In the Interest of: A.C., Appeal of: A.C. ( 2018 )

J-S72018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.C., MOTHER :
:
:
:
: No. 1294 MDA 2018
Appeal from the Order Entered July 9, 2018
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000278-2017
IN THE INTEREST OF: L.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.C., MOTHER :
:
:
:
:
: No. 1295 MDA 2018
Appeal from the Order Entered July 9, 2018
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000279-2017
IN THE INTEREST OF: J.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.C., MOTHER :
:
:
:
:
: No. 1296 MDA 2018
Appeal from the Order Entered July 9, 2018
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000280-2017
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
J-S72018-18
MEMORANDUM BY SHOGAN, J.: FILED: DECEMBER 31, 2018
In these consolidated dependency cases, Appellant, A.C. (“Mother”),
appeals from orders entered on July 9, 2018, that changed prior permanency
review orders from “reunification” to “adoption with a concurrent goal of
reunification” with respect to Mother’s three children, A.C., a son born in July
of 2012, L.C., a son born in February of 2014, and J.C., a daughter born in
January of 2016 (collectively “the children”).1 After careful review, we affirm.2
The trial court summarized the history of these cases as follows:
The family involved in this appeal has been involved with
the York County Children Youth & Family agency (hereinafter
“CYF” or the “Agency”) since September 30, 2016, when the
Agency received a referral citing concerns regarding Mother’s
mental health and possible medical neglect. [A.C., L.C., and J.C.]
are six, four[,] and two, respectively. Following their
investigation, CYF accepted the case for services on November 28,
201[6]. At the time, the family resided in a house provided by a
local church. However, on March 23, 2017, Mother was
involuntarily expelled from the house. The family then began to
stay with Mother’s friends or in hotels. CYF attempted to arrange
for and provide services to Mother, but Mother failed to participate
or comply with service providers. The children were twice placed
in foster care via the Safe Families Program, which provides
temporary foster homes on a voluntary basis. On August 9, 2017,
Mother disclosed to CYF that she had a history of drug abuse.
On August 15, [2017], it was reported that the Safe Families
foster father had spanked the two boys, which is against program
____________________________________________
1 We point out that one child, A.C., has the same initials as Mother. In our
discussion, A.C. refers to the minor child.
2 E.C. (“Father”) participated in the proceedings at the trial-court level.
However, Father has not filed a separate appeal in this matter, and he is not
a party to the instant appeal.
-2-
J-S72018-18
policy. As a result, the children would have to be removed from
the home. When CYF attempted to contact Mother, she informed
the Agency that she was in New Jersey. Because Mother’s leaving
the state had violated their policy, Safe Families would not place
the children in another one of its foster homes[.] On August 16,
2017, an Application for Emergency Protective Custody was filed,
and temporary legal and physical custody of the children were
awarded to CYF. A Shelter Care Hearing was held on August 21,
[2017], but continued to August 28, [2017], due to Mother’s
request for counsel. Counsel was obtained, and the Shelter Care
Hearing was attempted. However, Father, unable to attend due
to incarceration, and participating by telephone requested a
continuance in order to obtain counsel. The Shelter Care Hearing
was rescheduled for September 18, 2017. On September 18,
2017[,] a combined Shelter Care/Adjudicatory hearing was held.
The children were adjudicated dependent and it was determined
that it was not in the best interest of the children to be returned
to Mother. The children were placed in [foster care].
Over the course of the next eleven months, Status Review,
Permanency Review and Dispositional Review proceedings were
held at appropriate intervals. Throughout that time period,
Mother’s progress varied from moderate to minimal. ... The most
recent hearing was held on July 9, 2018. Following the hearing,
a Permanency Review Order was entered, changing the primary
goal from reunification to adoption, with a concurrent goal of
reunification.
Trial Court Opinion, 8/22/18, at 2-3.
On August 3, 2018, Mother filed a separate appeal at each of the trial
court docket numbers. Both the trial court and Mother complied with Pa.R.A.P.
1925. On August 21, 2018, Mother filed an application to consolidate the
three appeals pursuant to Pa.R.A.P. 513. This Court granted Mother’s motion
and consolidated the appeals on August 22, 2018.
