In the Interest of: D.R., A Minor, Appeal of: F.S. ( 2018 )

J-S13036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: F.S., NATURAL MOTHER : No. 1408 WDA 2017
Appeal from the Order August 28, 2017
in the Court of Common Pleas of Erie County,
Juvenile Division at No(s): No. 122 of 2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 25, 2018
F.S. (“Mother”) appeals from the Order1 changing the permanency goal
for her minor son, D.R. (born in October 2015 – hereinafter, “Child”), from
the concurrent goal of reunification/adoption, to adoption alone. Additionally,
Emily M. Merski, Esquire (“Attorney Merski”), Mother’s counsel, has filed a
Petition for Leave to Withdraw as Counsel and an accompanying brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967).2 We grant Attorney
Merski’s Petition for Leave to Withdraw and affirm the juvenile court’s Order.
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1 This Order is final and appealable, for the reasons stated in the juvenile
court’s Opinion. See Juvenile Court Opinion, 11/22/17, at 9.
2 Anders principles “apply in appeals from goal change orders, even in the
absence of an involuntary termination decree. Parents have a right to counsel
at every stage of a dependency proceeding.” In re J.D.H., 171 A.3d 903,
906 (Pa. Super. 2017); see also In re V.E., 611 A.2d 1267, 1275 (Pa. Super.
1992).
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The juvenile court thoroughly set forth the relevant facts and procedural
history underlying this appeal in its Opinion, which we incorporate as though
fully set forth herein. See Juvenile Court Opinion, 11/22/17, at 1-8.3 After
Attorney Merski timely initiated the instant appeal, she filed in this Court a
Petition for Leave to Withdraw as Counsel and a separate Anders Brief.
Before reviewing the merits of Mother’s claims, we must first determine
whether Attorney Merski has complied with the dictates of Anders in
petitioning to withdraw from representation. See In re X.J., 105 A.3d 1, 3
(Pa. Super. 2014). Pursuant to Anders, when an attorney believes that an
appeal is frivolous and wishes to withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the [client], counsel has determined the appeal would
be frivolous, (2) file a brief referring to any issues in the record of
arguable merit, and (3) furnish a copy of the brief to [the client]
and advise [her] of [her] right to retain new counsel or to raise
any additional points that [s]he deems worthy of the court’s
attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted). With
respect to the third requirement of Anders, i.e., that counsel inform the client
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3 We note that, attached to the appellate brief filed by Erie County Office of
Children and Youth (“OCY”), is a Decree dated December 6, 2017, filed under
a separate docket number, wherein the Orphans’ Court terminated Mother’s
parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8),
and (b) of the Adoption Act. OCY maintains that Mother did not appeal this
Decree. See Brief for OCY at 1. Our decision in the instant appeal does not
include a consideration of this Decree. See In re J.F., 27 A.3d 1017, 1024
n.10 (Pa. Super. 2011) (stating that this Court may only consider information
contained in the certified record on appeal; anything not contained therein
does not exist for appellate purposes).
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of her rights in light of counsel’s withdrawal, this Court has held that counsel
must “attach to [a] petition to withdraw a copy of the letter sent to the[] client
advising him or her of their rights.” Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief must
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel
has satisfied the above requirements, this Court “must undertake an
independent examination of the record to determine whether the appeal is
wholly frivolous.” In re S.M.B., 856 A.2d at 1237.
Here, Attorney Merski has complied with the requirements set forth in
Anders by indicating that she made a conscientious review of the record and
determined that Mother’s appeal would be wholly frivolous. Further, the
record contains a copy of the letter that Attorney Merski sent to Mother,
informing her of Attorney Merski’s intention to withdraw and advising her of
her right to proceed pro se, retain counsel, and file additional claims. Finally,
Attorney Merski’s Anders Brief meets the standards set forth in Santiago.
Because Attorney Merski has complied with the procedural requirements for
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withdrawing from representation, we will independently review the record to
determine whether Mother’s appeal is, in fact, wholly frivolous.
Because Mother neither filed a pro se brief, nor retained alternate
counsel for this appeal, we will consider the following issue Attorney Merski
presents on Mother’s behalf in the Anders Brief: “Whether the juvenile court
committed an abuse of discretion and/or error of law when it determined that
the concurrent permanency goal of reunification/adoption was no longer
feasible and changed the goal solely to adoption?” Anders Brief at 2
(capitalization omitted).
