Opposition Brief — R. S. v. Children & Youth Services

NO. 93-139

IN THE

Supreme Court of the GQnited States

1993 Term

IN RE: ADOPTION OF STEVEN S., a minor.

Appeal of R.S. (Father)

and J.M.S. (Mother)

Petitioners,

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT OF THE

UNITED STATES

IRA WEISS

County Solicitor

Pa. |.D. No. 17408

GEORGE M. JANOCSKO

Deputy County Solicitor

Pa. |.D. No. 26408

LAURA J. WHITEMAN

Assistant County Solicitor

Pa. |.D. No. 50377

Allegheny County Law Department

300 Ft. Pitt Commons Bldg.

445 Ft. Pitt Blvd.

Pittsburgh, Pennsylvania 15219

Firm No. 057

(412) 644-1120 -

COUNTER QUESTIONS PRESENTED

|. WHETHER THE PENNSYLVANIA SUPERIOR COURT

WAS CORRECT IN TERMINATING THE PARENTAL RIGHTS

OF THE PETITIONERS WHEN THE DECISION WAS BASED

UPON THE WELL-SETTLED STANDARD OF ‘‘CLEAR AND

CONVINCING EVIDENCE” ESTABLISHED BY THE UNITED

STATES SUPREME COURT?

ll. WHETHER THE STANDARD OF “‘CLEAR AND CONVINC-

ING EVIDENCE’? SUPPORTS THE PENNSYLVANIA

SUPERIOR COURT’S DETERMINATION TO TERMINATE THE

PETITIONERS’ PARENTAL RIGHTS WHEN THE DECISION IS

BASED UPON:

(i) CLEAR AND CONVINCING EVIDENCE,

(ii) THE CONDITIONS WHICH LED TO THE REMOVAL OF

THE CHILD CONTINUES TO EXIST,

(iii) THE PARENTS CANNOT OR WILL NOT REMEDY

THOSE CONDITIONS,

(iv) THE SERVICES MADE AVAILABLE TO THE PARENTS

ARE NOT LIKELY TO REMEDY THE SITUATION; AND

(v) REMOVAL OF PARENTS RIGHTS ARE IN THE BEST

INTEREST AND WELFARE OF THE CHILD?

Both | and II answered in the Affirmative by the Pennsylvania

Courts.

TABLE OF CONTENTS

Page

Counter Questions Presented ........................

Te ee ce eee eae iii

Sr Vv

el oc cee ey cece ees bene 1

a ees eee ee ee ews 2

Constitutional and Statutory Provisions ................ 2

Counterstatement of the Case ....................... 3

Arguments for Denying the Writ......................

l. IT HAS BEEN A LONG ESTABLISHED FACT THAT

THE SUPREME COURT HAS DEEMED CONSTITU-

TIONAL ANY DECISION TO TERMINATE PARENTAL

RIGHTS IF IT IS BASED UPON CLEAR AND

CONVINCING EVIDENCE. THIS STANDARD IS

WELL-SETTLED. IT IS INCORPORATED INTO

PENNSYLVANIA’S ADOPTION ACT, 23 PA. C.S.A.

§2511(a), AND THUS NO ACTION TAKEN AGAINST

PETITIONERS COULD BE CONSIDERED

REPUGNANT TO THE CONSTITUTION.......... 7

ll. THE FIVE CRITERIA IN 23 PA. C.S.A. §2511(a)

USED TO TERMINATE PARENTAL RIGHTS WERE

CORRECTLY APPLIED TO THE PETITIONERS. NO

ABUSE OF DISCRETION WAS COMMITTED BY THE

PENNSYLVANIA COURTS IN THIS CASE AND THE

EVIDENCE CLEARLY AND CONVINCINGLY ESTAB-

LISHED THAT THE PETITIONERS’ PARENTAL

RIGHTS WARRANTED TERMINATION........... 9

Ne cu nc ccecccene 16

TABLE OF AUTHORITIES

Page

in Re: Anary, 522 A.2d 73 (Pa. Super.

7.) errr rr rr Creek Te eet ee 14

In Re: Winship, 397 U.S. 358, 90 S.Ct.