On appeal, Mother raises the following issues:
I. Whether the lower court erred by changing the primary goal
from reunification with a parent or guardian to adoption based on
-3-
J-S72018-18
the court’s failure to provide adequate notice that a change of goal
was being considered and that the permanency review hearing
was also a change of goal hearing.
II. Whether the lower court erred by changing the goal from
reunification to adoption as clear and convincing evidence was not
presented to support the change of goal.
Mother’s Brief at 4 (full capitalization omitted).
Prior to addressing the issues Mother raises in her appeal, we note that
at the outset of the dependency proceedings, Katherine Doucette, Esquire,
was appointed guardian ad litem (“GAL”) for the children, and she represented
the children’s best interests. Pursuant to 23 Pa.C.S. § 2313(a), trial courts
are required to appoint counsel to represent the legal interests of children in
contested involuntary termination proceedings. In re Adoption of L.B.M.,
161 A.3d 172, 179-180 (Pa. 2017). Additionally, “during contested
termination-of-parental-rights proceedings, where there is no conflict between
a child’s legal and best interests, an attorney-[GAL] representing the child’s
best interests can also represent the child’s legal interests.” In re T.S., 192
A.3d 1080, 1092 (Pa. 2018). Our Supreme Court explained that if a child’s
preferred outcome is not ascertainable, there can be no conflict between the
child’s legal interests and best interests, and therefore, 23 Pa.C.S. § 2313(a)
is satisfied where the court appoints only an attorney-GAL who represents the
child’s best interests. Id. at 1092-1093.
Recently, this Court extended the requirements of L.B.M. to
dependency actions. See In re J’K.M., 191 A.3d 907, 916 (Pa. Super. 2018)
-4-
J-S72018-18
(reversing an order denying appointment of a separate counsel for
dependency proceedings where there was a conflict between the child’s best
interests and legal interests). In the case at bar, at the time of the July 9,
2018 permanency review orders, A.C. was six years old, L.C. was four, and
J.C. was two, and the trial court noted that the children’s individual
preferences “have been ascertained to the fullest extent possible and
communicated to the court by the [GAL].” Order, 7/9/18 (emphasis
added). Neither the trial court nor the GAL has stated that the children’s best
interests and legal interests are in conflict. Accordingly, at this juncture, we
conclude it is unnecessary to direct the trial court to appoint separate legal
counsel. Nevertheless, in future proceedings, if the trial court determines that
there is a conflict between any child’s preferred outcome and his or her best
interests, that child must have separate legal counsel to advance his or her
legal and best interests. Interest of Q.R., ___ A.3d ___, 2018 PA Super 309(Pa. Super. 2018).
In dependency matters, we review goal-change decisions for an abuse
of discretion. In Interest of R.W., 169 A.3d 129, 134 (Pa. Super. 2017).
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was “manifestly
unreasonable,” 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. We are bound by the trial court’s findings
of fact that have support in the record. The trial court, not the
appellate court, is charged with the responsibilities of evaluating
credibility of the witness and resolving any conflicts in the
testimony. In carrying out these responsibilities, the trial court is
free to believe all, part, or none of the evidence. When the trial
-5-
J-S72018-18
court’s findings are supported by competent evidence of record,
we will affirm, “even if the record could also support an opposite
result.”
Id. (quoting In re R.M.G., 997 A.2d 339, 345 (Pa. Super. 2010) (citation
omitted)).
Mother first avers that the trial court failed to provide her with adequate
notice that a placement-goal change was possible at the permanency review
hearing. Mother’s Brief at 16. We disagree.
This Court has held that “there is no statutory requirement that a
juvenile court must provide express notice that it is contemplating a goal
change.” In Interest of L.T., 158 A.3d 1266, 1278 (Pa. Super. 2017).
Moreover, “a review of the current goal’s feasibility is a required component
of every permanency review hearing.” Id. In the case at bar, the May 1,
2018 status-review order informed Mother that a goal change was possible.