Our well-settled standard of review is as follows: “When we review a
[juvenile] court’s order to change the placement goal for a dependent child to
adoption, our standard is abuse of discretion.” In re N.C., 909 A.2d 818, 822
(Pa. Super. 2006); see also In re A.L., 779 A.2d 1172, 1174 (Pa. Super.
2001) (stating that “[t]he standard of review which this Court employs in
cases of dependency is broad.”). Appellate courts are not in a position to
make close calls based on fact-specific determinations, and must defer to the
juvenile court judges, who are in the best position to gauge the likelihood of
the success of a permanency plan. In the Interest of R.J.T., 9 A.3d, 1179,
1190 (Pa. 2010). “[T]he best interests of the child[,] and not the interests of
the parent[,] must guide the [juvenile] court, and the burden is on the child
welfare agency involved to prove that a change in goal would be in the child’s
best interest.” In re R.I.S., 36 A.3d at 573, 567 (Pa. 2011); see also In
the Matter of S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (stating that the
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“[s]afety, permanency, and well-being of the child must take precedence over
all other considerations.”) (citation and emphasis omitted). A “child’s life
simply cannot be put on hold in the hope that the parent will summon the
ability to handle the responsibilities of parenting.” In re J.D.H., 171 A.3d at
908 (citations and brackets omitted).
Pursuant to 42 Pa.C.S.A. § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months.
Id. (citations and brackets omitted).
Here, Mother contends that the juvenile court abused its discretion in
changing the permanency goal for Child from reunification/adoption to
adoption, since “the record shows [that Mother], while engaged in court-
ordered services, was making progress towards achieving the goal of
reunification.” Anders Brief at 7.
In its Opinion, the juvenile court cogently addressed Mother’s claim and
determined that it did not abuse its discretion in changing the permanency
goal for Child to adoption, as the evidence showed that it was in Child’s best
interests. See Juvenile Court Opinion, 11/22/17, at 10-15. We agree with
the juvenile court’s determination and analysis, which is supported by the
record. As the juvenile court’s reasoning is sound, and our independent
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review of Mother’s issue demonstrates that it does not entitle her to relief, we
thus affirm based on the juvenile court’s Opinion in concluding that the court
did not abuse its discretion in changing Child’s permanency goal to adoption.
See id.
Moreover, our review of the record discloses no other non-frivolous
issues that Mother could raise that Attorney Merski overlooked. See In re
J.D.H., 171 A.3d at 910. Accordingly, we grant Attorney Merski’s Petition to
Withdraw, and affirm the juvenile court’s Order.
Petition to Withdraw granted; Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2018
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Circulated 04/25/2018 03:24 PM
IN THE INTEREST OF D.R. : IN THE COURT OF COMMON PLEAS
A mi or. : OF ERIE COUNTY, PENNSYLVANIA
: JUVENILE DIVISION DEPENDENCY -
: No. 122-2016
MEMORANDUM OPINION
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This matter is before the Court upon the appeal of F.S. (hereinafter "Appellant" tlie,,
:$
Natural Mother of the minor child adjudicated dependent, from this Court's Decree dafo-dl- ugustr'
28, 2 17. Appellant is challenging this Court's decision to change the permanency goal to
Adopt on. For the reasons set forth below, the instant appeal should be dismissed.
FACTS AND PROCEDURAL HISTORY
D.R. was born on October ( 2015, to Appellant and K.R. On August 8, 2016, the Erie
Court Office of Children and Youth (hereinafter "OCY") filed a Dependency Petition.
Spec' cally, the Petition alleged D.R. was a Dependent Child pursuant to 42 Pa.C.S.A. §6302
91 and 10 under "Dependent child."' Dependency Petition, August g, 2016 at 1. In the
Petitio, OCY alleged that Appellant had an extensive history with OCY. Id. at 3. OCY asserted
that A pellant's parental rights to three of her children were involuntarily terminated and one
other hild was removed from her care due to concerns regarding her "cognitive limitations,
unstab e mental health, domestic violence, unstable housing, inability to meet the children's
basic eeds and being uncooperative with OCY and service providers." Id, Appellant was
allege A to be an "indicated perpetrator of abuse wherein one (1) of her other children was the
victim ' Id. In regards to unstable mental health, OCY specifically alleged Appellant "has a
1111 tin er 42 Pa.C.S. §6302 defines a "Dependent child" as one who "is without proper
parental care or control,
subsist ce, education as required by law, or other care or control necessary for his physical, mental, or emotional
health, r morals." Paragaph Ten defines a "Dependent child" as one who "is born to a parent whose parental
rights ith regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511(relating to grounds
for inv untary termination) within three years immediately preceding the date of birth of the child and conduct of
the pare t poses a risk to the health, safety or welfare of the child."
