In the Interest of: Z.M.W. minor Appeal of: Z.M.W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Z.M.W., A MINOR :
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: No. 1732 WDA 2017
Appeal from the Order October 17, 2017
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): No. 91 of 2014 DP
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 17, 2018
Z.M.W. (born in April 2006), through his counsel, appeals from the
Order denying the Petition filed by the Lawrence County Children and Youth
Services (“Agency”) seeking a dependency goal change from subsidized
permanent legal custody (“SPLC”) to adoption. After careful review, we
affirm.
In January 2014, Z.M.W.’s mother (“Mother”) suffered a massive stroke.
Because of resulting physical and mental disabilities, Mother moved to a
transitional group home.1 Z.M.W. and his older sister, both of whom had lived
primarily with Mother, moved in with their father. In October 2014, after
Father suffered a mental health crisis, the Agency filed a Petition for
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1 Mother also has a long history of mental health issues. See Order, dated
June 16, 2017, at 3.
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Emergency Protective Custody. The court granted the motion and the Agency
placed Z.M.W. in a foster home.2
After a hearing, the court adjudicated Z.M.W. dependent, and granted
custody to the Agency with a goal of reunification. A Family Service Plan
(“FSP”) became effective in November 2015. In April 2015, after a
permanency review hearing, the placement goal remained reunification with
a concurrent goal of adoption.
Permanency review hearings occurred at regular intervals, each
indicating Mother’s inability to parent Child due to her disabilities. On October
18, 2016, the court signed a permanency review order noting Mother’s “very
serious physical and cognitive health issues as a result of a stroke,” and
concluding that, although Mother was “complying with the permanency plan
to the best of her ability considering her circumstances, [ ] there is no
indication that she will be able to fully parent the child.” Order, dated Oct.
18, 2016, at 1. The court ordered that the Agency “explore permanency plans
that assure that Mother will always maintain contact with the child,” and
directed the Agency to consider both permanent legal custody and adoption
as dependency goals. See id. at 7.
On November 30, 2016, the Agency filed a Motion seeking to change
the permanency goal from reunification to adoption and a Petition to
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2 Z.M.W.’s sister was placed in kinship care. She is now 18 years old.
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Terminate Parental Rights. The court held a hearing over two days in March,
and reopened the case for further proceedings in June 2017.
On June 16, 2017, the court entered an Order changing the goal from
reunification to subsidized permanent legal custodianship (“SPLC”) and
denying the Agency’s Petition to Terminate Mother’s parental rights.3 After
recognizing that Mother was not able to care for the Child in her home, the
court concluded: “Mother clearly loves her son and the son loves his Mother
and both want to maintain a relationship with each other.” Order dated June
16, 2017, at 4. The court concluded that “[i]t is not in the best interest of the
[C]hild to sever the relationship between [him] and his Mother. Despite her
limitations and disability, there is love between the Mother and son and the
potential loss of that relationship would be detrimental to the [C]hild.” Id.
The court concluded that the [C]hild’s desire for permanency “can be
accomplished without terminating the Mother’s parental rights.” Id.
Neither the Agency nor Z.M.W. appealed the goal change to SPLC or the
denial of the parental rights termination petition.
On August 3, 2017, the Agency filed a Motion for a Goal Change, based
on, inter alia, the Child’s wish to be adopted by his foster parents and asserted
that “the minor’s relationship with Natural Mother is deteriorated to the point
where he will hide in the bathroom during visits arranged at the Cray Visitation
House.” Motion, filed Aug. 3, 2017, at 3. The Agency also asserted that “the
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3 The court granted the Petition terminating Father’s parental rights.
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minor has the right to have natural Mother’s rights terminated so he may be
adopted.” Id.