9 eee pr eee r rr eee ee ee 12

Lassiter v. Dept. of Social Service of

Durham County, N.C., 452 U.S. 35,

TUE toe Fo ee ee eee 13

Logan v. Zimmerman Brush Co., 455 U.S. 422,

Oe ye Re UF. 12

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.

SY. wer rer rs terre eee eee 9

Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254

ery erro te ee pa 12

OPINIONS BELOW

The opinion of the Court of Common Pleas of Allegheny County,

Pennsylvania filed at Lower Court Docket No. 260 of 1986, is

unpublished. It is reproduced on page 66 of Petitioner’s Writ.

The opinion of the Superior Court of Pennsylvania affirming the

order of the lower court at Superior Court Docket Number 1317

Pittsburgh, 1991. It is reproduced on page 64 of Petitioner’s Writ.

The Supreme Court of Pennsylvania entered an Order denying

the Petition for Allowance of Appeal by Order dated March 17,

1993 and no opinion was filed. This Order is reproduced on page

65 of Petitioner’s Writ.

- JURISDICTION

The Supreme Court of the United States has jurisdiction to hear

this petition for a Writ of Certiorari pursuant to 28 U.S.C. Section

1257(a). The order of the Court of Common Pleas terminating

Petitioners’ parents rights was entered on June 29, 1991 and

was timely appealed to the Superior Court of Pennsylvania,

Pittsburgh District. The Superior Court filed its decision on July 7,

1992. A Petition for an Allowance of Appeal was timely filed with

the Supreme Court of Pennsylvania and an Order denying the

Allowance of Appeal was entered March 17, 1993. A Petition

for Certiorari has been filed within ninety (90) days of the date

of the order of the Supreme Court of Pennsylvania.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fourteenth Amendment

Section | of the Fourteenth Amendment states: ‘‘All persons

born or naturalized in the United States, and subject to the juris-

diction thereof, are citizens of the United States and of the State

wherein they reside. No State shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty or property without due process

of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

Adoption Act of 1990; 23 Pa. C.S.A. §2511(a)(5) provides:

(a) The rights of a parent in regard to a child may be termi-

nated after a petition filed on any of the following grounds:

(5) The child has been removed from the care of the parent

by the court or under a voluntary agreement with an agency for

a period of at least six months, the conditions which led to the

removal or placement of the child continue to exist, the parent

cannot or will not remedy those conditions within a reasonable

period of time, the services or assistance reasonably available

to the parent are not likely to remedy the conditions which led

to the removal or placement of the child within a reasonable

period of time and termination of the parental rights would best

serve the needs and welfare of the child.

Pennsylvania Code, 55 §3130.11, 3130.68. §3130.11 - It is

the goal of Children and Youth Services to ensure for each child

in this Commonwealth a permanent, legally assured family which

protects the child from abuse and neglect §3130.68 - Visiting

and communication policies.

(a) The county agency shall provide opportunity for visits

between the child and parent as frequently as possible but no

less frequently than once every 2 weeks at a time and place con-

venient to the parties and in a location that will permit natural

interaction, unless visiting is:. . .

(3) Not in the child’s best interest and is limited or prohibited

by court order.

(b) Except in circumstance in which the county agency has

reason to suspect that a child is at risk of abuse as defined in

Chapter 3490 (relating to child protective services - child abuse),

the county agency may not reduce the opportunity for visitation

between parents and their child in placement to less than once

every 2 weeks without prior court approval of the reduction.

COUNTERSTATEMENT OF THE CASE

Steven James Schoenfeld was born on May 17, 1983 to Janice

and Robert Schoenfeld. Robert Schoenfeld has six children, two

from a previous marriage and four from his relationship with

Janice Schoenfeld. Steven and another child were removed from

Janice and Robert Schoenfeld’s care in 1983 by Allegheny

County Children and Youth Services (CYS). The courts have

never returned either of those two children to the Schoenfeld

home. Steven was removed for the following reasons: On June

20, 1983, at the age of 1 month, Steven suffered a broken leg.

