Children's Rights
Chronicle
Newsletter of the Juvenile Law Center
Volume Eleven, Number One, 1992-93
THE JUVENILE DEATH PENALTY IN PENNSYLVANIA
By Victor L. Streib
The following article on the death penalty for juveniles in Pennsylvania is adapted from an affidavit
submitted in the Erie County case of Commonwealth v. Schroat. Victor L. Streib, the author, is a Professor of Law
at Cleveland State University and a member in good standing of the bar of the State of Indiana and of the United
States Supreme Court. He has written extensively on the death penalty.
This affidavit covers the history and current use of
the death penalty for crimes committed while age
seventeen or younger throughout the United States but
particularly in the Commonwealth of Pennsylvania.
. Execution of juvenile offenders in
Pennsylvania ended in 1931, very few
juveniles are given the death sentence today,
and those that are, are regularly reversed on
appeal."
The contents of this affidavit are based upon
information accumulated by this affiant since 1975 from
affiant’s research on the juvenile death penalty.
The results of affiant’s seventeen-year research
project are published in numerous academic and
professional journal articles and most generally in
VICTOR L. STREIB, DEATH PENALTY FOR JUVENILES
(Indiana University press, 1987; second edition in
progress). Affiant’s other recent publications on this
topic include "Perspectives on the Juvenile Death
penalty in the 1990’s," in CHILD PARENT AND STATE:
LAW AND POLICY READER (Philadelphia: University of
Pennsylvania Law Review, 1992 (in press)); "Juveniles’
Contemplations of Their Impending Executions," in
FACING THE DEATH PENALTY: ESSAYS ON A CRUEL
AND UNUSUAL PUNISHMENT 38 (M. Radelet, ed.)
(Philadelphia: Temple University Press, 1989); and
“Minimum Age _ considerations for New York’s
Impendent Death penalty," 54 ALBANY L. REV. 625
(1990). Affiant’s research has been relied upon
repeatedly by a wide variety of governmental agencies.
See, e.g., Thompson v. Oklahoma,487 U.S. 815, 828
n.27, 832 ns. 36 & 37 (1988) (plurality opinion by
Justice Stevens); and Stanford v. Kentucky, 492 U.S.
361, 368, 373 (1989) (plurality opinion by Justice
Scalia). This affiant has presented various facets of
this research to Committees of the United States
Senate, the United States House of Representatives,
and several state legislatures. Affiant’s research has
also been relied upon by the Pennsylvania legislature
in considering the bill before it to establish the
minimum age of eighteen for the death perany in
Pennsylvania
For this focussed report on Pennsylvania, the
affiant has gone back to his files on Pennsylvania
cases both to verify previously reported Pennsylvania
information and to add information not published
anywhere previously. The information reported and
analyzed herein is current as of October 15, 1992, and
as complete and accurate as this affiant’s research can
provide. No other Pennsylvania cases are known to
this affiant other than the ones reported and described
in this report.
FINDINGS
The findings of this research are listed in summary
form with a brief explanation following and expanding
upon each summary point made. Following roughly a
Docket...
Federal District Court Update
Commonwealth Court Update
PA. Superior Court Update
chronological format, the findings first report data as to
past executions, then as to recent sentences, and
finally as to those currently under sentences of death.
The conclusion, flowing unavoidably from these
findings, is that the death penalty in Pennsylvania for
crimes committed by persons under age eighteen at
the time of their crimes is now and always has been
extremely rare.
EXECUTIONS
Of the 18,400 executions in American history
from earliest colonial times, only 336 (2%) have
been documented for crimes committed while under
age eighteen.
Executions of juvenile have always been rare
throughout American history, accounting for less than
2% of all executions. These rare executions began
with the hanging of Thomas Graunger in Plymouth
Colony, Massachusetts, in 1642 and have continued
up through the lethal injection of Jonnny Frank Garrett
in Texas on February 11, 1992.
