed,
CYS selected and approved the Derzacks, a foster care
family with Family Services of Western Pennsylvania
(hereafter, “Family Services”), as a special needs care
family, for the singular purpose of accepting placement of
Byron for a temporary period of time after his discharge
from the hospital. The original understanding between
CYS and the Derzacks was that Byron was being placed
with the Derzacks for a few days, pending the outcome of
the CYS’ petition for Dependency which had been filed on
Byron’s behalf. Byron was placed with the Derzacks on
July 21, 1992. On the date of his first placement, Byron
was six days old.
Following the dependency adjudication, CYS
returned Byron to the Derzacks’ home while an adoption
plan was being developed. Byron’s original adoption plan
was being developed under a new CYS policy which had
been adopted on May 15, 1992 by CYS and captioned,
“Children and Youth Services Transracial Placement
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Policy” (hereafter “transracial placement policy”). The
transracial placement policy was an internal policy which
grew out of a national concern for African-American
children being displaced in white homes and the impact of
such placements on their lives. This policy was drafted by
a CYS committee chaired by Mary C. Young, then the
Recruitment and Placement Resources Manager for
Children and Youth Services. As a matter of routine, draft
copies of the transracial placement policy were circulated
within the agency and the Court for review. On or about
February 14, 1991, the Honorable Cheryl Allen Craig, a
young, newly-appointed judge in the throes of her first
election, received a courtesy copy of CYS’ transracial
placement policy to review. In the cover letter
accompanying the draft of CYS’ transracial placement
policy, Ms. Young requested feedback from Judge Craig
regarding CYS’: (1) rationale for the policy, (2) limitations
placed on how long a child could wait to be placed in an
adoptive home of the same ethnic background, (3)
position regarding children of mixed parentage and (4)
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position regarding permanency. The last paragraph of
Ms. Young’s letter of February 13, 1991 read: “We would
greatly appreciate your responses on this matter, if it will
be of no conflict of interest in your present capacity.
Please call me if you have any questions and/or advice on
this subject.” Ms. Young was deposed by counsel for the
Derzacks on March 2, 1995. When asked, “Do you know
if Judge Craig responded to this letter?”, Ms. Young
Testified, “She did not”. Although Byron and the
Derzacks’ case fell under CYS’ transracial adoption policy,
Byron’s status in the Derzacks’ home remained
uninterrupted for five months while CYS completed his
adoption plan and identified an African-American pre-
adoptive home.
By letter dated December 15, 1992, CYS advised
the Derzacks that a pre-adoptive home had been found for
Byron and that a representative of CYS would arrive at the
Derzacks’ home on December 16, 1992 to take him away.
The Derzacks responded to the CYS letter by notifying the
news media to come to their home to film their planned
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confrontation with CYS. To avoid a confrontation with the
Derzacks and trauma to Byron, CYS left Byron in the
Derzacks’ home and petitioned the Court that day for an
immediate hearing to resolve the impasse. A hearing on
CYS’ petition was held before this Court on the following
day, December 17, 1992.
At the hearing held December 17, 1992, this Court
specifically addressed CYS’ internal transracial placement
policy and determined that CYS’ selection of an African-
American pre-adoptive home for Byron, solely on the
basis of color was not in the best interest of the child.
Consequently, this Court overruled CYS’ internal
transracial placement policy and entered an Order
continuing Byron’s placement with the Derzacks. This
Court further ordered CYS to assist the Derzacks in
adopting Byron, thus rendering moot, the issue of
transracial adoption with respect to the Derzacks, this
Court having found in favor of the Derzacks when Byron
was returned to them, for the purpose of adoption, in
December 1992.
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With the exception of giving birth to Byron on July
15, 1992, Mother remained absent from and uninvolved in
- the rearing of Byron and Byrae from November 1991 until
January 1993. On or about January 1993, Mother visited
with Byrae, who was then living with her paternal
grandmother, and attempted to reestablish a mother-child
relationship with Byrae, for the first time since the child’s
dependency adjudication in November 1991. No attempt
was made by Mother to visit with Byron, at this time. The
Court, therefore, returned Byron to the Derzacks, following
a review hearing held on March 12, 1993. Dr. Patricia
Piercy was appointed to conduct psychological
evaluations of Byron and to monitor and evaluate his
adjustment to living with the Derzack family.
In late March 1993, Mother contacted CYS and, for
the first time since his birth, requested to visit with Byron.
Although still drug dependent, Mother advised CYS the
she had completed a twenty-eight day program in
Meadeville, Pennsylvania and desired to find placement in
a longer term drug rehabilitation program with the hope
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that she could eventually regain Custody of her children.
Subsequently, Mother was accepted into an inpatient drug
rehabilitation program at the Sojourner House in
Pittsburgh, Pennsylvania. Her official entry date into the
program was April 6, 1993.
Based upon Mother’s success at Sojourner House,
this Court entered an Order on June 25, 1993 reuniting
Mother and Byrae. Byrae was removed from the home of
her paternal grandmother and sent to live with Mother and
Byrae at Sojourner House. On December 20, 1993,
based upon progress shown in Mother’s treatment in her
drug rehabilitation program and her desire to be reunited
with her youngest child, thie Court ordered that Byron be
sent to live with Mother ar Byrae at Sojourner House.
The Order included a stipulation that in the event that
Byron needed “respite, shelter or temporary care”, the
Derzacks should provide it.
On December 21, 1993, the Derzacks issued a
news release criticizing Mother. After the news release,
the Derzacks contacted the news media and invited them
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to be in attendance at their home to film and report
Byron’s removal. Even though CYS attempted to avoid
additional media exposure to Byron by changing the
removal date from December 28th to December 27", the
Derzacks were successful in creating another media
spectacle of the event. In spite of the media spectacle,
Byron was removed from the Derzacks’ home on
December 27, 1993, pursuant to this Court’s Order of
December 20, 1993.
On January 24, 1994, this Court issued an Order
prohibiting the discussion of Byron in public by anyone
involved in any capacity with Byron’s care and granted the
Derzacks permission to visit with Byron four hours a
month. This Court was advised on or about February
1994 that the Derzacks had ignored the January 24, 1994
court Order and had hired a writer with whom they
intended to co-write a book about Byron entitled, “Bird
Without Feathers”. “Bird Without Feathers” was
subsequently written and published.