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menta health diagnosis of major depressive disorder and suicidal ideations." Id. at 4. The
Petiti n alleged Appellant had an extensive criminal history including convictions for disorderly
condu t, terroristic threats, harassment and retail theft. Id. Furthermore, the Petition stated
Appel ant also had three pending criminal charges for disorderly conduct. Id. The Petition
allege Appellant had engaged in domestic violence with K.R. in the presence of the child and
police involvement was required. Id. Additionally, the Petition asserted Appellant "has a history
of uns able housing as she has resided in multiple residences including two (2) shelters, various
hotels and with several different individuals," Id. Finally, the Petition emphasized Appellant
had b en "extremely uncooperative with the Agency and service providers" and that she had
been "unsuccessfully discharged from multiple programs as a result of non-compliance." Id.
OCY so advocated for a finding of "aggravated circumstances" based on the definition set out
at 42 a.C.S. §6302(4) under "Aggravated circumstances."2 Id. at 1. OCY's Petition relied on
the fast that Appellant had her parental rights involuntarily terminated to three of their children
and K. . had his parental rights involuntarily terminated to one of his children.
On August 9, 2016, OCY submitted a Shelter Care Application for D.R. The Application
allege D.R., under the care of Appellant, had unstable housing. OCY asserted that Appellant
had li ed in various residences, to include living with various family members, living in friends'
homes two shelters and various hotels. Shelter Care Application, August 9, 2016 at I. The
Appliaation alleged that Appellant had a significant mental health history which included the
follo g diagnoses: Major Depressive Disorder Recurrent Episode Severe; Postpartum
Depre sion; and Borderline Intellectual Functioning. Id. Also, OCY alleged Appellant had not
been compliant with mental health treatment. Id. Appellant has had a history of non-compliance
2¶4 under "Aggravated circumstances" in 42 Pa.C.S. §6302 states that aggravated circumstances exist
when the
"parent 1 rights of the parent have been involuntarily terminated with respect to a child of the parent."
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demonstrated by her unsuccessful discharge from Family Preservation and. Project First Step. Id.
at 2. Additionally, OCY expressed concern for D.R.'s safety due to the parents' history of
dome 'e violence, including a physical altercation between Appellant and K
K.R. on July 1, 2016
in the hild's presence. Id. at 2. Other Agency concerns included Appellant's anger which was
on full display when she locked herself in a room and stated to police she would "go out with a
bang." Id. The Shelter Application also included Agency concerns with Appellant's cognitive
limita ons which were buttressed by the fact that "she has an IQ of less than 70." Id.
On August 18, 2016, a Dispositional Hearing was held. At this hearing, the Master
reco ended D.R. be adjudicated a Dependent Child pursuant to 42 Pa.C.S. §6302. Master's
Recommendation for Adjudication and Disposition, August 18, 2016 at 1. The Master also
asserted there was clear and convincing evidence to find aggravated circumstances existed
agains Appellant and K.R. Id, This Court adopted the Master's Recommendation and D.R. was
adjudi ated to be a Dependent Child. Order, August 23, 2016. Furthermore, the Court found by
clear d convincing evidence that aggravated circumstances existed against Appellant under 42
Pa.C. §6302 and 42 Pa.C.S. §6341(c.1).3 Id. at 1. The parents consented to the adjudication of
depencLncy and aggravated circumstances. Master's Recommendation for Adjudication and
Dispoition, August 18, 2016 at 1. The Court granted OCY legal and physical custody of the
child With placement at foster care, and the placement goal was set as Return to Parent pursuant
to 42 a.C.S. §6351(f.1)(1).4 See Order -Child Dependent, August 23, 2016.