Of these 336 very young offenders, only about
one-quarter of them were white but almost all were
male. For the victims in these cases, about 90% were
white and about 60% were male. The typical pattern
in these cases is the black boy of seventeen who
murders a white male victim, or rapes and/or murders
a white female victim.
Of the 182 executions in the current era (1973 -
present), only five (2.7%) have been of juvenile
offenders.
Actual execution of juvenile offenders has
remained rare through to modern times. Table One
(Page 4) lists the recent executions of juvenile
offenders.
Note that all of these modern juvenile executions
have occurred in the South, three being in Texas
alone. This dominance of the southern states in
juvenile executions was also true for the older cases
and shows no signs of waning.
Of the 1,073 executions in Pennsylvania’s
history, only eight (1%) have been documented for
crimes committed while under age eighteen.
Pennsylvania’s experience with the execution of
such very young offenders has been even rarer than
the national pattern. Table Two (Page 4) sketches
some key facts about the relevant Pennsylvania
executions. These eight documented juvenile
executions began in 1722 and ended in 1931.
These eight juvenile executions in Pennsylvania all
involved the crime of murder. Half occurred prior to
the beginning of the twentieth century, and the last
occurred in 1931, over sixty-one years ago. All but
one involved seventeen-year-old offenders, the age of
the defendant in this case. In essence, this means
that, were the defendant to be executed for his crime,
only one of Pennsylvania's 1,073 executions would
have been of a younger offender (the 1909 execution
of Stanley Marcavich).
Of the 135 executions in Pennsylvania since the
1931 execution of Alexander Williams, none were for
crimes committed while under age eighteen.
Following the 1931 execution of Alexander
Williams (Table Two Page 4), the Commonwealth of
Pennsylvania executed 135 additional persons, ending
with the execution of Elmo Smith on April 2, 1962.
None were under age eighteen at the times of their
crimes.
This remarkable fading away of the juvenile death
penalty in Pennsylvania did not result from a new
Statutory provision or court ruling. The Pennsylvania
Capital punishment system, while continuing
aggressively to convict, sentence, and execute
offenders, simply and quietly stopped this practice as
it affected juveniles. Despite a handful of juvenile
death sentences in Pennsylvania in the current era
(see next section), the Commonwealth in fact ended its
two centuries of actual executions for juvenile crimes
in 1931.
CHILDREN’S RIGHTS CHRONICLE
©1992 Juvenile Law Center
Subscriptions are available at the annual rate of $20.
Editorial submissions are welcome, deadline is the 15th of
the month. Published 6 times yearly by Juvenile Law
Center, 801 Arch Street, Sixth Floor, Philadelphia,
Pennsylvania 19107; (215) 625-0551; In PA: (800) 875-
8887. The Juvenile Law Center (JLC), a non-profit, tax-
exempt, public interest law firm, has been representing
children in Philadelphia and throughout the
Commonwealth since 1975. JLC Staff: Robert G.
Schwartz, Esq., Executive Director; Samuel B. Magdovitz,
Esq.; Associate Director; Emily Buss, Esq.; Sarah
Nussbaum, Esq.; Jacquline Duby, Esq.; Joni McCray,
Case Manager/Paralegal; Elana Bluestine, Paralegal;
Tonya Connor, MSW,; Johnsie A. Dean, Executive
Secretary; Joann Viola, Operations Manager.
Children’s Rights Chronicle
Of the approximately 4, 676 death sentences
nationwide, only 112 (2%) were for crimes
committed while under age eighteen.
The Furman decision in mid-1972 effectively ended
the death penalty at that time nationwide. However,
states began almost immediately to enact new,
apparently valid death penalty statutes. By January 1,
1973, sentencing of offenders began to occur at an
accelerating pace and has continued through the
present time (October 15, 1992). Table Three (Page 4)
arrays these data by year.
During these nearly two decades, approximately
4,676 death sentences have been imposed throughout
the United States. Only 112 of those sentences, less
than 2.4%, have been for juvenile crimes.
