In a case of first impression, the Pennsylvania Superior Court has ruled that parents retain the right to challenge orders granting permanent legal custody over their children.

Under the Pennsylvania Juvenile Act, permanent legal custody of children who have been found to be dependent can be transferred to someone found to be qualified to receive and care for those children if judges find that neither reunification with the children's parents nor adoption is best suited to the children's safety, protection and physical, mental and moral welfare.

Proponents say that not allowing parents to challenge permanent legal custody turns such orders into de facto terminations of parental rights undertaken under a lesser standard of review. Meanwhile, opponents say that permanent is permanent and that allowing parents to repeatedly relitigate the same issues erodes the stability of the family.

Superior Court Judge Jack A. Panella, writing an opinion joined by Judge Susan Peikes Gantman, said a juvenile court discontinues court intervention in the lives of dependent children when granting permanent legal custody, but parental rights are not terminated. The custodian typically receives a financial subsidy and parents typically retain visitation rights.

But the General Assembly could not have intended that the entry of permanent legal custody orders would preclude parents being able to modify such orders, Panella said.

"If the trial court were to refuse to revisit the question of physical custody, that would amount to a de facto termination of mother's and father's legal and primary physical custodial rights," Panella said, and parental rights can only be terminated by clear and convincing evidence, not by the less "heightened review process" that judges undertake in deciding to grant permanent legal custody orders.

Former Superior Court President Judge Correale F. Stevens, now confirmed as an interim justice on the Supreme Court, dissented without an opinion.

Frank Cervone, of the Support Center for Child Advocates, said the center will seek en banc review by the entire Superior Court.

Not allowing parents to challenge permanent legal custody orders, to which they often agree, is not de facto termination of parental rights, Cervone said.

When parents have their rights terminated, they retain zero rights, but after permanent legal custody orders, parents retain the right to partial custody, the right to visitation and the responsibility to pay child support, Cervone said.

Parental rights are restricted in the custody context, but that is not called de facto termination of parental rights, Cervone said.

The court's ruling collapses the category of permanent legal custody into the category of temporary legal custody, which was not what the legislature intended, Cervone said.

Community Legal Services' Katherine J. Gomez, who was involved in the case as an amicus litigant, said there is a misconception that once parents have been involved in the dependency process, they are permanently unfit and unable to care for their children.

"We believe it's incredibly important that parents maintain their right to seek primary custody," Gomez said. "As these cases play out, what we see is that there are many cases where the PLC custodian is in agreement to return the child or the parent is in the place to regain primary custody and the child wants to return. We've even had cases that the child advocate is in agreement."

Parents' constitutional rights are involved and can't be stripped without due process protections, Gomez said.

The Support Center for Child Advocates appealed an order entered by Philadelphia Court of Common Pleas Judge Kevin M. Dougherty to allow a father to challenge the order granting permanent legal custody of his three children to their maternal grandmother, who also was their "kinship foster parent."

Panella's opinion, quoting Dougherty "with approval," said "'the action taken by this court effectuates the intended purpose of the Juvenile Act that a court is to continue to separate children from their parents only when necessary. Moreover, absent an order terminating parental rights, vacating a permanent legal custody with visitation award entered pursuant to Section 6351(a)(2.1) of the Juvenile Act may very well serve to provide for the better care, protection, safety and wholesome mental and physical development of children.'"

Cervone said his legal services agency has seen the phenomenon in dozens of cases that parents in permanent legal custody cases come back to court over and over to relitigate the same issues and that erodes permanency and stability for the children.

"The caregiver has to take off from work," Cervone said. "The kids have to take off from school. Everyone has to face essentially the old questions that family had about why the parents could not meet the needs of their kids."

But Panella reasoned that not every filing by a parent will warrant a hearing, and a family-court judge can act "as a gatekeeper to make the preliminary determination as to whether the respective parent has pled sufficient facts to demonstrate a change in custody serves the best interests of the child in issue. This initial determination will weed out specious applications and keep children out of court unless a valid claim is presented."

But Cervone said family courts can't really function as gatekeepers of specious petitions because the facts sufficient to bring a parent's case into court are minimal and the court can't know if there's been a change in circumstances without a hearing.

The category of permanent legal custody was enacted as part of the Juvenile Act as a result of the federal Adoption and Safe Families Act of 1997, which "was Congress' response to the concerns of foster care drift and unsafe and unstable reunification efforts. Under the ASFA, states must hold permanency planning hearings within 12 months of the date a child enters care, and then every 12 months thereafter, to review and approve the permanency plan for the child."

While the father ultimately lost and the city of Philadelphia argued that the case was moot, Panella said the issue of whether parents can seek modifications in permanent legal custody orders was one that was capable of repetition but evades review, so the court would take up the issue.

Edward M. Flannery, the attorney for the father, said "there's no way this dad should have won."

"But all parents won the appeal," Flannery said, because that means parents can regain custody if they can show it would be in the best interests of their children to live with their parents again.

Catherine Volponi, director of the Juvenile Court Project of Allegheny County, which joined the amicus brief submitted by Community Legal Services, said if the Superior Court's decision were to be upheld, there would be no change in her county because challenges to permanent legal custody orders are handled as custody matters.

Ruling the other way would placed in doubt the outcomes in several cases in which permanent legal custody was changed, Volponi said.

There is "no such thing as a one-time decision about what's in the child's best interests," Volponi said.

The Defender Association of Philadelphia also filed an amicus brief.

Lawyers from the city Law Department did not respond to a request for comment.

(Copies of the 20-page opinion in In re S.H., O.H., and N.H., PICS No. 13-1503, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)