J-A27030-14

2014 PA Super 229

IN RE: D.S., A MINOR

APPEAL OF: T.S., FATHER

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

: No. 577 WDA 2014

Appeal from the Order Entered March 12, 2014,

In the Court of Common Pleas of Allegheny County, 

Civil Division, at No. 99-1597.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

OPINION BY SHOGAN, J.: FILED OCTOBER 10, 2014

In this dependency case, T.S. (“Father”) appeals from the order 

entered on March 12, 2014, that, inter alia, directed Father to undergo a 

psychiatric evaluation and changed the placement of his minor child 

(“D.S.”).1 After careful review, we reverse in part and affirm in part.

The trial court set forth the relevant facts and procedural history of 

this matter as follows:

The family has an extensive history with Allegheny County 

Child Youth and Families (CYF) dating back to 2000. Both D.S. 

and [a sibling] Z.S. were removed from Mother’s care for 

suspected neglect and physical abuse.[2] They were eventually 

returned to her care. The children were removed from Mother’s 

care in 2002 for similar allegations. Father was granted primary 

physical custody of the children in Adult Family Division. Mother 

was allowed unsupervised contact with the children through this 

 

1 Because the order changed D.S.’s placement, it is a final appealable order. 

See In re C.M., 882 A.2d 507, 512 (Pa. Super. 2005) (explaining that in a 

dependency case, an order granting or denying a status change, as well as 

an order terminating or preserving parental rights, shall be deemed final 

when entered).

2 Neither Z.S. nor the children’s mother is a party to the instant appeal.
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order. The family came to the attention of CYF again in 2009 

when Mother requested removal of the children. It was reported 

that Father had placed the children in Mother’s care sometime in 

2008. CYF filed a Dependency Petition but the case was closed 

after Father agreed to assume custody of the children.

On September 27, 2013, Father filed a Private Dependency 

Petition alleging that D.S. was running away and refusing to 

follow household rules.2 At a Shelter Hearing3on October 10, 

2013, [F]ather requested that the children be removed from his 

home. Sometime prior to entering the courtroom for this 

hearing, the caseworker observed the children, in the hall, 

begging Father to return home. The caseworker testified that 

[F]ather responded by pushing the children off of him and saying 

“get the f*** off of me”.

2 A similar petition was filed for Z.S.

3 The Honorable William Ward was presiding over the 

case until December 31st, 2013.

At a review hearing on November 12, 2013, the court 

allowed D.S. to return home to [F]ather. Father subsequently 

demanded the child be removed from his home again on 

December 5, 2013. On December 18, 2013, D.S. was 

adjudicated dependent under 42 Pa.C.S. §6302(1) and (6). 

Father stipulated that he required CYF’s assistance in meeting 

D.S.’s mental health needs. At this hearing, the court offered 

Father home visits on Christmas Eve and Christmas day. Father 

declined both of the visits. The court further ordered that D.S., 

Father and Father’s paramour4attend [Allegheny Forensic 

Associates] (AFA) evaluations. D.S. did attend her individual 

evaluation but Father and his paramour refused to attend their 

individual evaluations with Dr. Rosenblum.

4

It should be noted that Father’s live-in paramour 

was the former CYF caseworker assigned to the 

family case. This was a point of contention in the 

family and thus the reason for ordering her to 

participate in the evaluations.
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The parties appeared before the Court on March 12, 2014 for a 

Permanency Review Hearing. Prior to this hearing, counsel for all 

parties briefed the issue of parent’s right to refuse an individual 

AFA evaluation. The caseworker, Father, and D.S. testified, and 

reports from Dr. Rosenblum and Dr. Vallano were admitted into 

evidence5. Dr. Rosenblum completed an interactional evaluation 

of D.S., Z.S., [Father] and [F]ather’s paramour. Dr. Rosenblum 

opined that D.S. grew up in a “highly dysfunctional and unstable 

family. Father has his hands full with these children for quite 

some time. Of course the fact that he has run through a number 

of different girlfriends has not helped... this Psychologist 

continues to believe it would be advantageous to complete 

evaluations with father...[.] I believe the parents need help in 

identifying increased structure and specific behavioral 

expectations for D.S...[.]” Dr. Vallano completed an individual 

evaluation of D.S. and similarly determined that intensive family 

therapy would be beneficial to the family. Dr. Vallano 

recommended “Family therapy to work with father to help him 

better understand the trauma and trauma impact as well as 

parent behavioral management training on how to oversee an 

adolescent with significant emotional and behavioral difficulties”.