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Mother, Byrae and Byron lived together at
Sojourner House until April 1994. In April 1994, Mother
was released from Sojourner House and entered a relapse
prevention program known as the Penn Free Program
with Byron and Byrae. The Penn Free Program is
designed to assist chemically dependent individuals in
making the transition from a structured rehabilitation
program to independent living in the community. On April
20, 1994, the Derzacks’ visitation privileges, as to Byron,
were terminated when Michael Derzack spoke to the
media in violation of this Court's January 1994 Order
prohibiting the discussion of Byron in public. In spite of
the Court's termination of their visitation privileges, the
Derzacks continued to place Byron’s case before the
public, in complete disregard for the Order of Court
prohibiting such behavior.
In spite of the intensive assistance provided by the
Penn Free Program and the Right Start Program, an in-
home parenting service provided to Mother four days a
week by CYS, mother renewed her drug use in June
1994.
On June 28, 1994, Byron and Byrae were removed
from the custody and care of Mother when the Court
received evidence that Mother was again using crack
cocaine. By Order of Court, as a temporary measure until
further order of court, Byron and Byrae were placed with
their older siblings in the home of their maternal great
aunt, Marion Ellis. This was the third placement family for
both Byron and Byrae.
On July 5, 1994, this Court reviewed Byron’s and
Byrae’s temporary placement with Marion Ellis. At this
hearing, the Court ordered the continued temporary
placement of Byron and Byrae with Marion Ellis and
interactional and developmental evaluations of Mother and
all of her five children. Mother was also granted unlimited
supervised visits with Byron and Byrae based upon her
renewed active participation in the Penn Free Program. In
spite of the efforts of the Court and CYS to assist Mother
in every way possible to maintain a relationship with Byron
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and Byrae, Mother resumed her drug use within two
weeks of issuance of the July 5, 1994 Order of Court.
Consequently, this Court granted a Petition to intervene
filed by the Derzacks and directed CYS to file a petition to
terminate Mother's parental rights as to Byron and Byrae
within ninety days. Interactional and developmental
evaluations of Marion Ellis, the Derzacks, Byron and
Byrae were ordered by the Court.
Byron and Byrae remained in the care and custody
of Marion Ellis until October 6, 1994. During the time that
Byron lived with Marion Ellis, he continued to visit with the
Derzacks. Based upon the recommendations set forth in
the interactional and developmental evaluations and upon
Marion Ellis’ health and surrogate responsibilities with
regard to Mother's three older children, this Court
determined that it was in the best interest of Byron and
Byrae to be placed with the Derzacks for the purpose of
adoption.
In preparation for what was hoped to be Byron and
Byrae’s last placement into the care and custody of the
Derzacks to await completion of the Derzacks’ adoption
plan, this Court entered an Order on October 5, 1994
which incorporated dependency restrictions and foster
care regulations. The dependency restrictions and foster
care regulations clearly stated that written consent from
CYS or an Order of Court was needed for the Derzacks to
travel outside of Allegheny County with Byron and Byrae.
This Order was later ignored by the Derzacks when they
travelled with Byron and Byrae to California and New York
to tape several nasionally televised talk shows discussing
the children without written consent from CYS or this
Court.
On October 6, 1994, this Court ordered that both
Byron and Byrae be immediately placed with the Derzacks
as an adoptive foster care placement and, inter alia, that
supervised visitation privileges be granted to Byron and
Byrae’s Mother, paternal grandmother and three older
siblings. Two weeks later, on October 20, 1994, the
Derzacks appeared in The Maury Povich Show, a
nationally televised talk show, discussing Byron and his
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case, in violation of this Court’s Order of January 24,
1994. In response, the child advocate representing the
interests of Byron and Byrae petitioned this Court to find
the Derzacks in contempt of court for violation of its Order
of January 24, 1994. On November 14, 1994, this Court
entered a second Order prohibiting all parties from
exposing Byron and Byrae to the public vis-a-vis
discussions or references.
On April 12, 1995, this Court heard CYS’ petition
to involuntarily terminate Mother's Parental rights and
entered supplemental orders which modified this Court’s
October 6, 1994 Order by (1) granting visitation rights to
additional relatives of Byron and Byrae, (2) providing a
time certain for Byron and Byrae’s great aunt, paternal
grandmother and siblings to visit with the children and (3)
reaffirming its November 14, 1994 Order that all parties
refrain from public discussion or reference to the children.
At the Derzacks’ contempt hearing held December
13, 1995 before the court en banc, Timothy Jashinski, an
adoption caseworker for CYS, testified that the Derzacks
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initially permitted Byron’s and Byrae’s great aunt, paternal
grandmother and siblings to visit the children upon request
for several months, in compliance with this Court’s Orders.
Then, shortly after learning of CYS’ petition for termination
of the parental rights of Mother, the Derzacks began to
refuse to allow Byron and Byrae to visits with their
relatives and siblings unless they (the Derzacks) were
permitted to be a part of the visits. (Tr.30, 103). Timothy
Jashinski testified that the Derzacks unilaterally terminated
Byron and Byrae’s visits with their relatives and siblings, in
August 1995, stating to CYS that their attorney had told
them that they had been “granted” or “appointed” in loco
parentis, they repeatedly used the term to justify their
refusal to obey any and all Court Orders issued after April
1995.
On May 9, 1995, this Court entered an Order
directing CYS to comply with this Court's Order of October
6, 1994, with respect to family member visitations with the
children. The Order of May 9, 1995 further directed CYS
to arrange for professional therapeutic intervention,
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consultations and evaluation of Byron and Byrae.
Additionally, the CYS caseworker was ordered to make
announced and unannounced visits at the home of the
Derzacks. In May 1995, Dr. Debra Klosterman, was under
contract with CYS to observe Byron and Byrae’s
interactions with the Derzacks and with their relatives and
siblings during scheduled visits. (T. 105). The Derzacks,
however, failed or refused to schedule visits with Dr.
Klosterman and Byron and Byrae until after the Contempt
hearing held on December 13, 1995.
On August 14, 1995, this Court found that it was
in the best interest of Byron and Byrae to visit with their
siblings and their paternal grandmother and ordered that
the siblings and paternal grandmother visit with Byron and
Byrae every week, free of observation, attendance or
participation of the Derzacks until further Order of Court.
The Order of November 14, 1994, prohibiting all parties
from exposing Byron and Byrae to the public vis-a-vis
discussions or references, was to remain in full force and
effect.