The Schoenfelds failed to seek medical attention for Steven until

the following day. He suffered a spiral fracture of the leg, which

is caused by twisting force. Bruises were also apparent on

Steven’s face and behind his ear. The parents explanations for

these injuries were completely inconsistent with medical opin-

ion. CYS was notified by employees at the hospital where Steven

was being treated. The Juvenile Court held a hearing on the mat-

ter and allowed Steven to return home under periodic checks

by a visiting nurse. However, within a month, Steven was

removed again on an emergency shelter care order when the

visiting nurse reported Steven to be in an extremely emaciated

condition. Steven was transported to the hospital, and photo-

graphs of his emaciated condition were taken. (Tr. dated 6/20/90,

p. 108). Physicians diagnosed Steven as suffering from extreme

malnutrition. Eventually, after regaining his weight, Steven was

released to a temporary foster care placement. At the depen-

dency hearing, Dr. Susan Tiegs, the emergency room physician

at Children’s Hospital, testified that Steven’s malnourished state

could only have been the result of deliberate neglect. (Tr. dated

9/15/83, p. 12). She also testified that the bruises on Steven

could not have been caused by Steven himself, as the Schoen-

felds had suggested (Tr. dated 9/15/83, p. 13). Nor did the radi-

ologist’s reports as to the spiral fracture of the leg coincide with

the parents’ explanation of Steven’s fall. Steven was declared

dependent in September, 1983, and placed in a foster home

where he has remained until present, some 9 years later. Steven

has developed normally within this time frame. During the inter-

vening years, CYS has attempted to work with Janice and Robert

Schoenfeld in an effort to ultimately reunify Steven with his

natural parents, if appropriate. However, the Schoenfelds failed

to complete any of the goals stated in their Family Service Plans.

The transcripts are replete with testimony from numerous

careworkers, all expressing the dismal failure of the parents to

do anything constructive in order to aid reunification (Petitioners'

Writ, pgs. 71-105). The parents were requested to engage in

specific programs in order to learn parenting skills, and, more

importantly, to address the abuse issues in counseling sessions.

The Schoenfelds repeatedly refused to follow through with any

requested evaluations or to assume responsibility for their role

in actions which resulted in Steven coming in custody of the

Court. The parents have steadfastly denied that the spiral frac-

ture, bruises, and subsequent malnutrition were the result of their

parental abuse or neglect.

The two incidents that led to Steven’s removal established

that his home environment seriously jeopardized his health and

safety because of inadequate explanations for bruises on his

face, the leg fracture, and because of a dramatic weight loss

and malnourishment for which there was no reasonable expla-

nation other than neglect.

C&YS has vigorously attempted reunification. The incidents

that led to Steven’s removal strongly suggested that Steven’s

birth had disrupted the functioning of this family.

Consequently, C&YS required the parents to complete a

MHMR assessment and to complete any counseling which the

assessment recommended as a condition for Steven’s return.

To date, the family has not been willing to permit such an

assessment.

C&YS also required the parents to participate in a program

that addressed parenting skills and child developmental issues

and that evaluated the parents’ abilities to relate to and to care

for Steven. It was approximately two years before the parents

were willing to participate in such a program. At that time, the

staff of this program concluded that they were not capable of

responding to Steven’s needs.

With the passage of time during which Steven remained out-

side the home, the need for successful parental participation

in a program designed to assist the parents in responding to

Steven’s needs increased. Because Steven is being raised in

a foster home, he has come to view the foster parents as his

parents and his natural parents have become insignificant.

Consequently, it is difficult for his parents to re-establish a rela-

tionship with Steven without the assistance of professionals who

are capable of assisting the parents in understanding the child’s

views and needs and the manner in which they must respond.

This is an area in which the parents have made no progress

because of their inability to work with professionals and to under-

stand Steven's situation.

This case is unusual in that there are presently four other chil-

dren in the Schoenfeld’s home. The children appear to be doing

well in a family that appears to be providing appropriate care.

This suggests that it may have been possible for the parents

to have met the reunification requirements if there had been

more cooperation between the parents and relationship between

the father and C&YS resulting in the issues leading to Steven's

removal being no more resolved today than they were at the time

of the removal.

From the outset, the father’s response to C&YS was one of

complete mistrust, an unwillingness to believe that there was

any justification for Steven’s removal, and an insistence that mat-

ters be done his way because C&YS’s methods were based on

its bureaucratic needs rather than the needs of the parents and

their children.’ C&YS caseworkers viewed the father’s responses

as a validation of their beliefs that his personality traits prevented

him from being 2 competent parent for Steven.