The court scheduled a hearing on the request for August 18, 2017,
directing that Z.M.W. attend the hearing “to be interviewed regarding his
behavior changes.” Order, dated Aug. 3, 2017. On the afternoon of August
18, 2017, the court held the hearing with Z.M.W. in attendance.4 In addition
to Z.M.W.’s testimony, the court heard testimony from the Child’s sister, his
Mother, his foster Mother, Kayla Gould (the Agency caseworker), Stacy Durkin
(his cognitive behavioral therapist), and Jill Kaufman (the supervisor of the
Visitation Home).
The court interviewed Z.M.W., who stated that he hides in the bathroom
during visits “because I really don’t want to talk to [Mother] because she
doesn’t talk to me most of the time, and sometimes it’s ‘cause I need to go
poop for a long time.” N.T., 8/18/17, at 12. He also stated that he locked
himself in the bathroom to make Mother talk to him. Id. at 16. Z.M.W. also
stated, in response to the court’s question, that if he (Z.M.W.) were “king,”
he “would like to let her be my, like, mom still.” Id. at 20. Later, Z.M.W.
said he wanted to be adopted because he “started to love [his foster parents]
so much,” and he was happy staying with them. Id., at 27, 36. He also
stated that he did not want his visits with his mom to stop, and that he wanted
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4 On the morning of August 18, 2017, Z.M.W. was not in attendance. The
Court found the Agency’s attorney in contempt for deciding not to bring the
child to the hearing as directed by the August 3rd Order, and imposed a fine.
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the visits to be at least 15 minutes longer and at places outside of the visitation
house. See, id. at 26, 27, 32-34.
S.P., the Child’s foster mother, testified that she is supportive of him
maintaining contact with Mother. Id. at 63. She also stated that she did not
want SPLC because she believes the best option for Z.M.W. is the permanent
security of adoption. Id. at 64. She also testified that Z.M.W. had some
temporary regressive behavior issues after the court entered the SPLC Order,
which she attributed to the news that he would not be adopted. See id. at
65-67. S.P. also told the court that, if Mother’s rights were not terminated
and she and her husband remained foster parents, Z.M.W. “will always have
a place in my home and my heart.” Id. at 73.
Kayla Gould, the Agency caseworker, testified regarding the visits she
has observed between Mother and Z.M.W., noting two times where Mother
acted inappropriately. Z.M.W.’s attorney questioned Ms. Gould regarding
Mother’s physical and mental disabilities that she has observed. The court
questioned Ms. Gould about the Agency’s willingness to accommodate
Z.M.W.’s request for longer visits with Mother, and Ms. Gould stated that as
long as visits occur Monday through Friday between 8 and 4, they would be
able to transport Z.M.W. to restaurants and movies with his Mother. Id. at
91.
Stacey Durkin, the Child’s cognitive behavioral therapist, testified that
she has been treating Z.M.W weekly since February 2017 for post-traumatic
stress disorder (“PTSD”) resulting from neglect in his father’s home and his
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removal from his home. Id. at 48-9.5 Ms. Durkin stated, among other things,
that Z.M.W. told her he wanted to be adopted by his foster parents, and that
after the court changed the goal to SPLC instead of adoption, he was sad for
a couple of sessions. She also testified that Z.M.W. told her that he was
worried that he would have to go back and live with Mother. See N.T., Oct.
13, 2017, at 12, 43. She also stated that she was not surprised to hear that
Z.M.W. wanted to spend more time with Mother because he “has always
maintained that he has positive feelings towards his mother,” and “he’s never
said anything that . . . would make me believe that he didn’t want a
relationship with her.” Id. at 33. Ms. Durkin testified that she has seen no
evidence of deterioration in Z.M.W.’s relationship with his mother and that, in
her opinion, Z.M.W. “fully expects to have a continued relationship with his
mother.” Id. at 44. She stated that she could not speak to whether severing
the relationship with his mother would traumatize Z.M.W. but opined that
because “he’s never said anything negative about this relationship with his
mother currently, it could possibly cause damage to --- I mean, it would make
sense that it would cause damage to, you know, not allow him to see her
anymore, of course.” Id. at 45.