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In spite of the Orders of October 5, 1994,
prohibiting travel outside of Allegheny County without the
consent of CYS or the Court, the Derzacks travelled to
New York with Byron and Byrae to appear on the Montel
Williams talk show on October 16, 1995 and, as part of
their interview, mentioned over national television the
children’s names and discussed the circumstances
surrounding the children being in their care. Since
October 16, 1995, the Derzacks have appeared on the
following nationally televised talk shows discussing Byron,
Byrae and/or their legal and personal efforts to gain -
custody of the children: Sally Jesse Raphael Show, the
Leeza Gibbons Show and the Rikki Lake Show. This
Court takes judicial notice of Byron and Byrae’s
appearance “on camera” on at least three of the televised
talk shows and of the appearance of their names and
photographs in numerous newspaper articles. The
unauthorized travel to appear on talk shows and the
intentional exposure of Byron and Byrae to the media, for
the purpose of discussion of this case, was in violation of
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this Court’s Orders of October 6, 1994, November 14,
1994, April 12, 1995 and August 14, 1995.
On October 27, 1995 Timothy Jashinski made an
announced, prescheduled visit to the home of the
Derzacks and was prevented by Karen Derzack from
speaking privately with Byron and Byrae and observing
their physical condition up close. According to Timothy
Jaskinski’s testimony, Karen Derzack placed Byron and
Byrae at the top of the stairs while he remained at the
bottom of the stairs, believing that he was not permitted to
go up the stairs. (Tr. 103). After asking Byron and Byrae
two or three general questions, Karen Derzack abruptly
terminated Timothy Jashinski’s visit with the children by
telling him that “the questions will stop”. (Tr. 88).
In November 1995, this Court was advised by the
child advocate representing Byron and Byrae, that based
upon information contained in a federal lawsuit for workers
compensation filed by Karen Derzack in August 1994,
Karen Derzack had failed to properly answer a question
on the Derzacks’ foster care application which concerned
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past treatment for a mental iliness. This same question
was also improperly answered on the Derzacks’
application for adoption. The Court was further advised
that the Derzacks had falsely represented their income on
either their IRS tax returns or their adoption application or
both, as these two documents reflected a significant
discrepancy of tens of thousand of dollars per year in the
Derzacks’ reported annual income from 1990 to 1993.
On December 1, 1995, one day before the instant
Contempt hearing, the Derzacks filed for personal
bankruptcy claiming debts in excess of $540,000.00. The
Derzacks stated that their legal expenses had forced them
into bankruptcy.
On December 13, 1995, the hearing on CYS’
Petition for Contempt, as amended, was held before this
Court. In spite of the undisputable evidence presented at
the hearing to the contrary, Mrs. Derzack denied that, (1)
she had refused to allow Timothy Jashinski access to
Byron and Byrae, (2) she had ordered Timothy Jashinski
from her home on October 27, 1995, (3) she was in
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violation of this Court's “gag Order” when she appeared
on talk shows hosted by Sally Jesse Raphael, Rikki Lake,
Montel Williams and Leeza Gibbons, (4) she had failed to
request permission of CYS or this Court to travel to
California to tape the Leeza Gibbons show, (5) she had
unilaterally terminated Byron and Byrae’s therapy with Dr.
Klosterman and (6) she had misrepresented the truth
when she failed to acknowledge on her adoption
application that she had received psychological/psychiatric
care and therapy in the past. (Tr.111-115). Further,
despite the undisputed evidence to the contrary, Mrs.
Derzack could not remember or did not know/belieeve that
(1) the Derzacks were a court ordered foster placement
home, (2) Byron and Byrae had only one visit with Dr.
Klosterman from July 1994 through December 13, 1995,
(3) Judge Jaffe had the right to Order the Derzacks to do
anything in this case that he believed was in the best
interest of Byron and Byrae, and (4) she had problems
remembering dates, events, conversations or the like,
(Tr.111-125). At this same hearing, when asked about his
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1994 yearly income of $168,000 on the Derzacks’
adoption application, Michael Derzack invoked his Fifth
Amendment privilege against self-incrimination.
On January 17, 1996, the court en banc
reconvened to hear evidence discovered by CYS after the
December 13, 1995 hearing. At this hearing the Derzacks
presented, “inter alia,” a Motion to Recuse the Honorable
Cheryl Allen Craig, an African-American, who, as a Judge
in the Juvenile Section of the Family Division of the Court
of Common Pleas of Allegheny County was invited to sit
on the court en banc with the Honorable Joseph Jaffe,
presiding Judge of all matters related to this case since
1991, and the Honorable Max Baer, Administrative Judge
of the Family Division of the Court of Common Pleas of
Allegheny County. At the conclusion of the reconvened
hearing of January 17, 1996, this Court found the
Derzacks in contempt of eight Orders of Court entered
between October 5, 1994 and October 13, 1995 and
directed CYS to immediately remove Byron and Byrae
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from the custody of the Derzacks and place them with
another pre-adoptive foster family.
The Derzacks filed an immediate appeal. Pursuant
to this Court’s Order, a Statement of Matters Complained
of on Appeal was filed by the Derzacks asserting that:
1. The lower court erred in finding the Derzacks in
contempt.
yd The lower court erred in removing the children from
the Derzacks.
3. The lower court erred in failing to consider the best
interest of the children.
4. The lower court lacked jurisdiction over the matter.
5. The Honorable Cheryl Alien Craig erred in failing to
recuse herself.
DISCUSSION
Contempt of Court.
The evidence in support of CYS’ Petition for
Contempt, as amended, presented at hearings held before
the Court en banc on December 13, 1995 and January 17,
1996 was overwhelming and more than sufficient to find
that the Derzacks willfully disregarded this Court’s lawful
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Orders and failed to comply with an undertaking which the
Court had specifically directed. Based upon the evidence
presented at said hearings, this Court found that the
Derzacks, by reason of conduct or nonfeasance which
was Calculated to embarrass, hinder or obstruct the
administration of this Court, were in civil contempt of the
following eight Order of Court entered by this Court
between October 5, 1994 and October 13, 1995:
1. Court Order No. 1 - Entered October 5, 1994,
ordering, inter alia, the Derzacks to receive written
permission from the Court or CYS before travelling
outside of this Court’s jurisdiction with Byron and
Byrae.
2. Court Order No. 2 - Entered October 6, 1994, ordering
immediate placement of Byron and Byrae with the
Derzacks, as adoptive foster parents; CYS supervised
visitation privileges for Byron and Byrae’s Mother,
siblings, great aunt and paternal grandmother, and
therapy sessions with a psychologist for Byron and
Byrae.
3. Court Order No. 3 - Entered November 14, 1994,
ordering that Byron and Byrae have no contact with
the public vis a vis discussing or referring to the case
in any public context or forum.
4. Court Order No. 4 - Two Orders entered April 12,
1995, modifying, inter alia, this Court’s Order of
October 6, 1994 to set a time certain for family
visitations with Byron and Byrae.