342 Pa. .S. §6341(c.1) states: "If the court finds from clear and convincing evidence that aggravated circumstances
exist, t court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the
child fr m the home or to preserve and reunify the family shall be made or continue to be made and schedule a
hearing required in section 6351(e)(3) (relating to disposition of dependent child)."
442 Pa. .S. §6351(f.1)(1) states that at a permanency hearing, a court shall determine whether it is in the child's
best int rest to "be returned to the child's parent."
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A. Permanency Review Hearing on November 9, 2016
Due to the finding of aggravated circumstances and concerns for the child's safety, this
Court conducted an expedited 90 -clay review from the date of adjudication to assess the parents'
progress towards Reunification. Based on the testimony and reports provided at this hearing, the
Court found that Appellant was in moderate compliance with the permanency plan. The finding
that Appellant was "moderately compliant" was somewhat gratuitous and deferential to her.
Facts t the hearing revealed that Appellant had participated in a psychiatric evaluation on
Septe ber 6, 2016 during which she reported symptoms consistent with her diagnosis of bipolar
disorder and other episodic psychotic symptoms. Court Summary, November 9, 2016 at 8. She
also had begun to participate in the Family Engagement Program and was initially compliant and
regul ly met with her Family Engagement caseworker. Id. at 9. However, during the review
perio Appellant became oppositional with the Family Engagement caseworker and threatened
her wi a lawsuit, sent her inappropriate text messages and voicemails, and accused her of
inapp opriate contact with K.R. Id. Consequently, Family Engagement services to Appellant
were t rminated as a result of this behavior, Appellant agreed, however, to participate in a
differ nt parenting program. Id. Appellant participated in medical appointments for D.R., but it
was own whether she understood D.R.'s medical needs due to her cognitive impairment. Id.
at 10. On September 17, 2016, Appellant's landlord contacted Appellant's OCR'' caseworker and
report d that during a visit to her home, the landlord found Appellant had left her oven door open
and al four burners on to heat the apartment. Id. The landlord reported the temperature in the
apa ent was approximately ninety-five degrees, and there was a broken window in the
ap.ent. Id. Appellant's apartment was unfurnished, and thus not suitable for DR. to live in.
Id.
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These facts further reinforced concerns regarding Appellant's limited parenting skills, her
untreated mental health, her borderline intellectual functioning, her lengthy history with OCY
(inclu ing involuntary termination of her parental rights for three children). These concerns
result d in this Court's decision to add Adoption as a concurrent goal to Reunification. See
Perm nency Review Order, November 16, 2016 at 1. The addition of the concurrent goal to
Adop on was requested by OCY and supported by D.R.'s Guardian Ad Litem. This
modification was a clear signal to Appellant that substantial compliance by her was necessary for
the best interest of D.R. and to achieve the permanency goal of Return to Parent, or risk
termi tion of her parental rights once again. To further illustrate this Court's efforts to have
either arent, particularly Appellant, achieve the goal of Reunification, a six-month review
hearing was scheduled to provide Appellant with ample opportunity to demonstrate compliance.
B. Permanency Review Hearing on May 1, 2017
After a Permanency Review Hearing on May 1, 2017, the Court found Appellant had
only minimally complied with the permanency plan, and had made only minimal progress
tower alleviating the circumstances which led to the placement of the child for the reasons set
forth oelow. Permanency Review Order, May 3, 2017 at 1. Specifically, this Court found that
Appel ant was not compliant with her treatment plan. Appellant reported that on November 18,
2016, she had ceased taking her mental health medication as she felt she did not need it. Court
Summary, May 1, 2017 at 10. Further, Appellant's landlord reported regular domestic incidents
betwe4t Appellant and K.R. which necessitated police involvement. Id. at 13. K.R. had broken
two windows and damaged two doors at Appellant's residence. Id. The landlord advised
Appellant faced eviction unless she paid for repairs. Id. Appellant did not attend D.R.'s urology
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appoirtment on November 9, 2016 and well -child check on January 19, 2017. Id. As Appellant
still hd not acquired any furniture for the apartment, the residence was not suited for the return
of Id. at 14. Also, Appellant had incurred criminal charges for public drunkenness and
simil misconduct, as well as for disorderly conduct and obscene language and gestures. Id.
Finall , Appellant continued to be disruptive and was not cooperative with OCY and others. Id.