Mother now avers that she did not receive “formal notice” of the permanency-
review hearing. Mother’s Brief at 18. However, Mother attended the July 9,
2018 permanency-review hearing, and she was represented by counsel at that
hearing. Moreover, at the very beginning of the hearing, counsel for CYF
announced that the hearing was a “permanency review hearing for [the] three
minor children.” N.T. 7/9/18, at 2. Mother’s counsel did not object to the
permanency-review hearing or ask for a continuance, and a goal change is
possible at any permanency review hearing. L.T., 158 A.3d at 1278.
-6-
J-S72018-18
Accordingly, Mother’s claim that she did not receive notice of a possible goal
change is baseless and entitles her to no relief.
Next, Mother argues that the trial court erred by changing the
permanency goal because the evidence presented was not sufficient. We
disagree.
Factors that the trial court must consider at a permanency review
hearing are set forth in 42 Pa.C.S. § 6351, as follows:
(f) Matters to be determined at permanency hearing.-- At
each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the Commonwealth,
whether the placement continues to be best suited to the
safety, protection and physical, mental and moral welfare of
the child.
-7-
J-S72018-18
* * *
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent
or eliminate the need to remove the child from the child’s
parent, guardian or custodian or to preserve and reunify the
family need not be made or continue to be made, whether
the county agency has filed or sought to join a petition to
terminate parental rights and to identify, recruit, process
and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited
to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to
terminate parental rights would not serve the needs
and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the
child’s parent, guardian or custodian within the time
frames set forth in the permanency plan.
(10) If a sibling of a child has been removed from his home
and is in a different placement setting than the child,
whether reasonable efforts have been made to place the
child and the sibling of the child together or whether such
joint placement is contrary to the safety or well-being of the
child or sibling.
(11) If the child has a sibling, whether visitation of the child
with that sibling is occurring no less than twice a month,
unless a finding is made that visitation is contrary to the
safety or well-being of the child or sibling.
(12) If the child has been placed with a caregiver, whether
the child is being provided with regular, ongoing
opportunities to participate in age-appropriate or
developmentally appropriate activities. In order to make the
determination under this paragraph, the county agency shall
document the steps it has taken to ensure that:
-8-
J-S72018-18
(i) the caregiver is following the reasonable and
prudent parent standard; and
(ii) the child has regular, ongoing opportunities to
engage in age-appropriate or developmentally
appropriate activities. The county agency shall consult
with the child regarding opportunities to engage in
such activities.
(f.1) Additional determination.--Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return of
the child is best suited to the safety, protection and physical,
mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental rights
in cases where return to the child’s parent, guardian or
custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian
in cases where the return to the child’s parent, guardian or
custodian or being placed for adoption is not best suited to
the safety, protection and physical, mental and moral
welfare of the child.
(4) If and when the child will be placed with a fit and willing
relative in cases where return to the child’s parent, guardian
or custodian, being placed for adoption or being placed with
a legal custodian is not best suited to the safety, protection
and physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another planned
permanent living arrangement which is approved by the
court, the following shall apply:
(i) The child must be 16 years of age or older.
-9-
J-S72018-18
(ii) The county agency shall identify at least one
significant connection with a supportive adult willing
to be involved in the child’s life as the child transitions
to adulthood, or document that efforts have been
made to identify a supportive adult.
(iii) The county agency shall document:
(A) A compelling reason that it would not be
best suited to the safety, protection and
physical, mental and moral welfare of the child
to be returned to the child’s parent, guardian or
custodian, to be placed for adoption, to be
placed with a legal custodian or to be placed
with a fit and willing relative.
(B) Its intensive, ongoing and, as of the date of
the hearing, unsuccessful efforts to return the
child to the child’s parent, guardian or custodian
or to be placed for adoption, to be placed with a
legal custodian or to be placed with a fit and
willing relative.
(C) Its efforts to utilize search technology to find
biological family members for the child.
(iv) The court shall:
(A) Ask the child about the desired permanency
goal for the child.
(B) Make a judicial determination explaining
why, as of the date of the hearing, another
planned permanent living arrangement is the
best permanency plan for the child.
(C) Provide compelling reasons why it continues
not to be in the best interests of the child to
return to the child’s parent, guardian or
custodian, be placed for adoption, be placed
with a legal custodian or be placed with a fit and
willing relative.