Jill Kaufman, from the Visitation House, testified that she and her staff
have frequently had to tell Mother during the one-hour visits to engage in
some activity with Z.M.W. She stated that she has observed visits between
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5The Agency had asked S.P. and R.P. to obtain psychological treatment for
Z.M.W. due to his acting out behaviors at school and at home.
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Mother and Z.M.W. on camera (with no audio), at which she saw little physical
interaction between them, and noted one instance where Mother would not
play scrabble with Z.M.W. See N.T., 9/18/17, at 12, 29. She also stated that
at the beginning, Mother used to have conversations about school and
extracurricular activities but “those conversations are extremely limited now,
very few.” N.T. at 20.
On October 16, 2017, the court denied the Agency’s Motion to change
the placement goal to adoption and ordered the Agency to arrange for visits
outside the visitation house, in a more normal, non-structured, non-
supervised, setting, for a minimum of two hours each visit at least once a
week. See Order, dated Oct. 16, 2017, at 2.
Z.M.W., through counsel, filed a Notice of Appeal and a concise
statement of errors complained of on appeal on November 16, 2017.6 The
juvenile court subsequently filed an Opinion pursuant to Pa.R.A.P. 1925(a).
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6 On November 17, 2017, the day after the appeal was filed, the juvenile court
clarified the visitation part of its October 16, 2017, Order on motion by the
Agency, and ordered the Agency to transport Z.M.W. after school each
Tuesday from the school to Mother’s home where he will visit for two hours,
beginning when he arrives there. The court further ordered the Agency to
transport the Child to the foster parents’ home at the conclusion of the visit.
The Agency appealed that Order, averring the court had no jurisdiction to
enter it and that it was an abuse of discretion to order county employees to
perform duties outside of normal work hours without the consent of, and over
objection by, the County. That Appeal is docketed in this Court at 1832 WDA
2018/J-A13025-18. On July 16, 2018, this Court affirmed the transportation
rder.
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Z.M.W. raises the following questions for our review, reordered:
1. Whether the lower court violated the constitutional rights of
the minor child when it denied the Agency’s Motion for a change
of goal and ordered an increase in the natural Mother’s visitation?
2. Whether the lower court erred and committed an abuse of
discretion when it denied the Agency’s Motion for a Change of Goal
and ordered an increase in the natural Mother’s visitation, in
contradiction of the testimony of professionals and contrary to the
best interests of the minor child?
Appellant’s Brief at 6 (unnecessary capitalization omitted).7
As a preliminary matter, issues not raised in a Rule 1925(b) concise
statement of errors will be deemed waived. Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 420, 719
A.2d 306, 309 (Pa. 1998)). “[A] [c]oncise [s]tatement which is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all.” Commonwealth v. Reeves,
907 A.2d 1, 2 (Pa.Super.2006). Thus, if a concise statement is too vague, the
court may find waiver and disregard any argument. Id. See, e.g.,
Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002) (concluding
that Rule 1925(b) Statement that “the verdict of the jury was against the
evidence,” “the verdict of the jury was against the weight of the evidence,”
and “the verdict was against the law” were too vague to permit adequate
review); Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002)
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7 Z.M.W.’s guardian ad litem joined the Brief filed by Z.M.W.’s counsel.
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(concluding that Rule 1925(b) Statement that “the verdict of the jury was
against the weight of the credible evidence as to all of the charges” was too
vague to permit appellate review); Commonwealth v. Thompson, 778 A.2d
1215, 1223-24 (Pa. Super. 2001) (finding the Rule 1925(b) statement that
the appellant's sentence for criminal trespass was unconstitutional because it
was excessive compared to sentence for simple trespass, was too vague for
the trial court to identify).
Here, Z.M.W. asserted in the second issue of his Pa.R.A.P. 1925(b)
Statement of Matters Complained of on Appeal that, in denying the Agency’s
Motion for a Goal Change, the “lower court violated the Minor Child’s rights,
pursuant to the United States and Pennsylvania Constitutions.” As the trial
court observed, this claim “lacks any specificity” from which it could “identify
the issue or issues that are being raised by the Appellant,” “fails to identify
any provision of the United States or Pennsylvania Constitutions that was
allegedly violated by the [c]ourt’s decision,” and “should be deemed waived.”