For e ample, Appellant "lashed out" at OCY staff during a visitation with D.R. on January 6,
2017. Id. In another incident, Appellant accused her case aide of striking D.R. and threatened to
sue 0 Y. Id.
At the conclusion of this hearing, based on Appellant's non-compliance, both OCY and
the G ardian Ad Litem requested that the goal be changed exclusively to Adoption. The Court
reluct tly disagreed and, once again, showed deference to Appellant in hopeful optimism that
she would demonstrate compliance and achieve the goal of Reunification.
The Court again determined the placement of the child was necessary and appropriate,
and o May 3, 2017, ordered that D.R. remain in foster care. Permanency Review Order, May 3,
2017 t 2. The Court continued the permanency goal of Return to Parent with the concurrent
goal o Adoption. Permanency Review Order, May 3, 2017 at 1-2; Court Summary, May 1, 2017
at 1. Kowever, noting the lack of progress made in this case, the Court once again expedited a
revie' hearing to occur within ninety days.
C. Permanency Review Hearing on August 23, 2017
On August 23, 2017, the Court held another three-month Permanency Review Hearing.
This ourt, once again, determined Appellant had been only minimally compliant with the
perm ency plan and had made only minimal progress toward alleviating the circumstances
6
which led to placement. Permanency Review Order, August 28, 2017 at 1. The Court was
particularly concerned that Appellant was not taking her prescribed mental health medication and
was r sistant to mental health treatment. On June 14, 2017, Appellant participated in a
medi ation management office visit and was prescribed Latuda, but Appellant did not want to
take t e medication. Court Summary, August 23, 2017 at 10. On August 1, 2017, Appellant
stated to her caseworker she did not have a mental health disorder and did not need treatment. Id
at 11. She further told the caseworker she is only taking the medication to achieve Reunification,
but would discontinue the medication once D.R. is returned to her. Id. To further demonstrate
whether Appellant understood or possessed any self-awareness of her mental health needs, the
Court asked her : "[T]ell me what your mental health diagnosis is, mental health." Permanency
Th., A gust 23, 2017 at 38. Appellant responded: "I don't have no mental health diagnosis." Id.
This gain signaled Appellant's lack of awareness and minimization of her ongoing and serious
men illness, which was left untreated, thereby, compromising her ability to safely care for
D.R.
The Court also found that on several occasions, Appellant had delusions D.R. was
suffering from serious medical conditions. For example, on May 5, 2017, Appellant scheduled
an appointment for D.R. and reported that his "cord" was not attached. Court Summary, August
23, 2 17 at 13. Appellant demanded the medical staff insert a tube in D.R.'s stomach, which they
refus d to do. Id. On July 18, 2017, Appellant scheduled another medical appointment for D.R.
and r ported that he appeared pale and was "not looking right." Id. Appellant's caseworker
cance'ed this appointment since Appellant had not seen D.R. in several days and D.R.'s foster
parents had not reported any issues. Id. Appellant became angry and threatened to sue the
caseWorker for cancelling the appointment. Id. The Court also found that Appellant had not
7
acquired any furniture in her apartment besides an inflatable mattress and a computer desk. Id. at
15. liis series of events also illustrated Appellant's mental illness and, to some extent, her
limite ability to safely parent D.R.
1.
Consequently, based on these facts and substantial non-compliance by Appellant, the
Court changed the permanent placement goal of Return to Parent with the concurrent goal of
Adop ion to exclusively Adoption. Permanency Review Order. August 28, 2017 at 2. This
decisi n was once again advocated for and supported by both OCY and the Guardian Ad Litem.
On September 26, 2017, Appellant filed a Notice of Appeal from the Permanency Review
Order of August 28, 2017, as well as a Statement of Intention to File an Anders brief in lieu of a
19250) Statement.
DISCUSSION
Appellant's attorney, Emily, M. Merski, Esquire, filed a "Statement of Intention to File an
Anders Brief," under Pa.R.A.P. 1925(c)(4). This provision states, in relevant part:
"In a criminal case, counsel may file of record and serve on the judge a statement of
intent to file an Anders/McClendon brief in lieu of filing a Statement. If upon review of
the Anders/McClendon brief, the appellate court believes that there are arguably
meritorious issues for review, those issues will not be waived; instead, the appellate court
may remand for the filing of a Statement, a supplemental opinion pursuant to Rule
1925(a), or both."
