In re Interest of D.R.

232 A.3d 547

In the INTEREST OF: D.R., a Minor

Appeal of: Fayette County Children and Youth Services

In the Interest of: A.R., a Minor

Appeal of: Fayette County Children and Youth Services

In the Interest of: G.R., a Minor

Appeal of: Fayette County Children and Youth Services

In the Interest of: R.R., a Minor

Appeal of: Fayette County Children and Youth Services

In the Interest of: C.R., a Minor

Appeal of: Fayette County Children and Youth Services

No. 45 WAP 2019

No. 46 WAP 2019

No. 47 WAP 2019

No. 48 WAP 2019

No. 49 WAP 2019

Supreme Court of Pennsylvania.

Argued: March 11, 2020

Decided: JUNE 16, 2020

Caroline Tatem Buck, Esq., for Community Legal Services of Philadelphia, Amicus Curiae.

Sara Jeannette Rose, Esq., American Civil Liberties Union of Pennsylvania, Home School Legal Defense Association, Amici Curiae.

Richard Tsai Ting, Esq., American Civil Liberties Union of Pennsylvania, Home School Legal Defense Association, Amici Curiae.

Anthony S. Dedola, Esq., Uniontown, for Appellant Fayette County Children and Youth Services.

David James Russo, Esq., for Appellees J.R., D.R.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

The Child Protective Services Law (CPSL)¹ tasks county Children and Youth Agencies with investigating reports of suspected child abuse or neglect. The CPSL defines "child abuse" for reporting purposes and outlines specific considerations an agency must assess and tasks it must perform to complete its investigation. Further actions are authorized dependent on the conclusions reached. In this appeal, we consider what authority, if any, the CPSL affords an agency, during its investigation, to compel an observed urine sample for analysis from a subject of a report of suspected child abuse.

Factual and Procedural History

The factual and procedural history of this case unfolded as follows. D.R. (Father) and J.R. (Mother) (collectively, Parents) reside in Greene County with their five children, ranging in age from six to sixteen years old. Father is an attorney who, as part of his private practice, has represented parents under investigation by Greene County Children and Youth Services (CYS).

On October 29, 2018, Greene County CYS received a report that on October 12, 2018, Father was observed to be impaired or under the influence while in the presence of one of his children (not otherwise identified) at the Fort Jackson Building.² Because Father is a practicing attorney in Greene County, and to avoid a conflict of interest, the matter was referred to Fayette County CYS (the Agency). On November 5, 2018, the Agency received an e-mail stating that Father was seen in a store in Washington County and appeared "completely out of it." N.T., 1/28/19, at 20. On November 14, 2018, the Agency received an additional report by telephone, stating that Father "had an injury and [there was] suspicion that he may be taking something he shouldn't." Id . at 43. This third report also included an allegation that Father abused Mother, but that criminal charges were dismissed because she refused to testify.

On December 14, 2018, the Agency filed a Motion to Compel [Parents’] Cooperation with [General Protective Services] Assessment (Motion to Compel). The Motion to Compel set forth the reports outlined above as its basis for initiating an investigation to assess the need for any services. The Motion to Compel included representations that, as part of its investigation, a caseworker met with one of the children, R.R., at the child's school on November 3, 2018, and with three of the other children at their school on November 7, 2018. It further outlined the Agency's attempts to contact Father, only one of which was successful. The Motion to Compel was not served on Parents until January 15, 2019. A hearing was held on January 18, 2019, before Senior Judge Gerald R. Solomon, who was appointed due to the sua sponte recusal of the two judges who serve on the Greene County Court of Common Pleas. At the hearing, Judge Solomon denied Parents’ motion for recusal but granted their request for a continuance.