The Schoenfelds have not successfully completed any pro-

grams that would assist them in understanding the needs of a

ten year-old child who has lived his entire life with another family.

They have not shown any ability to following the suggestions

of any professionals with respect to their responses to Steven.

The visits to Steven Schoenfeld became more and more stressful

for Steven due to Robert Schoenfeld’s repeated defiance to CYS

caseworkers. It became so bad that Steven would not see his

natural father without crying, sleeplessness, and bedwetting.

The visits were terminated until evaluations by a clinical psy-

chologist, Dr. Anthony Mannarino, could be done to determine

1 For example, although the parents knew that C&YS required all letters and cards

to Steven to be sent through C&YS rather than directly to Steven, they insisted on

repeatedly sending cards and letters directly to Steven at his foster home. Pursuant

to C&YS directives, the foster parents refused these cards and letters.

As a result, Steven never received them. Because the letters and cards were

returned to the natural parents, they knew that their failure to follow C&YS policy

resulted in the loss of any benefit these cards and letters may have provided to Steven

and to their relationship with him. Nonetheless, they refused to abide by C&YS policy.

Although this is a relatively minor infraction, it reveals the parent’s refusal to replace

Steven's needs above their own.

their effect upon Steven. He repeatedly recommended that

Steven has psychologically and emotionally bonded to his fos-

ter parents, and shunned meeting with his natural father due

to Robert Schoenfeld’s conduct during the visits.

Three more visits were conducted to examine the relationship

Robert Schoenfeld conducted with Steven. Dr. Mannarino tes-

tified Steven did not like the visits with his father and was nervous

and upset when he was forced to see him.

On June 29, 1991, the Honorable A. Stanton Wettick entered

an order terminating the parental rights of Robert and Janice

Schoenfeid. Both parents appealed this order.

The Superior Court of Pennsylvania affirmed the trial court’s

decision. The Schoenfelds’ petitioned for allowance of appeal

to Pennsylvania Supreme Court. The Court entered an order

denying the Petition for Allowance of Appeal by order dated

March 17, 1993.

The Schoenfelds now have filed this Petition for a Writ of Cer-

tiorari to the Supreme Court of the United States.

ARGUMENTS FOR DENYING WRIT

1. THE PENNSYLVANIA SUPERIOR COURT WAS CORRECT

IN TERMINATING THE PARENTAL RIGHTS OF THE PETI-

TIONERS BECAUSE THE PROCEDURES UTILIZED WERE

BASED UPON THE WELL-SETTLED STANDARD OF ‘‘CLEAR

AND CONVINCING EVIDENCE’’ ESTABLISHED BY THE

UNITED STATES SUPREME COURT.

This Petition for Writ of Certiorari should be denied because

of the exact standard utilized by Pennsylvania in terminating the

parental rights of the Petitioners. As discussed in this brief, it

has been shown time and time again that the Schoenfelds have

failed miserably in all the elements set forth by the Pennsylva-

nia Statute 23 Pa. C.S.A. §2511(a). This clearly and convincingly

proved that the Petitioners’ parental rights warranted termination.

The goals which govern all Children and Youth Service action

7

are clearly drawn and fairly administered. It is the goal of CYS

to ensure a legally assured family which protects the child from

abuse and neglect. (55 Pennsylvania Code §3130.11.)

This basic goal allows a governmental agency to take action

that eventually may end with removal of a child from his natural

parents. This happens hundreds of times every year. It does not,

as in the Schoenfeld’s case, automatically give rise to constitu-

tional violations. Since the time of Steven Schoenfeld’s removal

from his biological parents, CYS has done everything within its

power to reunify the family. Solely due to the Schoenfeld’s

actions, this goal could not be attained. Counseling sessions,

psychological testing, therapy, visitations, medical opinions,

caseworker evaluations, and family planning services have all

been implemented in order to help the Schoenfelds. None were

effective.

As mandated by Pa. Code 55 §3130.68, visitations are legally

done once every two weeks for children in Steven’s situation.

This is done for hundreds of parents in similar circumstances

and the final result is reunification.