During this same period, only five juvenile death
sentences have been imposed in Pennsylvania.
While the deadline for submitting this affidavit did
not permit thorough research in to the total number of
death sentences handed down in Pennsylvania during
this period, it certainly has been several hundred.
Table Four (Page 5) lists the five instances of juvenile
death sentences in Pennsylvania since 1973. Like the
rest of the nation, only about 2% of Pennsylvania death
sentences are being imposed for juvenile crimes.
Even with these very small numbers, a declining
trend is apparent from the period of the mid-1980’s.
Only two such sentences have been imposed in the
past six years.
CURRENTLY ON DEATH ROW, OCTOBER 15, 1992
Only thirty-three (1%) of the approximately 2,650
persons now on death row nationwide were under
age eighteen at the time of their crimes.
From the approximately 4,676 each death
sentences imposed during the current era, only about
2,650 (57%) remain under sentences of death as of
October 15, 1992. And, of the 112 death sentences
imposed for juvenile crimes, only thirty-three (29%)
remain on death row. These thirty-three death row
inmates constitute slightly over 1% of the total death
row population.
The fact that these very young offenders
constitute such a minuscule portion of the total death
row population is a result of two major factors. First,
as discussed above, the sentencing rate nationally for
such offenders has been extremely low, only 2.4%
Volume Eleven, Number One, 1992-93
(112/4,676) of all death sentences. Second, even for
those very few receiving a juvenile death sentence, the
reversal rate on appeal and collateral proceedings has
been extremely high (94% for cases finally resolved).
Only three of the approximately 150 persons
now on death row in Pennsylvania were under age
eighteen at the time of their crimes.
Of these five juvenile death sentences in
Pennsylvania in the past decade, only three of the
offenders remain on death row. Table Five (Page 5)
list these offenders and some brief facts about their
cases. These three remaining juvenile offenders
constitute only 2% of Pennsylvania’s current death row
population of about 150 prisoners.
CONCLUSION
Execution of juvenile offenders in Pennsylvania
ended in 1931, very few juveniles are given the death
sentence today, and those that are, are regularly
reversed on appeal.
The findings from this research are clear.
Pennsylvania has abolished the practice of actually
executing juvenile offenders for their crimes, with the
last such execution being during herbert Hoover’s term
of office (1931). The manner in which this abolition
has taken place is_ indicative of extraordinarily
widespread concurrence in this abolition. It did not
come from a singular act of the legislature or ruling by
a court. With neither mandate nor fanfare, actual
execution of such very young offenders just faded
away in 1931, never to reemerge.
Against this universal Commonwealth practice
over sixty-one years, the five recent juvenile death
sentences in Pennsylvania must be seen as
aberrations. That they are regularly reversed on
appeal is to be expected, as they go against the grain
of the long-standing Commonwealth practice. In
practice if not in law, the death penalty for juveniles in
Pennsylvania has disappeared with only occasional
vestiges of it still to be found.
[EDITOR'S NOTE: The Pennsylvania General Assembly
failed to act during the last session on H.B. 1128 (PN
1278), which would have amended Title 42, §9711, by
prohibiting the imposition of the death penalty on
person who were less than 18 at the time of the
commission of the offense.]
Date of
Name Execution
Place of
TABLE ONE
EXECUTIONS OF JUVENILE OFFENDERS.