TCO, dated Dec. 15, 2017, at 4-5.
We agree. Accordingly, we conclude Z.M.W.’s first issue is waived.
Standard and Scope of Review
We review an order regarding a placement goal of a dependent child
under an abuse of discretion standard. In re B.S., 861 A.2d 974, 976 (Pa.
Super. 2004). “In order to conclude that the trial court abused its discretion,
we must determine that the court’s judgment was ‘manifestly unreasonable,’
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i.e., that the court did not apply the law, or that the court’s action was a result
of partiality, prejudice, bias or ill will, as shown by the record.” In re N.C.
909 A.2d 818, 823 (Pa. Super. 2006) (quoting In re G.P.-R., 851 A.2d 967,
973 (Pa. Super. 2004).
Appellate courts are bound by the facts as found by the trial court if they
are supported by the record. In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011).
In addition, it is the responsibility of the trial court to evaluate the credibility
of the witnesses and resolve any conflicts in the testimony. In re N.C., supra
at 823. Accordingly, “the trial court is free to believe all, part, or none of the
evidence.” Id. (citation omitted). Provided the trial court’s findings are
supported by competent evidence, this Court will affirm, “even if the record
could also support an opposite result.” In re Adoption of R.J.S., 901 A.2d
502, 506 (Pa. Super. 2006) (citation omitted).
Dependency - Generally
The law of the Commonwealth of Pennsylvania empowers a Juvenile
Court to make an award of Permanent Legal Custody as a permanency option
for a dependent child. 42 Pa.C.S. § 6351(a)(2.1). See OCY Bulletin 3130–
10–02; 314010–03, at 4 (July 30, 2010) (defining permanent legal custody
as a permanency plan for a child). The Bulletin recognizes that permanent
legal custody is not permanent, and may be terminated upon an order of the
court. Id., at 26. See also Pennsylvania Children's Roundtable Initiative,
Pennsylvania Dependency Benchbook, Harrisburg, PA: Office of Children and
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Families in the Courts, 2010, at 86 (explaining that PLC may be terminated
with judicial approval, following the filing of a petition by the agency or by the
biological parent or legal guardian). “When deemed appropriate, the trial
court has the power to permit continued visitation by the [dependent] child’s
natural parents.” In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004).8 See
also 42 Pa.C.S. § 6351(a)(2.1).
As with all matters involving children, dependency determinations are
focused on the child’s best interests. G.P.-R, supra at 973. Accordingly,
when considering an agency’s request to change a dependency goal from PLC
to adoption, the agency must prove that the goal change is best suited to the
child's safety, protection, and physical, mental, and emotional welfare. See
In re C.B., 861 A.2d 287, 295 (Pa. Super. 2004) (noting that the child’s
safety, permanency, and well-being supersede all other considerations in
dependency proceedings).
At each dependency review hearing, the trial court must consider, inter
alia, the continuing necessity for and appropriateness of the Child’s placement,
and the appropriateness and feasibility of the current placement goal for the
child. 42 Pa.C.S. § 6351(f)(1), (4). Accordingly, when considering a change
from PLC to adoption, the court may continue PLC placement “where . . . being
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8We would expect that a court reviewing a motion to terminate PLC and award
custody to a parent would ensure that the issues that led to the trial court’s
adjudication of dependency no longer exist and that the parent, at a minimum,
can provide stability, security, and safety for the child.
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placed for adoption is not best suited to the safety, protection and physical,
mental and moral welfare of the child.” 42 Pa.C.S. § 6351(f.1)(3).
Goal Change
Z.M.W. asserts that the trial court abused its discretion in denying the
Agency’s Motion for a Goal Change from SPLC to adoption because its decision
was “in contradiction of the testimony of professionals and contrary to the
best interests of the minor child.” Z.M.W.’s Brief at 6.9 Based on our review
of the record, including the notes of testimony from the hearing, we disagree.