Furthermore, the Anders procedure has been engrafted onto parental termination cases. In the
Interest. ofJ.T, 983 A.2d 771, 774 (Pa. Super. 2009) (citing In re V.E. and J. E., 611 A.2d 1267,
1275 Pa.Super. 1992)). In the 1925(c)(4) Statement, Attorney Merski stated that "no non -
frivol us appellate issues exist." Statement of ntention to File an Anders Brief, September 26,
2017 t 1. Assuming, arguendo, the Superior Court determines this appeal has merit in spite of
the Appellant's Counsel's filing of an Anders brief, the appeal should nonetheless be dismissed.
8
The Court finds the current appeal is not interlocutory and therefore is ripe for review.
Unde Pennsylvania law, "an appeal will lie only from a final order unless otherwise permitted
by rul or statute." Jerry Davis, Inc. v. Nufab Corp., 677 A.2d 1256, 1257 (Pa. Super. 1996)
(citin Motheral v. Burkhart, 583 A.2d 1180, 1183 (Pa. Super. 1990)). The order in this case
consti sites a final order as defined by Pa.R,A.P., Rule 341(b), which provides, in relevant part,
that a final order is one that "disposes of all claims or parties." In In re Interest of MB., 565
A.2d $04, 810 (Pa. Super. 1989), the Pennsylvania Superior Court held that a change of goal
from eunification. to Adoption was an appealable final order, The Court further stated that to
"hold at the juvenile court's approval of the adoption goal is not appealable would frustrate the
purpoTes of the Juvenile Act by preventing review of a trial court decision," and that their
holdi Ig "fosters the public policies that underlie the Juvenile Act." In re Interest of MB., 565
A.2d t 810. Here, Appellant is challenging this Court's decision to change D.R.'s placement
goal ftom Return to Parent with the concurrent goal of Adoption to Adoption. As indicated
above this matter is appropriately appealable.
When considering a trial court's determination of a petition for termination of parental
rights, an appellate court must apply an abuse of discretion standard. In re J T, 9 A.3d 1179,
1190 a. 2010). This standard of review requires the appellate court to accept "the findings of
fact and credibility determinations of the trial court if they are supported by the record, but does
not re uire the appellate court to accept the lower court's inferences or conclusions of law." Id.In ord r to conclude that a trial court abused its discretion, the appellate court must determine
that th trial court's decision was manifestly unreasonable or was the result of prejudice, bias, ill -
will, o partiality. In re NC., 909 A.2d 818, 823 (Pa. Super. 2006).
9
In matters of custody and placement of a dependent child, the standard to be used by the
trial court is the best interests of the child, not those of his or her parents. Id. At each review
hearing for a child who has been removed from the parental home, a trial court must consider the
foil ing, statutorily-mandated factors:
the continuing necessity for and appropriateness of the placement; the extent of
compliance with the service plan developed foFfhe child; the extent of progress made
towards alleviating the circumstances which necessitated the original placement; the
appropriateness and feasibility of the current placement goal for the child; and, a likely
date by which the goal for the child might be achieved.
In re H., 788 A.2d 1006, 1008 (Pa. Super. 2001) (citing 42 Pa.C.S.A. §6351(f)).
Applying the above law to the case sub judice, the change of goal to Adoption
was a propriate and in the best interests of D.R. Throughout the duration of this case,
Appel ant was only minimally compliant with D.R.'s permanency plan and made little
progye s in alleviating the circumstances which necessitated his placement. At the
Perm ency Review Hearing of November 9, 2016, the OCY reported Appellant had
been oderately compliant with the permanency plan and had made moderate progress
towar alleviating the circumstances which necessitated the placement of the child.
Perm ency Review Order, November 16, 2016 at 1. At the Permanency Review
Heari gs of May 1, 2017 and August 23, 2017, the OCY reported that Appellant had been
only minimally compliant with the permanency plan and made only minimal progress
toward alleviating the circumstances which necessitated placement. Permanency Review
Order, May 3, 2017 at 1; Permanency Review Order, August 23, 2017 at 1. Tinder
Pa.C.S . §6351(f), a parent's compliance and progress with a permanency plan is a factor
that must be considered by a court at each review hearing. Appellant's lack of
compl ance and progress indicated to this Court that Appellant was unfit to properly care
10
for D1. Furthermore, it is not in D.R.'s best interest to live with Appellant because this
Court believed D.R.'s health and safety would be jeopardized if the child were permitted
to reside with Appellant.