JANUARY 1, 1973 THROUGH OCTOBER 15, 1992
Execution Race
Age at Age at
Crime Execution
Charles Rumbaugh 9/11/1985 Texas
J. Terry Roach 1/10/1986 S. Car.
Jay Pinkerton 5/15/1986 Texas
Dalton Prejean 5/18/1990 Louisiana
Johnny Garrett 2/11/1992 Texas
White 17 28
White 17 25
White 17 24
Black 17 30
White 17 28
££: =
TABLE TWO
DOCUMENTED EXECUTIONS IN PENNSYLVANIA FOR
CRIMES COMMITTED WHILE UNDER AGE EIGHTEEN
ate of Name of
Execution Offender
8/15/1722 Battin, William
10/16/1784 Burke, James
9/9/1853 Evans, Reese
8/22/1899 Stout, Lewellyn
7/14/1908 Sergi, Rosario
11/18/1909 Marcavich, Stanley
12/4/1916 Digeso, Dominick
6/8/1931 Williams, Alexander
Age at
Time of Race of
Crime Offender
17 White
17 White
7 White
17 White
17 White
17 White
5 A f White
17 Black
eo X
TABLE THREE
DEATH SENTENCES IMPOSED FOR CRIMES COMMITTED
AS JUVENILES, JANUARY 1, 1972 TO OCTOBER, 1992
Total
Death
Year Sentences*
1973 42
1974 167
1975 322
1976 249
1977 159
Juvenile Death
Sentences
(Age at Crime)
45 16 17 Totals
ot Cok ok CS
OohOO
NOB NM O
WOwoOW Oo
Juvenile
Sentences
as Portion
of Total
Sentences
0.0%
1.8%
2.8%
1.2%
6.9%
Children’s Rights Chronicle
TABLE THREE (CONT..)
1978 209 0:4. rd 3.3%
1979 172 | et) Sag 4 2.3%
: @ 1980 198 Ae 6 EY a 2.0%
1981 245 ae 8 3.3%
1982 264 G.4. 12 14 5.3%
1983 259 Oo: 4. <3 7 2.7%
1984 280 2..0 Us 6 2.1%
1985 273 + 1-4 6 2.2%
1986 297 ee es 7 2.4%
1987 299 y ee | ae 2 0.7%
1988 296 820.5 5 1.7%
1989 251 0. 0.49 1 0.4%
1990 244 13 4 8 3.3%
1991 250" oe ee 5 2.0%
1992 200** 0. 8.2 2 1.0%
Totals: 4,676** 1.20 40. 412 2.4%
* Source of data for total death sentences:
U.S. Dept. Justice, SOURCEBOOK OF CRIMINAL
JUSTICE STATISTICS 1990 (1991) at 677.
** Estimates
es: & oe
TABLE FOUR
PENNSYLVANIA DEATH SENTENCES IMPOSED FOR
CRIMES COMMITTED WHILE UNDER AGE EIGHTEEN,
: @ JANUARY 1, 1973 TO OCTOBER 15, 1992
Name of Age at Ultimate
Year Offender Crime Race Disposition
1983 Hughes, Kevin 16 Black Now on death row
1984 Aulisio, Joseph 15 White Reversed in 1987
1985 Williams, Raymond 17 Black Reversed in 1987
1986 Lee, Percy 17 Black Now on death row
1990 Blout, John 17 Black Now on death row
°° =
TABLE FIVE
PERSONS IN PENNSYLVANIA UNDER SENTENCES OF DEATH FOR
CRIMES COMMITTED WHILE UNDER AGE EIGHTEEN, OCTOBER 15, 1992
Blout, John: Black male; 17 at crime and now age 20 (DOB: 5/27/72; murder of black males ages 18 and 19
in Philadelphia on 9/28/89; sentenced on 11/9/90.
Hughes, Kevin: Black male; 16 at crime and now age 30 (DOB: 3/7/62; rape and murder of black female age
9 in Philadelphia on 3/1/79; sentenced on 10/27/83.
Lee, Percy: Black male; 17 at crime and now age 24; murder of black female adult and black female teenager
in Philadelphia on 2/26/86; sentenced on 1/28/88.
| Volume Eleven, Number One, 1992-93 a
Courts Confront TPR
of Unwed Fathers
This fall several courts have confronted the
question of Termination of Parental Rights of
unwed fathers who may or may not know of
their parenthood.