The trial court aptly addressed this and summarized the relevant
testimony as follows:
The child stated that he loved his Mother, that he expected to
always be able to visit with his Mother, and that he wanted to
continue to see his Mother. He stated that he had never had an
opportunity to visit with his Mother outside of the Visitation House
or the [Agency] facility and that it was sometimes difficult to enjoy
the visits in that setting. He expressed enthusiasm at the thought
of having an opportunity to visit with his Mother in a different more
normal setting like in a park or at a movie theater or at a
restaurant. While he did state that there were times when he
went to the bathroom during the visit and locked the door and did
not come out until his Mother asked him to come out (as a way of
getting her attention), he clearly stated that he did not want his
visits with his Mother to stop. He even stated that he wanted the
visits to be longer because the one hour was just too short and
rushed.
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9 Z.M.W. also avers that the court’s June 16, 2017 Order changing the goal to
PLC rather than the requested adoption was improper. See Z.M.W.’s Brief at
11-12. The time for raising that argument would have been on appeal from
the June 16, 2017 Order. Since no appeal was filed from that Order, any
arguments challenging the trial court’s initial goal change to PLC are waived.
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The child’s therapist, Susan Durkin, was called by [the Agency] as
a witness and contradicted the allegation of the [Agency] that the
relationship between the Mother and child had deteriorated.
Susan Durkin testified that she had been seeing the child on a
weekly basis for eight months and did not note any deterioration
in the relationship between the child and his Mother.[10] She
stated that there was no indication of any negative behavioral
changes following visits with his Mother and that Z.M.W. expects
to have a continuing relationship with his Mother. She further
testified that it was her understanding that the child has never
said anything negative about his relationship with his Mother and
that the relationship between the Mother and son should continue
and should be fostered. This is precisely why the Court entered
an Order on October 13, 2016[,] that the visits take place in a
more normal, non-structured setting. Termination of the Mother’s
parental rights through adoption is not in this child’s best interest.
Trial Ct. Op., dated Dec. 15, 2017, at 4.
Our review of the transcript indicates that the court’s determination is
supported by competent evidence. Although Z.M.W.’s therapist stated that
Z.M.W. was sad after the goal change to SPLC rather than adoption, her
testimony overwhelmingly indicates that Z.M.W. benefits from his relationship
with his Mother as well as with his foster parents. Moreover, in addition to
Z.M.W.’s therapist’s testimony, the Agency’s caseworker testified that she
would support Z.M.W.’s continuing relationship with Mother. Thus, contrary to
Z.M.W.’s contention, the juvenile court’s decision to continue the placement
as SPLC instead of adoption is not “in contradiction of the testimony of the
professionals.”
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10 Ms. Durkin also testified that she had not seen Mother and Z.M.W. together.
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Moreover, the record supports the court’s determination that
maintaining the status quo, with the addition of more liberal visitation between
Mother and Z.M.W., is in the Child’s best interests. Z.M.W. himself testified
as to the love he feels for his Mother and how he wants to have more
meaningful, longer, normal interactions with her. The professionals
acknowledged that there is a bond between the Child and Mother.
Significantly, the Child’s therapist opined that “it makes sense that” severing
the relationship between Mother and Child would cause damage to the Child
based on how he has spoken about his feelings for Mother. While Ms. Kaufman
provided evidence regarding her observations of minimal interaction between
Mother and Z.M.W., the trial court was tasked with determining the credibility
of that testimony and weighing it accordingly.
Because we will not disturb the court’s credibility determinations, and
its findings are supported by competent evidence of record, we conclude that
the court did not err in determining that adoption is “not best suited to the
safety, protection and physical, mental and moral welfare of the child.” 42
Pa.C.S. § 6351(f.1)(3). Accordingly, it did not abuse its discretion in
maintaining the permanency goal of SPLC.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2018
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