From the beginning of these proceedings, Appellant was placed on notice that
the goal change to Adoption was a distinct possibility because, from November 16, 2016
to Au st 28, 2017, D.R.'s placement goal was established as Return to Parent with the
concurrent goal of Adoption. It also should not have been lost on Appellant that
having
her parental rights terminated for three other children would have given
her a heightened
awareness of what the consequences of her non-compliance would result in
termination
of her parental rights. This Court conducted expedited Permanency Review Hearings on
Nove ber 9, 2016 and August 23, 2017. The purpose of expediting these hearings
was
to demonstrate concern for the child and a desire for Appellant to
improve her
chew stances so that Reunification could be achieved. OCY wanted to change the
perm ency goal to Adoption on May 1, 2017. Court Summary, May 1, 2017 at I. This
Court ntained the goal of Return to Parent with the concurrent goal of Adoption to
give pellant the benefit of the doubt and a full opportunity to comply with previous
orders to achieve Reunification. Permanency Review Order, May 1, 2017 at 1.
Despite
the op ortunities afforded her, Appellant ultimately failed to comply with the
permanency
plan d failed to make progress in alleviating the circumstances which led to
placement.
Appel ant refused to acknowledge her problems and made no attempt to address the
circ stances which led to placement. The Guardian Ad Litem agreed with the decision
to c ge the placement goal to Adoption. Permanency Tr., August 23, 2017 at
8.
11
For this Court, Appellant's refusal to even acknowledge her mental health
diagn sis is extremely troubling. At the Permanency Review Hearing on August 23,
2017, pon direct examination by the Court, Appellant explicitly stated: "I don't have no
ment health diagnosis." Permanency Tr., August 23, 2017 at 38. The record establishes
Appel lant has a history of serious mental health issues which persist and prevent her from
provi ing appropriate parental care to D.R. Appellant's mental health diagnoses include:
Bipol r Disorder and has reported other Episodic Psychotic Symptoms, Unspecified
Schiz phrenia Spectrum and other psychotic disorders, specified problems related to
psych social circumstances, Borderline Intellectual Functioning, and Antisocial
Perso ality Disorder. Court Summary, November 9, 2016 at 8. Appellant has also shown
an un llingness to cooperate with mental health treatment. For example, Appellant's
casew rker made an unannounced visit to Appellant's apartment on August 17, 2017.
Court ummary Addendum, August 23, 2017 at 1. The caseworker found that Appellant
was t. ng her mental health medication twice per week, although it was prescribed to
be
taken aily. Id. at 1. As part of the permanency plan, Appellant was ordered to take "all
medication as prescribed." Court Summary, August 23, 2017 at 10. She also stated to the
OCY aseworker that she would only take her medication until D.R. was returned to her
and th n she would stop taking it. Id. Her refusal to acknowledge her condition indicates
a lack of understanding and commitment on her part to improve her ability to
safely care
for D. .
Appellant's mental illness has manifested itself in numerous ways throughout the
durati n of this case. At each review hearing, it was established that Appellant exhibited
bizarr behaviors, including lashing out at the OCY staff and others for irrational reasons.
12
Court Summary, May 1, 2017 at 14. Furthermore, there were several occasions where
Appellant falsely believed that D.R. had health issues. Court Summary, August 23, 2017
at 13. For example, on May 5, 2017, Appellant scheduled an appointment for D.R. and
reported that his "cord" was not attached. Id. Appellant demanded the medical staff
insert a tube in D.R.'s stomach, which they refused to do, Id. On July 18, 2017,
Appellant scheduled another medical appointment for D.R. and reported that he appeared
11
pale and was "not looking right." Id. Appellant's caseworker canceled this
appointment
since Appellant had not seen DR, in several days and D.R.'s foster parents had not
reported any issues. Id. Appellant became angry and threatened to sue the caseworker
for c ceiling the appointment. Id. Appellant has also been involved in several incidents
with .R. which involved domestic violence requiring police intervention, Court
Summ ry, May 1, 2017 at 13. These circumstances clearly indicate that Appellant is
unfit
to hav D.R. in her custody and that D.R.'s health and well-being would be at risk if this
were happen.