On October 27, 1992, the New York Court of
Appeals in Robert O. v. Russell K., No. 191, 61
L.W. 2290, rejected the due process claims of a
man who did not know that he had fathered a
child until a year after the child’s adoption.
Plaintiff's claim falls outside the test of /n re
Raquel Marie X., 449 N.YS2d 855, 59 LW 2062
(1990), which held that an unwed father of a
newborn has a right to veto an adoption if he
manifests a willingness to assume full Custody.
Here the father did not acto promptly enough to
overcome the state’s strong interest in prompt
and certain adoption procedures. Even though
he acted promptly after becoming aware of the
child, plaintiff failed to find out about his
Qgirlfriend’s pregnancy. His claim thus fails,
since "promptness is measured in terms of the
baby’s life, not by the onset of the father’s
awareness."
On November 30, 1992, the United States
Supreme Court declined to review a Washington
D.C. lower court holding that permitted a
putative biological father to reopen a final
decree of adoption. The Court let stand /n re
MNM, DC CtApp. 605 A.2d 921 (1992), which
held that the denial of notice to the biological
father of the pendency of adoption proceedings
cured his failure to intervene within the one-year
limitations period governing attempts to
invalidate a final adoption decree.
FEDERAL DISTRICT
COURT UPDATE
INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Continuum of Services State-Wide
Cordero by Bates v. Pennsylvania Dept. of Educ., 795
F.Supp. 1352 (M.D.Pa. 1992). Opinion by Rambo, D.J.:
A class action was brought against the Commonwealth
and the Department of Education under the Individuals
with Disabilities Education Act ("IDEA," or “the Act"),
challenging the design of the approved private school
component of Pennsylvania’s special education
system. In particular, plaintiffs (through counsel,
Education Law Center) challenged the state’s failure to
approve sufficient schools so that students anywhere
in the state could be promptly placed. The plaintiff
class was composed of all Pennsylvania children with
disabilities who cannot be educated in a public
education setting and have been waiting more than 30
days for an appropriate educational placement.
The plaintiffs moved for summary judgment on four
Claims: (1) that because they did not have access to
appropriate placements, disabled children were not
being placed in suitable educational settings tailored
to the individual child’s needs without long delays,
sometimes up to six months; (2) that because the
system provides an insufficient continuum of services
and placements, children were being placed in more
restrictive environments than necessary; (3) that there
were insufficient alternative placements for children
available, especially in less populated areas of the
state, resulting in overly restrictive placements; and (4)
that the state and the Department of Education have
failed to identify and correct systemic inadequacies in
order to assure that services are being adequately
delivered to disabled children, or to correct violations
if they occur.
The court rejected the state’s argument that
responsibility lay with local school districts. In granting
the motion for summary judgment and injunctive relief,
the court said that IDEA imposes “on the state an
overarching responsibility to ensure that the rights
created by the statute are protected. . .". The court
observed that “the roots of this state of affairs may be
traced to the design of the system itself... ."
*
Children’s Rights Chronicle
2
COMMONWEALTH COURT
UPDATE
CHILD WELFARE
Expungement of Child Abuse Records
Beoford County Children and Youth Services v.
Department of Public Welfare, __ Pa.Cmwlth.__, 613
A.2d 48 (1992). Opinion by Silvestri, S.J.:
Substantial evidence supported DPW’s_ order
expunging the report of an “indicated” child abuse
report. (An "indicated" report is a report under the
Child Protective Services Law that the county children
and youth agency determines to be supported by
substantial evidence. 23 Pa.C.S. § 6303.)
The case involved mother’s allegation of sexual abuse
by father during a weekend visit. Even though the
daughter was nine, she was not called to testify before
the hearing officer, nor were videotapes of her
interviews with professionals introduced. The hearing
officer found credible the father’s testimony and that of
his witnesses, who noted that the father had little, if
any, Opportunity to be alone with his daughter. The
Court affirms, deferring on appeal to the factfinder, and
giving the party “in whose favor the appealed decision
was rendered the benefit of all
reasonable and logical inferences that can be drawn
from the . . . evidence."