The fact that it failed in the Schoenfeld’s case does not invali-

date the well-established practice. In fact, it only strengthens

the position that the Schoenfelds are unable to be reunified

properly, and warrant a termination proceeding. The standard

defined by the United States Supreme Court, and utilized by

Pennsylvania is clear. As shown in the rest of this brief, the Peti-

tioners’ constitutional rights were in no way violated when their

parental rights were terminated.

ll. USING THE FIVE CRITERIA IN 23 PA. C.S.A. §2511(a)(5),

THE PENNSYLVANIA COURT DETERMINED THROUGH

CLEAR AND CONVINCING EVIDENCE, THE PARENTAL

RIGHTS OF THE PETITIONERS WARRANTED TERMINA-

TION. (i) THE STANDARD FOR TERMINATING PARENTAL

RIGHTS IS ONE OF CLEAR AND CONVINCING EVIDENCE.

The Courts have established a solid standard of proof neces-

sary for terminating parental rights. In Santosky v. Kramer, 455

U.S. 745, 102 S.Ct. 1388 (1987), this Court established that the

applicable constitutional standard for determining when paren-

tal rights can be terminated is one of ‘‘clear and convincing”’

evidence to be established by the moving party. In Santosky,

it states: -

‘‘A clear and convincing evidence standard strikes a fair bal-

ance between the rights of the natural parents and the states’

legitimate concerns.”’ Id. at 1403.

The Pennsylvania Courts supported the finding that the

Schoenfelds’ parental rights be terminated with ‘‘clear and con-

vincing evidence”’ pursuant to Section 251 1(a)(5) of the Adop-

tion Act (reproduced on page 7). CYS used no less than five

(5) comprehensive conditions to determine if Petitioners’ parental

rights should be terminated. The evidence presented to satisfy

the criterion under this Act was clear and convincing. They are:

1. THE CHILD HAS BEEN REMOVED FROM THE PARENTS’

CARE FOR A PERIOD IN EXCESS OF SIX MONTHS... Steven

James Schoenfeld was removed from the care and custody of

his parents in July 1983 and placed in temporary foster care by

a Juvenile Court order. He was declared dependent in Septem-

ber 1983 and placed in his present foster home. During the sub-

sequent eight years, Steven has never returned to the custody

of his parents. This period of time is well in excess of the six

months contemplated by the statute.

2. THE CONDITIONS WHICH LED TO THE REMOVAL. OF

THIS CHILD CONTINUE TO EXIST. . . The situation which war-

ranted the removal of Steven continues to exist. Janice and

Robert Schoenfeld have not made sufficient improvement to pre-

vent the termination of their parental rights. Services offered to

9

both Janice and Robert Schoenfeld through MH/MR counsel-

ing and the Parental Stress Center program were consistently

rejected by them. They refused to follow through with the evalu-

ation process or to engage in any sessions aimed at aiding

parental skills or identifying and working through the abuse

issues. Both Janice and Robert Schoenfeld continue to deny

any responsibility for the acts that resulted in Steven coming

into care. Spiral fractures are caused by twisting force, not blunt

trauma.

Even after the testimony and introduction of photographs

depicting Steven’s malnourished condition, both Janice and

Robert Schoenfeld failed to accept any responsibility for the con-

dition of Steven when he was taken into care. Robert Schoen-

feld has consistently shown his inability to work with CYS for

the reunification of his family. Rather than attempting to com-

municate with Steven, Robert Schoenfeld used his visits with

Steven to complain about CYS procedures, the way Steven was

dressed, the way he spoke, and the way Steven was transported

to the sessions. Robert and Janice Schoenfeld chose not to

attend to the goals set out in Family Service Plans which they

both agreed to and signed. Rather, they have spent the inter-

vening years complaining about the system, caseworkers, and

what the courts are doing to them.

The testimony of eight caseworkers (reproduced in Petitioners’

Writ, pp. 71-104) assigned to the child and the family since 1983

until present consistently maintained that the Schoenfelds failed

to comply with the stated goals of the Family Service Plans. In

addition, testimony of a clinical psychologist, Dr. Anthony Man-

narino, recommended that continued contact with the Schoen-

felds and Steven would be nothing but detrimental. The Juvenile

Court of Allegheny County and the Superior Court of Pennsy!-

vania agreed.