5 The Court considered this evidence as well as the 

briefs from the parties.

D.S. also provided testimony that [F]ather had not been 

visiting the placement facility and was not permitting her to have 

home visits. Specifically, she testified, “We have been down this 

road. “Yeah I’m willing”, but he just says it. He never does it. It 

is always my fault. Everything is always my fault.” Most 

importantly, D.S. expressed her desire for love and affection and 

longing for a home which could provide her with both. The court 

found D.S.’s testimony both credible and compelling. It was 

apparent that she longed for a better relationship with her father 

and appeared willing to engage in services. 

Father wavered in his responses; at times he agreed to 

cooperate with services and at other times he expressed that 

services would not work for D.S. After direct examination and 

cross, the court questioned Father about the doctor’s 

recommendations for individual therapy. Father testified that 

either family therapy or individual therapy “couldn’t hurt”. He 
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later testified that he was willing to accept the services that Dr. 

Rosenblum recommended in his report. When asked whether he 

would cooperate with any services in order to keep the children 

at home he replied, “Yes, I am willing to keep trying”.

Despite these responses, [F]ather’s counsel expressed to 

the Court that his client did not wish to be evaluated by Dr. 

Rosenblum because it was “a one shot deal” and “not therapy”. 

While counsel did state this in his closing argument, the court 

took Father’s testimony as [a] whole to be that he was willing to 

cooperate with any services that would allow for the return of his 

daughter. While [F]ather’s counsel opined that was not what 

Father meant, it is clear by his responses that Father agreed to 

engage in individual therapy. There had been no suggestions by 

any of the parties that Father was in need of individual therapy 

only. The purpose in litigating and briefing this issue was 

whether it was in the best interest of D.S. to evaluate Father’s 

mental health needs with respect to his parenting abilities.

CONCLUSlON:

While Father does not believe he needs to be evaluated by

a mental health professional, the Court believes that he does. 

D.S. has been through a number of traumatic and disturbing 

incidents in her life. Father lacks any insight about how to 

address D.S.’s mental and emotional problems. The existence of 

a romantic relationship between [F]ather and the former 

caseworker is also particularly troubling. This type of poor 

decision making and parenting exhibits a clear need for Father to 

obtain some type of mental health services of his own. He has 

had a number of paramours in the home which has also created 

tension. Father appears willing to participate in services that he 

believes to be appropriate. He demands CYF to remove the child 

but is unwilling to actually cooperate with services. Father’s 

refusal to undergo an individual evaluation is troubling because 

of the nature and severity of D.S.’s history of trauma and abuse. 

The goal in this case has always been reunification. In order to 

facilitate such a goal, it is vital to the family to address 

everyone’s mental health needs as well as to minimize conflict in 

the home.
J-A27030-14

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Trial Court Opinion, 5/15/14, at unnumbered 1-5 (bracketed footnote 

added).

Following the hearing, the trial court ordered D.S. to be moved to a 

placement facility that could address her mental health issues, and where 

she could undergo trauma-based therapy, family therapy, and individual 

therapy. Order, 3/12/14. The trial court also directed Father to attend an 

individual psychiatric evaluation at AFA and directed him to follow the 

recommendations made as a result of the AFA evaluation. Id. Father filed a 

timely appeal.

On appeal, Father presents a single issue for this Court’s 

consideration:

Did the Trial Court abuse its discretion by not applying the law 

and making a decision that was manifestly unreasonable by 

ordering [Father] to participate in a mental health evaluation 

despite no record of a mental health deficiency to establish the 

compelling state interest needed to justify the intrusion upon his 

Constitutionally protected right to privacy?

