Decision of Judges Panella and Gantman Strikes the Right Balance

The Superior Court of Pennsylvania issued a decision in the case IN RE: S.H., O.H., and N.H., Docket No. 2209 EDA 2011. The three judge panel (Judge Stevens dissenting) ruled that a father has the ability to show he should have custody of his children when it is in their best interests, even when an order of "permanent custody" has been issued in the case under the Juvenile Act.

In this case, there had been dependency proceedings and a Juvenile Court had previously issued an order of “permanent custody” under the Juvenile Act to the grandmother. The Court held, however, because there had  not been a termination of parental rights, a parent should still have the ability to come back to court to show a change of circumstances and that it is in the child’s best interest to come back to join their family unit.

The effect of the decision is to reaffirm under Pennsylvania law that unless parental rights have been terminated by a court, a parent continues to have the ability to demonstrate that he or she should be reunited with their child.

Under Pennsylvania law, courts are to determine what is in the best interest of the child. The appellant had urged the court to rule that once an order for permanent legal custody was entered under the Juvenile Act, a parent could no longer come back to demonstrate that circumstances had changed and that the best interest of the child were actually to be reunited with the parent.

Pennsylvania courts do have the power to involuntarily terminate parental rights under several legal grounds if the parent’s conduct or incapacity warrants it, and termination meets the needs and welfare of the child.  In such a case, the parent would not be able to come back later to claim a change of circumstances justified transferring custody of a child to that parent.

The court has affirmed in this case that unless parental rights have been terminated, a parent should continue to have the ability, when circumstances have changed, to demonstrate the best interests of the child would be served by reuniting the parent and child, or by increased contact between the parent and child, even if permanent legal custody had previously been awarded to someone else.

Sam Milkes, Executive Director of the Pennsylvania Legal Aid Network, commented, "Legal aid programs represent thousands of parents each year in cases where the best interests of the child must be determined. Who should have custody? Should there be partial custody, or visitation for a parent? Some parents who have made mistakes in the past, or who have been unable to properly care for their child, and were therefore denied custody of their child have later been able to turn their lives around. When this occurs, the best interests of the child are often be best served by reunion of the parent and child."

Milkes went on to state that, "The court today has reaffirmed that unless parental rights have been terminated, a parent should always have the ability to ask a court to determine whether circumstances had changed and whether the best interests of the child were served by a reunion of the parent and child."

An Amicus brief was filed in this case by Community Legal Services, Philadelphia Legal Assistance and the Juvenile Justice Project of the Allegheny County Bar Foundation, presenting legal argument as to why the Court should rule the way it did.