3. THE PARENTS CANNOT OR WILL NOT REMEDY THESE

CONDITIONS IN A REASONABLE PERIOD OF TIME... This

Court stated in Santosky that the State’s interest in finding a

child an alternate permanent home arises when it is clear that

the natural parents cannot or will not provide a normal family

10

home for the child. U.S. at 615 (quoting 50 C. Serv. Law

§384.b.1(a)(iv)).

The action of the Petitioners clearly provide they were una-

ble or unwilling to do what was necessary to provide a normal

family home for Steven James Schoenfeld. The Superior Court

of Pennsylvania determined, through the vast efforts of CYS,

the Schoenfelds failed to show any evidence of an ability to care

for their child in a normal manner.

At the factfinding stage, the goal of finding an adequate family

for a child is served by procedures which promote an accurate

determination of whether the natural parents can or will provide

a normal home. Id. at 616. The factfinding in this case was exten-

sive and comprehensive, and is the reason no constitutional

rights of the Petitioners were violated.

The evidence presented has shown that the natural parents

cannot or will not remedy the conditions leading to Steven's

removal in a reasonable period of time. Testimony indicated their

inability to follow through and successfully complete any pro-

grams necessary to improve their parenting abilities. Multiple

caseworkers testified that the natural parents were never able

to meet the stated CYS conditions necessary to return the child

to them and often failed to attend the Family Service Plan con-

ferences. The evidence of record overwhelmingly established

that this statutory condition was met.

4. THE SERVICES AND ASSISTANCE REASONABLY AVAIL-

ABLE TO THE PARENTS ARE NOT LIKELY TO REMEDY THE

CONDITIONS IN A REASONABLE PERIOD OF TIME... CYS

offered the family every conceivable program in an effort to

reunite them. None of these programs proved successful. The

programs recommended by CYS to reunify the family included

Northern Community MH/MR and Parental Stress Center. The

Schoenfelds contacted other organizations they would have pre-

ferred to become involved in, yet they either failed to complete

or were deemed inappropriate for each of those programs.

These services were implemented to ensure a stable and safe

living environment for the family and the child. CYS determined

no such environment was created.

11

In In Re: Winship, 397 U.S. 358, 370, 90 S.Ct. 1068 (1970),

it was stated the function of a standard of proof, as embodied

in the due process clause, is to determine the desire of confi-

dence our society thinks it should have in the correctness of fac-

tual conclusions for a particular type of adjudication.

Id. at 423.

This Court has determined the standard to prove factual con-

clusions for terminating parental rights is one of “‘clear and con-

vincing evidence.’’ Santosky, at 1395. Because the Schoenfelds

have given every indication over the past eight years that proper

reunification will be unsuccessful, the evidence clearly and con-

vincingly established that their parental rights warranted

termination.

The programs the Schoenfelds were given the opportunity to

utilize were found to be unsuccessful according to the Pennsyl-

vania Courts. No one thwarted their efforts to reunite, and in

fact, provided ample programs to achieve such a goal. Yet after

9 years, the parents are no closer to reunification then they were

when the child was removed in 1983. Due to this evidence, CYS

determined through the preceding four factors, that it would be

in the best interest of Steven for the parental rights of Robert

and Janice Schoenfeld to be terminated.

In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254 (1980), the

Court states the minimum requirements of the due process

clause are not diminished by the fact that the State may have

specified its own procedures that it deems adequate for deter-

mining the preconditioning to adverse official action, such as

terminating parental rights. Id at 491. See also, Logan v. Zim-

merman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 11488 (1982)

(deals with individual liberty grounded in state law, which can-

not be removed except for ‘‘cause’’).

The procedures and facts used in determining the parental

fitness of the Schoenfelds met the standards of proof established

by this Court. Every effort was made to try and help the Schoen-

felds develop parenting skills, yet they rejected every effort. In

this case, the termination of the Schoenfelds’ parental rights was

the only alternative to the scenario wholly created by their actions

12

towards CYS and inaction towards their child.

5. TERMINATION OF PARENTAL RIGHTS WILL BEST

SERVE THE NEEDS AND WELFARE AT THE CHILD.