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8. Court Order No. 5 - Entered May 9, 1995, ordering
CYS to comply with the Order of October 6, 1994 and
arrange for therapy and counseling for Byron and
Byrae, evaluate the effects of family visits on Byron
and Byrae and make announced and unannounced
visits to the Derzack home to monitor and evaluate the
home situation.
6. Court Order No. 6 - Entered July 14, 1995, ordering
the Derzacks to correct their adoption/foster care
application and adoption petition to reflect Karen
Derzack’s previous psychiatric history and provide
proof of the Derzacks’ annual income for the previous
five years.
7. Court Order No. 7 - Entered August 14, 1995,
specifically ordering the Derzacks to cease from
observing, attending or Participating in any visits
between Byron, Byrae and family members. The
Derzacks were further ordered to reschedule any visits
with the children and their relatives that were cancelled
or did not take place.
8. Court Order No. 8 - Entered October 13, 1995,
ordering the Derzacks to permit announced and
unannounced home visits with Byron and Byrae by
CYS caseworker.
In a civil contempt proceeding, the defendant may
assert present inability to comply with an Order, but in
raising this defense, the defendant has the burden of
proof. U.S. v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75
L.Ed 2d 521 (1983). In the instant case, the Derzacks
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presented no defense for their contempt of this Court’s
Orders. Instead, both Karen Derzack and Michael
Derzack further attempted to ridicule this Court by being
coy and evasive when responding to questions asked
during cross-examination. Neither Karen Derzack or
Michael Derzack presented a defense or argument in
support of a finding that there was any rational basis for
their failure or refusal to comply with this Court’s Orders.
The Derzacks, therefore, failed to meet their burden of
proof.
sit with B 1:
Violation of Court Orders Nos. 5 and 8.
With the termination of Mother's parental rights by
decree entered April 1995, the behavior of the Derzacks
seemed to change, or if not to change, to become more
noticeably unpredictable and liable to judicial inquiry. The
first indication that the Derzacks’ behavior could lead to
serious consequences occurred at approximately 9:45
a.m. on August 22, 1995 when Timothy Jashinski received
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Denson A a A a a
a telephone call from Michael Derzack advising CYS of
the Derzacks’ position regarding The Honorable Joseph
Jaffe’s Order of Court dated August 14, 1995. The
Derzacks’ position included, inter alia, that “There [would]
be no further visitation, period.” The Derzacks’ position
was considered to be a response to the directive in the
August 14, 1995 Order which specifically ordered the
Derzacks to allow Byron and Byrae to have private
visitations with CYS and family members as follows:
“Permitted at their [Byron and Byrae] visits in
addition to Supervising personnel are the five
children and Maternal Great Aunt Marion Ellis,
only. Specifically, Michael and Karen Derzack are
not permitted to observe, attend Or participate in
these visits. Michael and Karen Derzack are
permitted to wait in a room provided for them at the
CYS Regional Office during said visits.”
The Derzacks were sincere in their position that visitations
would cease and immediately curtailed all visitations,
including announced and unannounced visits by CYS
which were ordered by this Court, pursuant to Judge
Jaffe’s Order of Court dated May 9, 1995. Ina “Summary
of Contact” report prepared by Timothy Jashinski and
105A
aii
copied to the adoption and law departments, Timothy
Jashinski writes:
“On [10]-27-95, | arrived at the Derzacks’ home for
my previously scheduled 3:00 p.m. visit. Upon
arrival, Mrs. Derzack answered the door and | was
permitted to enter their home. Mrs. Derzack
appeared upset at my presence and asked me
what this visit would entail. | explained to her that |
would be greeting the children, finding out how
they are doing, then ending my visit.
At this time, Mr. Derzack came downstairs, greeted
me and mentioned that the children were going to
a Halloween party tonight. Mrs. Derzack called for
the children who were upstairs. Byron was in the
Derzacks' room watching a movie with the
Derzacks’ son, Chris. Chris brought Byron out and
sat him at the top of the stairs. Mrs. Derzack
retrieved Byrae from her room and sat her at the
top of the stairs. Mrs. Derzack then instructed the
children to say Hi to me. | asked how they were
and they responded “fine”. | next asked if they
were ready for trick or treating and what they were
going to be. Mrs. Derzack abruptly dismissed the
children, physically putting them back in the rooms
where they were. She said that | had completed
what | informed her that this visit would entail and
that the visit is over. She mentioned that the only
reason that | was allowed to visit was because of
the court Order. She also stated that the court
Order was illegal and that she was tired of us
messing with her family. Mrs. Derzack also
mentioned several times that this was their home
and that she would not tolerate our intrusion.
Mrs. Derzack appeared to be very angry and upset
at my presence. | cannot comment on how the
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children are doing since this visit lasted
approximately five minutes, the children were at
the top of the staircase and the visit was
terminated by Mrs. Derzack after two questions
were asked.”
At the hearing held on December 13, 1995, Timothy
Jashinski testified as follows:
Q.
And did you attempt to make announced and
unannounced visits to the Derzack home?
Yes, | did.
And can you tell us from the time of May of 1995
up until October of 1995, did you make
unannounced and announced visits?
Yes, | did.
And can you tell us how that proceeded? Did it go
well?
Most of the times it did go well, but there was
like—when | would arrive, they would allow me in
the home. | spoke with the children. | spoke with
the Derzacks. And uSually it wasn’t a problem.
When did it start becoming a problem?
There were some—since there were SO many
Court hearings, contempts, motions, various
hearing, the problems started, | believe, in August,
It was the Derzacks understanding or what they
Stated to me was that they had been granted or
been appointed “in loco parentis” and that my
visitation was not permitted.
107A
Let me clear this up. The Derzacks were saying to
you that they were in loco parentis?
That is what they told me.
So that was back in August of 1995; is that
correct?
Yes.
Did you attempt to visit the Derzack residence after
the issuance of the October 13, 1995 Order?
Yes, | did.
Can you tell us what occurred?
| scheduled a visit for October 27" at 3:00 o'clock. |
arrived... .
Was Mrs. Derzack friendly to you when you came
to the door?
| wouldn't say friendly, no.
So she ushered you in, and then what happened?
Then she asked me why | was there, and |
informed her that | was there to follow the Court
Order and | was going to find out—you know, say
hello to the kids; find out how they were, and then
leave.
And what happened?
She had—the kids were upstairs. She had them
come out of their rooms. She put them at the top
of the stairs.
