Appendix — Derzack v. Allegheny County Children & Youth Services

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Supreme Court, u.s

“iLED o

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

12A

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

13A

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

14A

™

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.

16A

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

17A

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.

19A

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

20A

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

22A

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

23A

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.

47A

(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

48A

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

49A

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

50A

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.

S1A

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

104A

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

106A

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

111A

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

133A

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

134A

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

135A

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

|

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

This text is long and has been trimmed here. Open the source document for the complete record.

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

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