In the recent case of In re S.J., 584 EDA 2012, heard by the Pennsylvania Superior Court, the court implicitly ruled that "permanent legal custody" in a child dependency case does not really mean permanent. Dependency practitioners should keep this nuanced definition of "permanent" in mind when pursuing permanent legal custody of children.

In S.J., the Department of Human Services (DHS) filed a petition for a goal change with regard to the child at issue. Specifically, the DHS had ruled out reunification with the father, as the father had not been involved with the case since its inception and had not visited the child or contacted the DHS. Furthermore, the DHS did not believe adoption by the foster mother to be a viable option, as the biological mother still had a bond with the child and the foster mother did not want to adopt. As a result, the DHS advanced the position that the foster mother should be granted permanent legal custody.

Meanwhile, the biological mother testified that she was currently being rehabilitated for drug use and would continue rehabilitation for about a year-and-a-half more, which would preclude custody of the child over that time. It is notable that the biological mother did not contest DHS’s position that the foster mother should receive permanent legal custody.

The child advocate, the attorney representing the child, took exception to DHS’s pursuit of the foster mother’s permanent legal custody when she learned, through the biological mother’s testimony, that the biological mother was advised by her attorney that she could file for custody when she believed she was ready for it. As a result, the child advocate objected to granting permanent legal custody to the foster mother.

The child advocate did not believe granting the foster mother permanent legal custody to be in the best interests of the child because, as evidenced by the biological mother’s intention to pursue custody in the future, the permanent legal custody could, in fact, be something much less than permanent.

The child advocate argued that pursuing permanent legal custody is a rather litigious undertaking, involving several hearing dates over a long period of time, sending the child’s life into upheaval. The child advocate was especially sensitive to the fact that after all of the upheaval to secure permanent legal custody, the biological mother could simply file for custody in family court, and undermine the permanent legal custody placement, rendering all of the upheaval pointless. Over the child advocate’s objections, the trial court granted the foster mother permanent legal custody; the child advocate appealed this decision.

In the appeal, the child advocate argued that the plain meaning of the word "permanent" in the underlying statute, 42 Pa.C.S.A. Section 6351, is as defined by any English dictionary, which is to say something perpetual and unchanging. As a result, the child advocate argued that once permanent legal custody is granted, it forecloses a parallel action for custody in family court. Once the permanent legal custody is granted, the child advocate argued, the biological mother could not file a motion to vacate it, but must again have the child declared a dependent. To that end, per the child advocate, the trial court ought not have ruled out adoption for the child as there was a lack of evidence regarding the child’s bond with the foster mother. Ultimately, the child advocate argued that the trial court’s decision was not in the child’s best interests.

When rendering its decision, the Superior Court ruled that the trial court did not abuse its discretion, and that the trial court did, in fact, consider the child’s best interests. The court found that the trial court found credible evidence of the safe and caring environment the foster mother provided the child, and placement with her certainly benefits the child. Indeed, the Superior Court ruled that the trial court thoroughly reviewed all of the evidence and its ruling was consistent with the same.

The primary thrust of the child advocate’s argument centered on the biological mother’s indication that she intended to pursue custody at some point in the future. The court refused to entertain any speculation as to the future possible actions of the biological mother. Indeed, the court noted that the biological mother may never pursue custody, rendering the child advocate’s arguments moot and/or irrelevant. In fact, the court’s ruling implies that delaying permanent legal custody due to accommodating an indefinite and speculative custody action taken by the biological mother would not be in the best interest of the child.

Ultimately, the court’s decision, while perhaps not explicitly stating it, simply accepted the fact that granting "permanent" legal custody is, in actuality, something much less than that. Instead, it is something that could very easily become impermanent upon an appropriate action by the biological mother. The court did not consider whether the Juvenile Act and other appropriate law, statutes and rules permit a biological mother to regain custody after the dismissal of a dependency petition and award of permanent legal custody, implicitly indicating that since the biological mother in this case had not yet filed for custody, the implications for doing so were not presently at issue. •

James W. Cushing is an associate with the Law Office of Faye Riva Cohen and practices unemployment compensation law. He can be reached at 215-563-7776 and jwc@fayerivacohen.com.