Father’s Brief at 4.

Initially, we point out that our standard of review of an order changing 

the placement of a dependent child is for an abuse of discretion. In re A.K., 

936 A.2d 528, 532-533 (Pa. Super. 2007) (citation omitted). However, 

because the salient issue in this matter is whether the trial court could order 

Father to undergo a psychiatric evaluation, we analyze this issue pursuant to 

Article 1 Section 1 of the Pennsylvania Constitution. See In re T.R., 731 
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A.2d 1276, 1280 (Pa. 1999) (plurality decision) (citing Denoncourt v. 

Commonwealth State Ethics Commission, 470 A.2d 945, 949 (Pa. 

1983)). Article 1 Section 1 provides as follows:

Inherent rights of mankind

All men are born equally free and independent, and have certain 

inherent and indefeasible rights, among which are those of 

enjoying and defending life and liberty, of acquiring, possessing 

and protecting property and reputation, and of pursuing their 

own happiness.

Pa. Const. Art. 1, § 1. However:

Although the right to privacy is of constitutional dimension, it is 

not unqualified. Privacy claims must be balanced against state 

interests. Our test of whether an individual may be compelled to 

disclose private matters, as we stated it in Denoncourt, is that 

“government’s intrusion into a person’s private affairs is 

constitutionally justified when the government interest is 

significant and there is no alternate reasonable method of lesser 

intrusiveness to accomplish the governmental purpose.” [Id.] at 

949. More recently, we have stated the test in terms of whether 

there is a compelling state interest. Stenger [v. Lehigh Valley 

Hospital Center, 609 A.2d 796, 802 (Pa. 1992)]. In reality, the 

two tests are not distinct. There must be both a compelling, i.e., 

“significant” state interest and no alternate reasonable method 

of lesser intrusiveness.

In re T.R., 731 A.2d at 1280.

Applying this analysis, our Supreme Court then held in In re T.R. that 

the mother’s right to privacy precluded a compelled psychological 

evaluation. In re T.R., 731 A.2d at 1281. The Court concluded that there 

was abundant information already in the case about the mother’s parenting 

ability, or lack thereof. Id. 
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Here, Father argues that the trial court misapplied the law when it 

ordered him to undergo a psychiatric evaluation. Father’s Brief at 10. 

Father cites In re K.D., 744 A.2d 760 (Pa. Super. 1999) as support for his 

position. In that case, a panel of this Court stated: 

The Juvenile Act does not expressly provide for a parent to 

submit to a psychological evaluation during a dependency 

proceeding. Moreover, the purposes of the Act are:

(1) To preserve the unity of the family wherever 

possible or to provide another alternative permanent 

family when the unity of the family cannot be 

maintained.

(1.1) To provide for the care, protection, safety and 

wholesome mental and physical development of 

children coming within the provisions of this chapter.

...

(3) To achieve the foregoing purposes in a family 

environment whenever possible, separating the child 

from parents only when necessary for his welfare, 

safety or health or in the interests of public safety.

(4) To provide means through which the provisions 

of this chapter are executed and enforced and in 

which the parties are assured a fair hearing and their 

constitutional and other legal rights recognized and 

enforced.

42 Pa.C.S.A. § 6301(b).

In re K.D., 744 A.2d at 761. The panel then went on to state:

We believe, under the circumstances of this case, that the 

best interests of the children can be maintained without 

compelling appellant to submit to a psychological evaluation. Our 
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thorough evaluation of the trial court opinion and the record 

reveals a noticeable lack of support for subjecting appellant to 

this evaluation. A mere allegation that appellant has been taking 

medication for a mental condition and passed out on one 

occasion as a result of the medication is insufficient, in our 

minds, to force upon her an unwanted psychological evaluation.

Id.