The final requirement under Section 2511(A)(5) is if it would

best serve the needs and welfare of the child the termination

of parental rights should be implemented. It is inconceivable to

return a child to a home in which his own welfare and safety

will be in jeopardy.

Steven Schoenfeld has been denied a permanent living

environment for a period in excess of eight years. The purpose

of the Adoption Act give primary consideration to the needs and

welfare of the child. (quoting 23 Pa. C.S.A. §2511(b)). A child

such as Steven is not receiving primary consideration to his

needs and welfare if his life is in flux for a period exceeding

eight years.

The testimony shows that the relationship between Steven and

his parents is tenuous at best. There was no satisfactory evi-

dence revealed to show the relationship will advance to a stage

higher than the present one.

Because of the aforementioned situation, and the fact that the

Schoenfelds have not attempted to remedy with CYS proce-

dures, and failed the five conditions under 23 Pa. C.S.A. §2511,

they have shown clear and convincing evidence that termina-

tion of their parental rights was proper and fair.

In Lassiter v. Department of Social Services of Durham

County, 452 U.S. 35, 101 S.Ct. 2153 (1981), the Court states

the Fourteenth Amendment imposes on the State the standards

necessary to ensure that judicial proceedings, including paren-

tal terminations, are fundamentally fair. Id. at 2673. It is agree-

able to the State that high standards should be implemented

to protect parents’ interest in termination proceedings. That is

the sole reason careful, extensive procedures and steps were

taken by CYS and the Pa. State Courts. These procedures are

fair, clear and convincing.

The years of attempting to remedy the situation between the

Schoenfelds and CYS were filled with examination and proce-

dures in an attempt to reunify the family. They all failed.

13

Testimony of caseworkers, along with a clinical pyschologist,

determined that the Schoenfelds are at the stage which war-

rants the final step of terminating their parental rights. No con-

stitutional problems exist due to the time, effort, and procedural

filters set up to determine if indeed a reunification of child and

parents was possible. According to 23 Pa. C.S.A. §2511, it was

not. These clear and fair procedures produced only convincing

evidence that the termination of the parental rights of the

Schoenfelds was warranted.

lf this situation is permitted to continue it would only harm and

frustrate this child. The Superior Court of Pennsylvania was

thoroughly fair in determining through the evidence in this case

that:

When the unity of the family cannot be preserved, despite the

efforts of private county and state assistance and support, the

best interests of the child is best served by freeing the child for

adoption and providing a home which meets the requirements

for proper parental care.

In Re: Angry, 522 A.2d 73, 477 P.A. 322, 383 A.2d 1228 (1978).

it has clearly been proven that the Schoenfelds’ parental rights

warranted termination. No arbitrary decision was made by CYS

or the Pennsylvania Courts. It would clearly be in the best

interests of Steven to have his parental contact with Robert and

Janice Schoenfeld terminated.

The Petitioners do not deny the proper standard for termina-

tion of parental rights is ‘‘clear and convincing evidence’, as

established in Santosky. However, the Petitioners do argue, in

an inappropriate manner, their due process was denied (Peti-

tioners Writ, pgs. 22-29). The Petitioner’s Writ cites cases that

are irrelevant to current applications of parental terminations.

Petitioners compare the instant case to various Cases, which

are not analogous to current standards of due process concern-

ing parental terminations.

Although the Petitioners’ cases deal with state intervention

into the parent-child relationship, none of the cases are directly

applicable to the termination of parental rights of unfit parents.

They are unnecessarily cited in this case.

14

The standard for terminating parental rights has been well-

established since Santosky. The Pennsylvania Superior Court

followed the appropriate law and their decision is supported by

the facts. The Petitioners have raised no new constitutional

challenges to terminating parental rights. Therefore, Respon-

dents urge that this Petition for Writ of Certiorari be denied.

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CONCLUSION

For the foregoing reasons, Petition for the Writ of Certiorari

should be denied.

Respectfully submitted,

Vallee

IRA WEISS

w en

Swe z L i A —

ceoAce M. JANOCSKO

Deputy County Solicitor

iat - i

LAURA J. WHITEMAN

Assistant County Solicitor

Attorneys for Respondents

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