Judge Solomon held a hearing on January 28, 2019, at which the Agency offered the testimony of Rebecca Pegg, supervisor of the intake department for the Agency. She testified about the contents of three reports received by the Agency from one or more anonymous reporters, which formed the basis for initiating the instant investigation.³ She related the full substance of the first report received from a phone call to ChildLine in Greene County, as referred to Fayette County on October 29, 2018, about an incident alleged to have occurred on October 12, 2018, as follows: "[Father] was observed in the Fort Jackson Building with his child, appeared to be impaired or under the influence[/]of an unknown substance. ... Reporting source was concerned because of Father's observable behaviors." N.T., 1/28/19, at 38. No additional information was provided from the report or any follow-up with the reporter. Supervisor Pegg testified that the Agency directly received a second report by e-mail on November 5, 2018. She testified that the report expressed "concerns that Father was seen in a store in Washington County ‘completely out of it.’ " Id. at 20. The third report testified to by Supervisor Pegg stemmed from a phone call received by the Agency on November 14, 2018. "It is alleged that Father had an assault charge [in Washington County] for allegedly beating up Mom. However [the] charges [were] dropped, after refusal of testimony.^{[4 ]} ... Concerns for Father having a very serious problem. Many have shared concerns. Often seen with a child. Concerns for the children .... Concerns that [Father] may be taking something he shouldn't."⁵ Id. at 22.

Following the hearing, Judge Solomon issued orders directing Parents to permit the Agency into their home to assess the living conditions of the children, and directing Parents to cooperate with the Agency. The court also ordered Father to submit observed urine samples for purposes of drug and alcohol assessments. The orders further noted that Parents’ failure to comply would subject them to sanctions.

Parents appealed. In a published opinion, a panel of the Superior Court reversed.⁶ With respect to the substance of the appeal, the panel noted that in In re Petition to Compel Cooperation with Child Abuse Investigation , 875 A.2d 365 (Pa. Super. 2005), the court held that a CYS inspection of a home is subject to the limitations of state and federal search and seizure jurisprudence. In that case, the agency received a referral of possible abuse and medical neglect. After contacting the parents and medical providers, the agency sought a home inspection, which the parents refused. The agency obtained an ex parte order compelling the inspection. However, the Superior Court reversed, noting:

Instantly, the only relevant facts alleged were that [CYS] had received a ChildLine referral for possible medical neglect. Clearly, this was insufficient to support the court's order compelling appellants to submit to a search of their home. Nor did [CYS] allege exigent circumstances; the court's order giving appellants ten days to comply indicates that this was not an emergency situation where the child's life was in imminent danger.

Id. at 378. The court further noted there was no link between the alleged abuse and the conditions in the home. Id.

Turning to the instant matter, the panel noted that while there were three separate reports of Father's intoxication, there was no specificity as to the type of impairment or if such impairment caused the children to be abused or neglected. Appeal of D.R. and J.R. , 216 A.3d at 295. Additionally, the panel observed that nothing in the Agency's investigation prior to its filing of the Motion to Compel, including its interviews with the children, led to further suspicion of abuse or neglect. The Agency did not allege a link between any alleged abuse/neglect and the condition or circumstances in Parents’ home. Furthermore, the Agency did not allege exigent circumstances. Id . Because the record did not provide a sufficient foundation for a finding of child abuse or neglect under the CPSL, the Superior Court concluded the trial court erred by ordering Parents to submit to a home inspection.

The panel next considered the challenge to the order directing Father to submit a urine sample, which counsel for the Agency stated would be an "observable urine sample." N.T., 1/28/19, at 48. This procedure "necessitates that the administrator of the drug test watch the urine exit the penis to ensure the integrity of the sample." Appeal of D.R. and J.R. , 216 A.3d at 289 n.3. In support of its position, the Agency had relied on Pa.R.C.P. 1915.8 ("Physical and Mental Examination of Persons"), as authority for ordering drug testing of a parent. It noted Rule 1915.8(a) provides that in a custody matter a court may order any party to participate in an evaluation by an expert, and that the 2007 Comment to the rule states that it applies to drug and alcohol evaluations. The Agency cited Luminella v. Marcocci , 814 A.2d 711 (Pa. Super. 2002), where the Superior Court held that court-ordered drug testing in the context of a custody matter was permissible so long as the search survived constitutional scrutiny.

The panel concluded, "there is no statutory authority for a CYS agency to petition for a drug test prior to a dependency adjudication. Unlike a home inspection, a drug screen is not mentioned, much less mandated, anywhere in either the CPSL or [the regulations implementing the CPSL]." Appeal of D.R. and J.R. , 216 A.3d at 295. Additionally, the panel rejected reliance on Luminella because in the instant matter "there is no legislative underpinning that authorizes the court to order the drug testing of a parent" in the context of a CYS investigation conducted prior to a dependency adjudication. Id. at 296. In light of the lack of statutory authorization, the panel "declin[ed] to...