108A
Where were you?
| was at the bottom in the entrance of the house. |
Said hello to the kids. The kids said hi to me. |
asked them how they were doing. They said fine.
Then | proceeded—Mr. Derzack had mentioned
something about them going to a Halloween party,
So | just asked them, you know, if they were ready
What happened? Paint a picture for us what
occurred?
She mentioned the fact that | was interrogating the
kids; that the Court Order wasn't valid because the
judge had no jurisdiction over allowing people into
their home, | believe. So, you know, |
accomplished what | told her | set out to do, which
was to find out how the kids were doing and to
greet them. So the visit ended.
Was she angry?
| would say so.
There was a rational basis for the Court’s visitation
Orders, as to CYS. CYS, as agent for the court, placed
Byron and Byrae into the care and custody of the
Derzacks. Legal Custody of the children, however,
remained with CYS and the court and, as such, CYS was,
at all times, ultimately responsible for the welfare of Byron
109A
and Byrae. This responsibility included a duty to monitor
the Derzacks’ treatment of the children and the children’s
adjustment to the Derzacks and their home environment.
Monitoring was absolutely necessary in order for CYS to
assure the Court that Byron and Byrae were (1) safe, (2)
provided for and (3) free of issues that needed to be
addressed. The Derzacks’ refusal, whether overt or
covert, to allow Timothy Jashinski to physically observe
Byron and Byrae and speak with them privately, prevented
CYS from monitoring the welfare of Byron and Byrae and
did not serve the best interest of the children. We,
therefore, find that the Derzacks’ refusal to allow Timothy
Jashinski to visit privately with Byron and Byrae was not
only in violation of this court’s Orders of May 9, 1995 and
October 13, 1995 but also placed in jeopardy the safety
and welfare of Byron and Byrae.
Violation of Orders Nos. 2, 4, and 7
110A
The Derzacks’ termination of CYS’ visitation
privileges included the termination of relative visitation
privileges, in spite of the fact that this Court had entered
two Orders specifically mandating the Derzacks to assist
and cooperate with CYS in arranging and implementing
regular visits with Byron and Byrae and their siblings,
paternal grandmother and maternal great aunt. These
visits were to be private, without the Derzacks in
attendance. The Court Orders were based upon Byron
and Byrae’s psychological bond with these relatives and
the harm that would occur, if the Children were separated
from them. Additionally, the Court was concerned that the
children could not or would not Speak openly and freely in
the Derzacks’ presence, if they had problems or concerns
that involved the Derzacks. The Court believed regular,
private, visits with family members to be-so important to
the healthy development of Byron and Byrae that it also
ordered the rescheduling of any visit which had not
occurred on the regularly scheduled date. No cancelled
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family visits, however, were ever rescheduled by the
Derzacks, nor did any family visits take place after August
1995, while the children were in the custody of the
Derzacks.
Without warning or reason other than they believed
themselves to be in loco parentis and without
consideration for the potential long-term psychological
harm to Byron and Byrae, the Derzacks unilaterally
terminated visitation rights as to all relatives in August
1995 in contempt of this Court’s Orders of April 12, 1995
and August 14, 1995.
Violation of Court Orders Nos. 2 and 5.
After the Court’s granting of CYS’ selection of the
Derzacks as the pre-adoptive parents in July 1995, the
Derzacks’ behavior towards the children and their
environment become more and more isolationist. In
contravention to this Court’s Orders of October 6, 1994
112A
and May 9, 1995, the Derzacks failed or refused to take
the children to a mental health professional for therapy.
The record of the trauma imposed upon Byron and
Byrae from birth indicated that therapy and counseling
were necessary to maximize the children’s chances for
growing up to be normal functioning adults, free of trauma
and mental disease. So critical was the need for the
Children to receive therapy, that the Court entered two
Orders mandating therapy with Dr. Debra Klosterman for
Byron and Byrae, with the wpeeen of the therapy being
paid by the Commonwealth. As with the visitation
privileges, the Derzacks cancelled or failed to schedule
appointments with Dr. Klosterman between July 1995 and
October 12, 1995. The October 12, 1995 appointment
with Dr. Klosterman was for Byron, only, and occurred one
day before the hearing on a CYS Petition for Contempt.
(Tr. 42) :
ission from CYS balk iat tt peal mana
of Allegheny County
Violation of Court Orders Nos. 2 and 5.
In Allegheny County, foster parents, whether court
ordered or approved by CYS or another provider, are not
permitted to take their foster children out of the jurisdiction
of Allegheny County, without either CYS or Court
permission. (Tr.48). The Derzacks were not only aware of
this requirement through conversations with CYS (Tr.50)
and information contained in the foster care manual which
is provided to all foster care parents, but they were also
made aware of this travel requirement, having received a
copy of this Court’s Order of October 5, 1994 which clearly
sets forth that authority for the Derzacks to travel out of
the jurisdiction with Byron and Byrae rests with CYS and
the Court. (Tr.105)
At the December 13, 1995 contempt hearing,
Karen Derzack testified that she had appeared on the
Rikki Lake, Montel Williams, Sally Jesse Raphael and
Leeza nationally televised talk shows with Byron and
114A
Byrae, but showed disdain for the Court when asked
whether she had requested permission to travel with the
Children outside of Allegheny County to appear on these
shows:
Q. With regard to the Gag Order, it’s also my
understanding that you have appeared on the Rikki
Lake Show; is that correct?
A. Yes.
Q. And you've appeared on the Montel Williams
Show, is that correct?
A. Yes.
Q. You admit you appeared on Sally Jesse Raphael,
is that right?
Yes.
Q. And you also admit that you've appeared on the
Leeza Show?
A. Yes.
Q. Do you admit that you violated this Court's Gag
Order with regard to your appearances on Rikki
Lake and Montel Williams and Leeza?
A. Do | admit | violated them?
Q. Yes.
115A
A. No, | do not.
Q. You admit that you failed to request permission of
CYS or this Court to go to California to tape the
Leeza Show?
| do not admit that.
Did you ask permission?
From?
9 > 2 >
From CYS or this Court to go tape the Leeza show
in California?
A. No, | do (sic) not.
Q. But yet you don’t consider that a violation of Court
Orders in this case?
A. | did not violate any Court Order.
Violation of Court Order No. 6
In 1992, CYS contracted with Family Services to
temporarily place Byron with the Derzacks and approved
the Derzacks as a special needs foster care home for the
singular purpose of temporarily placing Byron into their
home. The information contained in the Derzacks’
application for consideration as a foster care family was
116A
>
>
ee
one of the important factors used in selecting them as
foster care parents for Byron.