In addition, the hearing officer did not err in refusing to
admit hearsay testimony when the daughter was nine
and available, and when videotapes were available.
The hearing officer did not err in distinguishing this
case from L.W.B. v. Sosnowski, 117 Pa.Cmwith. 120,
543 A.2d 1241 (1988), which permitted hearsay in the
expungement case involving a three-year-old victim of
sexual abuse.
CHILD ABUSE
Timing of “Indicated Report"
Cumberland County CYS v. DPW, __ Pa.Cmwlth._,
611 A.2d 1339 (1992). Opinion by Craig, P.J.:
The Court rejects a father’s challenge to an "indicated"
report of sexual abuse. The father claimed that the
“indicated" finding was untimely, because it was made
more than 60 days from the time the child abuse
report was filed, even though it was made less than 60
days from the time that he was identified as the
perpetrator.
Volume Eleven, Number One, 1992-93
The Child Protective Services Law, 23 Pa.C.s.
§§6368(a) and (c), requires that an investigation of a
report of suspected child abuse must start within 24
hours; that the agency shall determine whether the
report is indicated or unfounded within 30 days; and
that if within 60 days of the initial report no
determination is made by either CYS or DPW then the
report shall be considered unfounded and_ all
information identifying the subject shall be expunged
within 12 months. 23 Pa.C.S. §6337(b).
The Court held that the 60 day period starts to run
only after a report of suspected child abuse by an
identified perpetrator is filed. The Court noted that to
impose a time limit on investigation before a suspected
abuser has even been identified would encourage
hasty investigations by social service agencies. “The
time limits prescribed by the statute were obviously
intended for the protection of the child, not to shield
the alleged abuser."
PA. SUPERIOR
COURT UPDATE
CUSTODY
Presumptive Paternity of Child Born During
Marriage
Coco v. Vandergrift, __PaSuper.__, 611 A.2d 299
(1992). Opinion by Hoffman, J.:
Putative father filed a complaint seeking partial custody
of a child born during the marriage of the mother to
another man. Trial court dismissed without a hearing,
and putative father appealed. He argued that the
husband had not have access to the mother, and that
blood testing under the Uniform Act on Blood Tests to
Determine Paternity, 42 Pa.C.S.A. §6131-31 would
reveal that he was the father, and the mother’s
husband was not.
The Court dismissed the appeal, citing John M. v.
Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert.
denied, U.S. , 111 S.Ct. 140, 112 L.Ed.2d 107
(1990). In that case, which had very similar facts, the
Court held that a child conceived and born during
marriage is presumed to be the child of the mother’s
husband; that this is one of the strongest
presumptions in the law; and that a putative father
seeking custody or visitation could not compel blood
testing to rebut the presumption of husband’s paternity
if mother, child, and husband have been living together
as a family and husband has assumed parental
responsibility.
The presumption of a husband's paternity in this
situation is “irrebuttable" by a third party standing
outside the marital relationship. Thus, a hearing would
be superfluous.
TERMINATION OF PARENTAL RIGHTS
Parents’ Ability to Remedy Conditions
In re adoption of Steven S. ___ Pa.Super.__, 612 A.2d
465 (1992). Opinion by Rowley, P.J.:
The Court affirms the termination of the rights of both
parents to their eight-year-old son.
Steven S. was removed from home three months after
birth after having suffered a broken arm and later
being found in an extremely emaciated condition. He
was placed in foster care for eight years, during which
time his father had an antagonistic relationship with
Children and Youth Services. The father also refused
to participate in required parenting skills sessions or to
undergo mental health evaluations. The case was
unusual because four other children were living at
home with the parents, apparentally doing well.
The foster parents wished to adopt. The Children and
Youth Agency’s petition for termination of parental
rights, based on 23 Pa.C.S. §2511(a)(5)("that the
conditions which led to the removal of the child
continue to exist, and the parents cannot or will not
remedy the conditions within a reasonable period of
time") was granted.