Appellant also has shown a pattern of unstable housing throughout these
proce dings. She has failed to secure housing that is appropriate for the care of D.R. In
fact, at the last Permanency Review Hearing on August 23, 2017, OCY reported that the
only 'tare in Appellant's apartment was an inflatable mattress and a computer desk.
Court Summary, August 23, 2017 at 15. The permanency plan directed Appellant to
"[o]b and maintain safe and stable housing." Id. at 14. On August 17, 2017,
Appel ant's caseworker found that Appellant's apartment did not appear to be safe
becau e there were two broken windows with shards exposed. Court Summary. She also
had au open window in her second floor apartment which D.R. could easily have
fallen
13
out of Appellant had been mixing Pine Sol, bleach, and dish soap to mop her floors.
Court Summary Addendum, August 23, 2017 at 1. In fact, the OCY caseworker's feet
kept s icking to the floor. This caseworker informed Appellant that it was dangerous to
mix t ese various types of chemicals. Additionally, at the Permanency Review Hearing
on Au gust 23, 2017, Appellant's landlord "expressed concern of [Appellant's] apartment
and the fact that she had her stove on with the door open and burners on," and the
landlord "estimated the apartment to be 95 degrees." Permanency Tr, August 23, 2017 at
5. Ap ellant clearly demonstrated that she is not willing or capable to provide a safe
home for D.R. which is another factor indicating she cannot safely parent D.R.
Finally, Appellant's history with involuntary terminations of parental rights cannot
be ig ored. Appellant has had her parental rights involuntarily terminated to three of her
childr n and one other child was removed from her care in the past. Dependency
Petiti n, August 8, 2016 at 3. On September 19, 2013, Appellant's parental rights to
Si C' Jc were terminated due to Appellant's "repeated incapacity, abuse,
neglect or refusal" and also her "refusal" to perform parental duties. Decree, September
19, 2013 at 1. On the same day, Appellant's parental rights to SI i Dl Jr.
were rminated for the same reasons. Decree, September 19, 2013 at 1. On November
18, 20 3, Appellant's parental rights to Si Mt J, r, were being terminated due
to Ap ellant's "repeated incapacity, abuse, neglect or refusal." Decree, November 18,
2013 t 1. These previous involuntary terminations of parental rights justified the finding
of "aggravated circumstances" in this case and the necessary heightened scrutiny by this
Court ttendant with such a finding.
14
For the aforementioned reasons, this Court determined that D.R.'s current
place ent in foster care was necessary and appropriate at the Permanency
Review
Fleari g on August 23, 2017. Permanency Review Order, August 23,
2017 at 1. The
histo and facts of this case demonstrate that Appellant was given every fair
opportunity
to de onstrate compliance and achieve Reunification with D.R.
Unfortunately, once
again, Appellant failed to do so. Furthermore, this Court found that
D.R.'s current
placement goal of Reunification with the concurrent goal of Adoption
was no longer
appro riate and feasible, and changed the goal to Adoption. Id. at 2.
This finding clearly
was n t an abuse of the Court's discretion. As case law clearly
indicates, the abuse of
discre 'on standard is highly deferential to the trial court's
determination because the
appellate court is required to accept the trial court's findings of fact
unless the findings
are " anifestly unreasonable." In re N.C., 909 A.2d at
823. As appellate courts have
contin lly recognized, a trial court is in a better position to make the
determination as to
wheth r a child should be eligible for adoption, as the trial court is able
to evaluate the
credibillity of the witnesses and resolve any conflicts in the testimony.
Consequently, the best interests of D.R. would be served by Adoption.
15
CONCLUSION
For the reasons set forth above, the issues raised in F.S.'s appeal are without
merit. Therefore, the instant appeal should be dismissed.
BY THE COURT:
John J. President Judge
cc: Erie County Office of Children and Youth Legal Department
Emily M. Merski, Esq., 3820 Liberty Street, Erie, Pennsylvania 16509
Charles W. Sacco, Esq., 525 West Tenth Street, Erie, Pennsylvania 16502
Alison M. Scarpitti, Esq., 150 East Eighth Street, Erie, Pennsylvania 16502
16