In October 1994, after removal from the Derzacks’
home and several unsuccessful placements, Byron, now
with his older sister, Byrae, were placed with the
Derzacks, for the purpose of adoption. Both the foster
care application and the adoption application specially
requested psychological and financial information. This
information gives important insight into the prospective
foster care and adoptive parents’ emotional and financial
ability to maintain the child being entrusted to their care
and must be answered truthfully, if the best interest of the
child is to be served. In response to these two specific
questions on the adoption application filed by the
Derzacks in August 1994, Karen Derzack responded “no”
to the question addressing prior mental health treatment
when, in fact, she had suffered from depression and a
mental disorder which required professional treatment.
Additionally, Michael Derzack listed their annual income
as $168,000.00 when, in fact, his income tax statements
117A
reflected an income of $102,736.41 for a three year period
extending from 1990-1993.
In November 1995, CYS learned that the
information provided by the Derzacks on the dual purpose
foster/adoption application concerning Karen Derzack’s
mental health history and Michael Derzack’s annual
income was false. At the December 13, 1995 hearing on
CYS’ Petition for Contempt, Karen Derzack was vague
and unresponsive in answering questions concerning her
failure to answer “yes” to the question on the adoption
application which specifically asked whether she had ever
received psychological care. Karen Derzack testified as
follows:
Q. Mrs. Derzack, there’s been some discussion that
on your foster care application you stated that you
never received psychological care and that that
was untrue; is that correct?
A. Can you restate that, please.
Q. ls it correct that the statement you made on your
foster care application that you've never been
under psychological or psychiatric care was false?
A. Are you referencing this here (indicating)?
118A
y. 2 > @ Boe
i. oe ee
The foster care application.
That's what it says.
Untrue; is that right?
I'm not sure that’s the way to put it.
How would you put it?
I'd put it that the agencies and the doctors
according to the Court Orders involved in the Court
sessions all knew the history.
How did they know the history?
Because | had told everybody right up front.
So you told Children & Youth Services before you
filled out that form that you had a psychiatric
history, and so they were aware of it. That what
you're saying?
Did | tell them personally, CYS?
Uh-huh.
No
How is it that you think they knew?
It's my understanding from the services | had
told—Dr. Piercy | told by a Court-Ordered
evaluation. | may have somewhere along the line
have told CYS. | don’t remember specifically. It
was always indicated to me it was a non-issue.
That’s what Dr. Piercy had Said to me, and if she
felt it was an issue, it would be brought to the
Court.
119A
VW
Q. If all of these people knew about it and you had
told so many other people, why did you write no on
the form?
Because it's not an issue.
And it’s not an issue because?
Because there is no problem.
Who decided that there’s no problem?
> 29 > O >
| know that there’s no problem, and also the
authorities involved knew and they did not see a
problem; Dr. Piercy significantly.
Q. That's the same principle you used in filling out the
rest of the application?
A. Excuse me?
Q. When you were filling out the rest of the
application, besides that question, did you use the
same principle to guide you; that if something was
not a problem, you didn’t mention it?
A. | don’t know how to answer that.
Q. At any rate, at sometime in the past, you had an
iliness you sought psychological or psychiatric
treatment; Is that right?
A. Yes. (Tr. 115-117)
At this same hearing, Michael Derzack repeatedly
invoked his Fifth Amendment privilege as to all questions
120A
asked concerning the truth or falsity of his 1993 annual
income which was listed on the Derzacks’ application for
adoption as $168,000.00. The Derzacks’ 1993 annual
income came under scrutiny when Michael Derzack
reported an income of $475,736.41 between 1990 and
1993 in a federal lawsuit filed by the Derzacks. The
Derzacks, however, had reported a total three year
income,from 1990-1993 of $102,736.41 to the Internal
Revenue Service. Michael Derzack was advised by the
Court that, although he had every right to invoke his Fifth
Amendment privilege because of possible litigation with
the Internal Revenue Service (IRS) which could result in a
Criminal indictment, the hearing before this Court was a
civil proceeding and a negative inference could be drawn
from his failure to answer.
Although it is not the province of this Court to
evaluate the mental health status of individuals or to
determine the truth or falsity of the information submitted
to the IRS, it is the province of this Court to determine the
fitness of all adoptive parents. We find that the Derzacks
121A
knowingly provided false information on their adoption
application. Providing false information relates directly,
not only to the Derzacks’ credibility, but also to their
fitness to serve as adoptive parents. Based upon the
negative inferences drawn from cross examination of both
Karen Derzack and Michael Derzack, this Court finds that
the Derzacks do not meet the standard of fitness with
regard to honesty and integrity required by this Court to
qualify them as adoptive parents. Under these
circumstances, we are compelled to order the immediate
removal of Byron and Byrae from the care and custody of
the Derzacks and their placement in another pre-adoptive
home.
Based upon the above findings of fact, this Court
has denied the Derzacks’ application for adoption and has
found that the Derzacks are guilty of civil contempt, having
violated this Court’s Orders of October 5, 1994, October 5,
1994, November 14, 1994, April 1, 1995, May 9, 1995,
July 14, 1995, August 14, 1995, and October 13, 1995.
Further this court finds that it is in the best interest of
122A
Byron and Byrae to be removed immediately from the care
and custody of the Derzacks and placed ina CYS
approved adoptive foster care home.
A lower court has both legal and constitutional
authority to use its remedial power of civil contempt to
force compliance with its lawful conditional orders where
its dominant purpose is to vindicate the dignity and
authority of the court and to protect the interest of the
general public.
Removal of the Children
Pre-adoptive parents are not entitled, at any time,
to the protections afforded a natural Parent and cannot
acquire such protection prior to final adoption. Although
this Court sympathizes with the shock and confusion that
any parent would feel with the removal of one’s children
from one’s home, CYS has the authority to remove a child
from a pre-acoptive home at any time prior to final
adoption, if CYS believes, as in this Case, that the welfare
of the child is in jeopardy.
123A
On January 17, 1996, pursuant to a hearing on the
contempt petition filed by CYS, recommendations of CYS
and the child advocate and the overwhelming evidence
placed on the record, the Court en banc found the
Derzacks to be in contempt of eight Orders of Court and
inter alia, denied the Derzacks’ adoption petition.
Concurrent with the finding of contempt was a finding of
unfitness of the Derzacks to continue to serve as
surrogate parents to Byron and Byrae. An appropriate
Order was issued to immediately remove the children from
the custody of the Derzacks at the conclusion of the
hearing, as permitting the children to remain in the
custody and care of the Derzacks after a finding of
unfitness would not have been in the best interest of
Byron and Byrae.