The Superior Court agreed that the agency’s
the parents refusal to work with professionals led to an
atmosphere of distrust and repeated delays in
attempting reunification. Caseworkers believed that
the personality traits and denial of family problems
which led to the original incidents were still present,
and therefore they could not recommend Steven’s
return. The Court found that both the agency and the
parents had an ‘affirmative duty" to promote
reunification, and that at a minimum, the parents
should have shown a willingness to cooperate with the
agency.
The parents also asserted that the trial court
improperly considered the psychological “bonding"
between Steven and his foster parents, which had
been rejected as a presumption in In re Donna W., 325
Pa.Super. 39, 472 A.2d 635 (1984)(en banc), but the
Court concluded that the trial court appropriately
considered the child’s bonding as part of its finding
that termination would best serve the needs and
welfare of the child.
reunification requirements were reasonable, and that.
Judge Cirillo, dissenting, would have found that the
agency failed to prove grounds for termination. In
particular, he blasts the use of termination as the
agency’s response to the father’s antagonism toward
the bureaucracy.
Denial of Sexual Abuse Insufficient for TPR
In re Matsock, __PaSuper. _, 611 A.2d 737 (1992).
Opinion by Cirillo, J.:
A father was accused of sexually abusing his 5-year-
old daughter, and investigation revealed that while she
had lacerations on her vulva, they were not specifically
linked to the father. Father, mother and daughter all
denied the charges, and no other evidence of abuse
was found. The home was also found to be dirty and
cold (conditions that were later remedied), so the state
police removed all seven of the Matsock’s children and
they were placed in foster care. The police later
declined to press charges against the father.
CYS and the court required the father to undergo
counseling as a "sex offender“ as well as participate in
parenting classes. Although he attended regularly, he
steadfastly denied abusing his daughter. Less than
four months later, CYS petitioned for termination of
father’s parental rights under Pa.C.S. §2511(a)(5) on
the grounds that “the conditions which led to the
removal of the children continue to exist and the
parent cannot or will not remedy those conditions
within a reasonable period of time." CYS based its
recommendation on the fact that the father was
terminated from counseling for lack of cooperation,
specifically for being "in denial" by refusing to admit
sexually abusing his daughter.
The lower court granted the termination of father’s
rights in order for CYS to concentrate on improving the
parental skills of the mother. Later, CYS petitioned for
termination of both parents’ rights, because by
supporting her husband’s innocence of the charge of
sexual abuse, the mother was not acting as an
advocate for her children. The lower court held that it
would terminate mother’s parental rights unless set up
a separate domicile with her children apart from her
husband. Meanwhile, three of the children remained
in foster care. Both parents appealed.
The Court reverses, holding that under the “clear and
convincing evidence" standard, there was insufficient
basis for terminating parental rights. Here that
standard was not met, because there was insufficient
evidence to link the father with sexual abuse. Although
the parents’ willingly cooperated with’ the
recommended treatment, other than to admit guilt, they
were terminated from the treatment program and that
Children’s Rights Chronicle
ADIN ERT ERNE EINE NE ASN Ne
Siac nec ttaaeanttlO Oe
was the underlying basis for termination of parental
rights.
The Court also held that the lower court did not
adequately consider the needs and welfare of the
children as required by §2511(a)(5), before ordering
termination. Here, the Court found that the needs and
welfare of the children would not best be served by the
termination of parental rights.
CRIMINAL LAW
Child’s Testimony
Commonwealth v. Preston, __ Pa.Super. _, 613 A.zd
603 (1992). Opinion by Rowley, P.J.:
Step-father appealed conviction for rape of his six-year-
old step-daughter. Testimony of doctor, social worker
and police officer of six-year-old’s of their interviews
with her was properly admitted as prior consistent
statements of the complainant, who was present in
court and available for cross-examination.