Similarly, in the present case, while there remains no absolute bar to 

ordering a psychiatric evaluation, we conclude that the trial court’s order of 

a mandatory psychiatric evaluation and treatment was not the least invasive 

means of achieving its well-intentioned goal. In a case where this Court 

examined the decision in In re T.R., we stated: “[In re] T.R. stands for the 

proposition that the court may not, under certain circumstances, invade an 

individual’s privacy rights by ordering a psychological evaluation and 

revealing its results; however, the court may take into consideration a 

parent’s refusal to follow its treatment recommendation.” In re J.Y., 754 

A.2d 5, 9 (Pa. Super. 2000) (emphasis added). 

Here, there would have been no impediment to the trial court’s 

recommendation that Father seek treatment, and if Father opted to forgo 

that treatment, his refusal could have been considered by the trial court in 

D.S.’s placement. In re J.Y., 754 A.2d at 9. However, we cannot conclude 

that there was a compelling state interest in ordering the evaluation and 

directing Father to comply with recommendations made by AFA in this case. 
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Indeed, there were no specific allegations or evidence of record that Father 

had any particular mental health deficiencies. 

As pointed out by the Court in In re T.R.: 

The real issue in the case, then, is not so much whether 

the children should be removed, as whether the mother should 

be protected from her own assertion of a constitutional right 

because the assertion of that right may impede the efforts of the 

courts to return the children to her care. Citing the legislative 

goal of keeping the family together, the department would 

require the psychological examination.

We regard such a concern as well intentioned, but 

misplaced. Compelling a psychological examination in this 

context is nothing more or less than social engineering in 

derogation of constitutional rights, and where, as here, there is 

an abundance of information about the ability of the parent to be 

a parent, there is no state interest, much less a compelling state 

interest, in the ordering of parental psychological examinations. 

In fact, we find such state intervention frightening in its 

Orwellian aspect. It is one thing for the mother to agree to 

psychological evaluation and to voluntarily undergo instruction in 

self-improvement, but it is quite another for the state, in the 

exercise of paternalistic might, to order a psychological 

evaluation in violation of the mother’s constitutional rights, 

presumably upon pain of imprisonment for contempt of court. 

The constitution is not a mere policy statement to be overridden 

by a sociological scheme for the improvement of society. The 

mother, alas, may be her own worst enemy and her 

shortcomings as a parent may result in the permanent removal 

of her children; nonetheless, the mother remains a free person, 

and her power to assert her constitutional right to privacy is not 

diminished merely because the representatives of the state think 

it is ill advised.

In re T.R., 731 A.2d at 1281.

Likewise, while Father himself may be an impediment to reunification 

with D.S., we cannot conclude that there is a state interest in this matter 
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that is so compelling that Father’s constitutional rights may be overridden. 

Here, it was Father, not a government agency, who filed the dependency 

petition requesting that D.S. be removed from his home.3 If Father is 

unwilling to voluntarily seek psychiatric treatment and follow 

recommendations, that remains his choice, as he initiated the underling 

petition. However, the trial court is under no obligation to reunite D.S. with 

a parent or guardian unable or unwilling to care for her. A court order 

directing psychiatric treatment in violation of Father’s constitutional rights, 

with the possible penalty for failure to comply being “imprisonment for 

contempt of court,”4is not warranted under the facts of this case or the 

aforementioned relevant legal authority. 

For these reasons, we conclude that the trial court erred in ordering 

Father to undergo a psychiatric evaluation. Accordingly, that part of the 

March 12, 2014 order directing Father to undergo a psychiatric evaluation

and follow AFA recommendations is hereby reversed. The order is affirmed 

in all other respects.

 

3 Appellee, Kids Voice, as Guardian ad litem for D.S., emphasizes that a 

psychiatric evaluation was warranted because Father filed the dependency 

petition and invited the government intervention. Appellee’s (Guardian ad 

litem) Brief at 13. We disagree. If Father will not voluntarily undergo a 

mental health evaluation, we doubt that a court order compromising his 

constitutional rights will cure the underlying issues in this matter.

 

 

4

In re K.D., 744 A.2d at 761 (quoting In re T.R., 731 A.2d at 1281).
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Order reversed in part and affirmed in part. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014