Removal of Byron and Byrae from the Derzacks’
home was not a sanction imposed upon the Derzacks for
their contempt of this Court's Orders. These children were
removed because removal was in their best interest. In
dealing with the question of physical custody of the child,
124A
pending the resolution of adoption issues, this Court
generally orders the preservation of the status quo when it
Poses no threat to the child. The preservation of the
Status quo pending the Derzacks’ appeal of this Court’s
Order of January 17, 1996, however, was not available to
this Court, because of the reasons Stated above and
because of this Court's belief that the Derzacks were
under great stress due to the legal and financial problems
brought to the attention of this Court during the contempt
hearings. It was undisputed on the record of the January
17, 1996 hearing that (1) Karen Derzack required police
assistance to locate Michael Derzack in December 1995
when he disappeared for several days, after a period of
heavy drinking, following the first contempt hearing and to
locate him in January 1996, after he stormed out of the
home, intoxicated, following a verbal domestic dispute with
Karen Derzack, (2) the Derzacks have a pending
bankruptcy case and possible Internal Revenue Service
litigation, both of which bespeak the Precarious nature of
the Derzacks’ financial situation and (3) the Derzacks’
125A
petition for adoption was denied based upon the false
information contained therein, thus giving them no
standing to object to the removal of the children into the
custody and care of CYS.
This Court determined that there was an imminent
threat to Byron and Byrae’s welfare, if returned to the
Derzacks and, therefore, refused to stay its Order
removing the children, pending the outcome of the
Derzacks’ appeal. Concerned about the welfare of the
children, CYS was ordered by this Court to immediately
remove the children from the courthouse following the
January 17, 1996 hearing and place them with new,
prospective adoptive parents.
In spite of the emotional investment and the
grievous loss being experienced by the Derzacks, the
welfare of the children remains this Court’s paramount
concern. While it is true that Byron and Byrae will be
required to make adjustments to their removal from the
Derzacks’ home and placement in a new home, studies
reflect, and this Court has observed, that children much
126A
older than Byron and Byrae adjust successfully to
favorable - though new - environments. According to
generally accepted views on child-development, the
benefits to Byron and Byrae of being removed from the
Derzacks’ home and being placed in a home where they
can grow up in obscurity, free to visit with siblings and
loved ones, while receiving proper care and therapy,
should be clear, unequivocal and significant.
Best interest of the children.
This case is not the Commonwealth versus the
Derzacks. Three parties are involved: the
Commonwealth, the Derzacks and the children and it is
the welfare of the children that is the Court’s primary
consideration. In reviewing the hearing records and prior
medical and CYS reports and recommendations with the
welfare of children as the primary consideration, this Court
unanimously found that it was in the best interest of Byron
and Byrae to be removed from the Custody and care of the
Derzacks and placed with another pre-adoptive family.
127A
Once parental rights have been terminated, ether
by consent or involuntarily, the best interest of the child
becomes the standard by which the court must be guided
when placing the child for adoption. McMillen v. McMillen,
529 Pa. 198, 602 A.2d 845 (1992); In Re Miller, 380 Pa.
Super. 423, 552, A.2d 261 (1988). When it is found, prior
to the finalization of the adoption, that a placement is not
in the best interest of the child, the placement must be
terminated.
When Byron and Byrae were placed into the foster
care system, it was not the intent of CYS or the Court to
transfer them from social worker to social worker and from
family to family without ever allowing them to experience
the love, affection, stability and sense of belonging to
necessary for normal development. CYS initially worked
toward a reunification of Mother with Byron and Byrae. In
spite of the support of CYS and various agencies, Mother
could not overcome her drug addiction and provide the
care and protection necessary for the survival of Byron
and Byrae. Recognizing that a permanent reunification
128A
was not foreseeable, the Parental rights of Mother were
terminated as to Byron and Byrae, in 1995. With Mother’s
Parental rights terminated, Byron and Byrae assumed the
Status of legal orphans. This Court, believing that
adoption not orphancy was in the best interest of both
children, directed CYS to assist the Derzacks in preparing
their application to adopt Byron and Byrae.
With adoption of Byron and Byrae by the Derzacks
as its goal, this Court, by evaluating CYS
recommendations, medica! Practitioners’ reports and court
testimony, determined that it was in the best interest of
Byron and Byrae to:
1. maintain an Ongoing relationship with Mother, paterna/
grandmother, maternal great aunt, siblings and other
approved relatives,
2. be kept out of the public eye and permitted to grow up
in obscurity,
3. receive professional therapy and counseling to
ameliorate the effects of their early physical, emotional
and psychological abuse: drug addictions and
Separation from Mother and natural relatives,
4. receive Court permission to be taken out of the
jurisdiction,
5. be visited on a regular basis by their CYS caseworker
to have their care and adjustment monitored, and
6. be observed by a medical practitioner for evaluation of
interactional visits with Mother, relatives, siblings and
the Derzacks.
Appropriate orders were issued from October 5, 1994 to
October 13, 1995 as mandates which were intended to be
supported and carried out by the Derzacks. The
Derzacks, however, defiantly chose not to comply with this
Court's orders and unilaterally decided to (1) stop the
children’s visitations with their natural family and relatives,
(2) deny the children psychological therapy, (3) use the
children as media and career opportunities, (4) co-write a
book about Byron, (5) bar CYS from visiting and
monitoring the children’s adjustment and care and (6)
travel with the children outside of the jurisdiction of the
Court without prior CYS or court approval. This Court
finds that CYS’ decision to abrogate the placement of
Byron and Byrae with the Derzacks was justified under the
best interest of the child standard.
Juvenile Court Jurisdiction over the Matter.
130A
The basis for the Derzacks’ challenge to this
Court's jurisdiction is unfounded. In Pennsylvania, the law
is well-settled that Juvenile Court, through CYS, is
responsible for establishing permanency in the lives of
long-term foster care children whose natural parents’
parental rights have been terminated.
CYS, ine agency to which Byron and Byrae were
relinquished for adoption by the Court, has legal custody
of the children and is responsible for their care at all times
until a decree of Adoption is entered by the Court. Any
placement for temporary care or for adoption made by
CYS may be terminated at the discretion of the Court or
CYS at any time prior to the Decree of Adoption.
The legislation intended to elevate the placement
agency's discernment of danger above the interests of
Prospective adoptive parents. In the event of termination
of a placement for temporary care or for adoption, the
child is returned promptly to the physical custody of CYS,
as the Commonwealth has an ongoing interest in
131A
immediate removal of a child from a placement wherein a
child’s welfare is endangered.