DELINQUENCY
Suppression of Evidence
In the Interest of Wilks, __ Pa.‘Super.__, 613 A.2d 577
(1992). Opinion by Johnson, J.:
Court affirms suppression of evidence in drug case, in
which search warrant failed to describe premises to be
searched with sufficient particularity. The warrant
authorized search of the second floor of a building
which had two apartments. The search as invalid
because the warrant failed to state which apartment
was to be searched.
DEPENDENCY
Effective Assistance of Counsel
In re S.M., __PaSuper.__, 614 A.2d 312 (1992).
Opinion by Beck, J.:
Parents appealed finding of dependency and
continued placement of their 15-year-old son, who
testified that on several occasions his father hit him,
and that his home life was unbearable. The son had
also been experiencing serious disciplinary and
academic problems at school.
The Court first finds that there was both "clear and
convincing" evidence to support the adjudication of
Volume Eleven, Number One, 1992-93
v
dependency, and there was evidence to support the
“clear necessity" for placement out of home.
The Court then revisits the issue of effectiveness of
parents’ counsel, an issue which was left unresolved
by /n the Matter of J.P., 393 Pa.Super. 1, 573 A.2d
1057 (1990)(en banc). The J.P. Court had split
between those who urged adoption of a “fundamental
fairness" standard, and those who wanted to adopt a
standard for ineffectiveness similar to that of the
criminal law.
In order to balance the interests of the child with the
rights of the parents, the Court adopts a "heightened"
version of the criminal law standard, requiring the
parent to make a "strong showing" of ineffectiveness of
counsel. “Under this heightened test the parent must
come forward with evidence that indicates to a high
degree of likelihood that but for an unprofessional error
on the part of counsel, the child would not have been
found to be dependent."
Applying this standard, the Court rejects the parents’
claim of counsel’s ineffectiveness, including their claim
that he had failed to devote sufficient time to preparing
for the dependency hearing.
Judge Johnson, concurring and dissenting, would hold
that the concept of ineffectiveness of parents’ counsel
has no place in a civil dependency proceeding.
UPCOMING CONFERENCE
URBAN YOUTH AND THE JUVENILE JUSTICE
SYSTEM: CRISIS OF MINORITY OVER-
REPRESENTATION
JANUARY 13-14, 1993
LOCATION: RITTER HALL,
TEMPLE UNIVERSITY, PHILADELPHIA
CONFERENCE FEE: $100
INFORMATION: SHARON HAINES,
CENTER FOR SOCIAL POLICY AND
COMMUNITY DEVELOPMENT,
TEMPLE UNIVERSITY, (215) 787-7491
JLC RESOURCES
The Juvenile Law Center wishes to highlight several
of its resources aimed at effecting constructive change
in the Pennsylvania child welfare system:
1)
A Guide to Judicial Decisions Affecting Dependent
Children: A Pennsylvania Judicial Deskbook
(Second Edition) This scholarly resource addresses
Pennsylvania law affecting children, both legislative
and judicial. While written for Pennsylvania judges,
this book is useful for any lawyer practicing in the
child abuse and negiect (dependency) area. This
deskbook begins with an introduction addressing
the Adoption Assistance and Child We!fare Act, P.L.
96-272, aimed at preventing the unnecessary
placement of children in foster care. ($21.95)
includes book rate postage and handling).
Child Abuse and the Law (3rd Edition). This
informative, "nuts and bolts" manual seeks to
familiarize both the professional and the lay reader
with the laws and regulations addressing child
abuse and neglect. ($2.50 + postage & handling)
Toll-free telephone number in Pennsylvania for any
information relating to the rights of children.
(800- 875-8878).
Juvenile Law Center
801 Arch Street, Sixth Floor
Philadelphia, Pennsylvania 19107
(215) 625-0551; in PA (800) 875-8887
Children’s Rights Chronicle
To become a subscriber, call (800) 875-8887 or
mail in this coupon with payment.
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