Recusal of Honorable Chery! Alien Craig.
At the reconvened hearing held on January 17,
1996, the Derzacks presented a “Motion to Recuse The
Honorable Cheryl Allen Craig from the Court En Banc
Empaneled December 13, 1995” which read in pertinent
parts as follows:
3. The above-noted action was filed, partially,
based upon the violation of the constitutional rights
of Karen Derzack and Michael Derzack because of
a policy adopted by Children and Youth Services
and the County of Allegheny on May 15, 1992,
captioned “Children and Youth Services
Transracial Piacement Policy”.
7. The correspondence identified as Exhibit “122”
was a letter from Mary C. Young to the Honorable
Cheryl Alien Craig requesting that Judge Craig
review the Children and Youth Services
Transracial Placement Policy. Ms. Young in her
letter specifically states:
“Thanks for agreeing to look at it. Any
feedback will be greatly appreciated. This
came about because of our concern of
Black children being displaced in white
homes and the impact of such placement
upon their lives. Vic, therefore asked me to
head a committee to develop a policy.
132A
Additionally, in the deposition of Ms. Young (pages
142-146 attached as Exhibit “B”), when Ms. Young
was queried as to whether or not Judge Craig
responded to the letter of February 14, 1991, Ms.
Young responded “She did not”.
9. Because of the basic issue involved in the
action filed in the United States District Court for
the Western District of Pennsylvania which deals
with the constitutional questions of a policy not
permitting white persons to adopt black Children,
and because it is apparent that the Honorable
Cheryl Allen Craig had the Opportunity to review
Said policy, it is Suggested by the undersigned that
the Honorable Cheryl Allen Craig cannot be neutral
or detached with respect to issues currently before
the Court En banc.
Race is not at issue in the matter before this Court.
The only issue before this Court is whether the Derzacks
violated any or all of the-eight Orders of Court entered by
this Court between October S, 1994 and October 13,
1995. The Derzacks wish this Court to believe that Judge
Craig is somehow impaired from hearing this case as a
member of the Court en banc, because she was sent a
draft copy of a policy discouraging the adoption of children
by parents who are not of the same race as the Children
whom they intend to adopt, although there is no evidence
that the draft copy of the policy was read by Judge Craig
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or that Judge Craig even supports a transracial placement
policy.
The Derzacks failed to present a scintilla of
evidence to support a finding that Judge Craig has a bias
or prejudice that would render her unable to make fair and
impartial decision in this case. Instead, the Derzacks
appear to be attempting to cast a shadow over these
proceedings by implying that Judge Craig cannot be
impartial in her deliberations because she shares the
same racial heritage as Byron and Byrae. Such thinking is
not only unfounded, it bespeaks deep rooted bigoted
feelings and attitudes which may be harbored by the
Derzacks. This Court finds no reason why Judge Craig
could not render a fair and impartial decision in this case.
Recusal of a judge is not automatic. The Code of
Judicial Conduct, including provisions dealing with
disqualification, does not have the force of substantive
law, but rather, imposes standards of conduct upon the
judiciary to be referred to by a judge in his/her self-
assesment of whether he/she should volunteer to recuse
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himself/herself from a matter pending before him/her. The
rules of judicial conduct do not give standing to others to
seek compliance or enforcement of the Code. Reilly v.
A.2d 1291, 507 Pa. 204 (1985).
The law of recusal is well settled that a Judge shall
not be required to disqualify himself/herself from hearing a
case unless he/she has a bias or prejudice or the facts
Surrounding the case would convince a reasonable person
that the judge could not be impartial. United States vy.
Thompson, 483 F.2d 527, 528 (3d Cir. 1973), 28 U.S.C.
455 (1974), as amended. The law further states that the
party petitioning the Court for disqualification of a trial
judge bears the burden of producing evidence establishing
the bias, prejudice, wine or partiality necessitating
recusal. Feingold v. Hall, 521 A.2d 33, 360 Pa. Super.
539 (1987), appeal denied 529 A.2d. 108, 515 Pa. 607.
The fact that Judge Craig was sent a draft copy of
CYS’ transracial placement policy on February 14, 1991 to
review, establishes a finding of “nothing”. A fact which
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any reasonable person must conciude based upon the
Derzacks’ admission:
“. . when Ms. Young was queried as to whether or
not Judge Craig responded to the letter of
February 14, 1991, Ms. Young responded, “She
did not”.
This Court is, therefore, unable to find, from the facts set
forth in the Derzacks’ motion to recuse Judge Craig, the
slightest ground for questioning Judge Craig's ability to be
impartial in this case.
Reviewing Courts refuse to disqualify judges on
the basis of their general background, education and
experience. Blank v. Sullivan, 418 F. Supp. 1 (S.D.NLY.
1975). Blank was a sex discrimination case against a law
firm. In Blank, the defendant sought to disqualify the
judge because she was female and as a lawyer had
worked on behalf of minorities who had suffered from
discrimination. The Blank Court refused to disqualify the
judge, reasoning that, if background, race or sex were of
themselves grounds for removal, “no judge on this Court
could hear this case, or many others, by virtue of the fact
136A
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that all of them were attorneys, of a sex (and) often with
distinguished law firms or public service background.”
In Pennsylvania v, Local 542 Internation Union of
Operating Engineers, 388 F.Supp. 155, 182 Pa. 1974.
affd 552 F.2d 498 (3 Cir. 1977), the defendant's centra!
allegation was that Judge Leon Higginbotham, an African-
American, had recently spoken before a Black History
organization and revealed his identification with civil rights
cases. In addition to refusing to disqualify Judge
Higginbotham on the grounds that background and
association could not be used to prove bias, the Court
noted that dedication to uphoiding the law also could not
be used to disqualify a judge. Id, at 159. The court in
Cipolione v. Liggett Group, Inc., 802 F.2d 658, 569-60 (3d
Cir. 1986), cert. denied, 107 S.Ct. 907 (1987) recently
observed, “If judges could be disqualified, because their
background in the practice of law gave them knowledge of
legal issues which might be presented in Cases coming
before them, only the least-informed and the worse-
prepared lawyers could be appointed to the bench.”
137A
This Court has no explanation why the Derzacks
singled out Judge Craig for recusal, as all judges in
Juvenile Court are from time to time called upon the
review drafts of documents and policies prepared by CYS
and other agencies. The presumption held by the
Derzacks that Judge Craig could not be impartial in ruling
in a case where she was asked to read a draft of a
document which is not at issue and, even if it were at
issue, would not be grounds for recusal
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