- 10 -
J-S72018-18
(D) Make findings that the significant connection
is identified in the permanency plan or that
efforts have been made to identify a supportive
adult, if no one is currently identified.
(f.2) Evidence.--Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including evidence
of the use of alcohol or a controlled substance that places the
health, safety or welfare of the child at risk, shall be presented to
the court by the county agency or any other party at any
disposition or permanency hearing whether or not the conduct was
the basis for the determination of dependency.
42 Pa.C.S. § 6351(f)-(f.2).
Additionally, in a change of goal proceeding, the best interests of the
children, and not the interests of the parent, must guide the trial court; the
parent’s rights are secondary. In re M.T., 101 A.3d 1163, 1173 (Pa. Super.
2014). “The burden is on the Agency to prove the change in goal would be in
the child’s best interests.” Id. (citation omitted). Finally, the court must
consider the bonds a child shares with his parents, foster parents, and siblings.
Id. (citation omitted). This Court has stated:
The focus of all dependency proceedings, including change of goal
proceedings, must be on the safety, permanency, and well-being
of the child. The best interests of the child take precedence over
all other considerations, including the conduct and the rights of
the parent.... While parental progress toward completion of a
permanency plan is an important factor, it is not to be elevated to
determinative status, to the exclusion of all other factors.
Id. (citation omitted).
In the case at bar, the trial court addressed this issue as follows:
At the most recent permanency review hearing, Mother’s progress
was again determined to be minimal. The caseworker testified that
Mother has obtained employment and has been visiting with the
- 11 -
J-S72018-18
children. While we commend Mother’s efforts, we note that as
recently as November 22, 2017, the Agency reported that Mother
appeared overwhelmed at visits, and that the Foster mother
reported that the children were not fed during visits, and that the
youngest was returned with urine and feces in her clothing.
Recommendation-Status Review, at 1. November 22, 2017.
Mother’s visits continue to be supervised, and the supervisor
stated at the most recent proceeding that Mother continued to
need coaching during the visits.
Mother has been ordered to undergo mental health and drug
and alcohol evaluations several times, on November 22, 2017,
January 29, and May 1, 2018. Mother reports having undergone
the evaluations, but no reports or confirmation have been
documented to this Court because Mother has failed to execute a
release form. We have only the caseworkers statement that
Mother does not require services for drug and alcohol issues at
the present time. However, without documentation we cannot
ascertain with certainty that the evaluations occurred, or what the
results were if they did. Hr’g_Tr., at 12-13. July 9, 2018.
Similarly, we are without evidence that Mother has obtained
appropriate and stable housing. Appropriate and stable housing
have been an issue with this family since very near the beginning
of the Agency’s involvement.
One service provider, Family Engagement Specialist, Jessica
Myers testified that there have been “minor safety concerns”
during supervised visits, that Mother continues to need coaching,
and that [F]oster mother reports disciplinary problems with the
children following visits. Id. 19-22. Ms. Myers testified that further
behavior modification coaching with Mother is necessary. Foster
mother confirmed Ms. Myers’ testimony citing a plethora of
behavioral issues the children have exhibited. Id. 23-30.
The children have been continuously in placement for
roughly eleven months, and while the statutory recommendation
of fifteen months is yet to be surpassed, it is fast approaching.
While Mother has arguably made minimal progress, the Agency
has been involved with this family for twenty-three months. “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 Adoption of M.E.P., 825 A.2d 1266, 1276
(Pa.Super. 2003). And while the law does not give concrete
- 12 -
J-S72018-18
deadlines for goals and placement, “The process of reunification
or adoption should be completed-within eighteen (18) months.”
In re Adoption of R.J.S., 901 A.2d 502 (Pa.Super 2006) (internal
citations omitted) (emphasis in original). Time is of the essence
for these children. While we would like nothing more than to see
reunification, that can only occur when it becomes the option that
best serves the best interests of these children. Thus, it remains
the concurrent goal. However, for the reasons stated above,
including the length of time the Agency has been involved, it is
clear that it is time for another option to become the primary goal.
That option is adoption.
Trial Court Opinion, 8/22/18, at 6-8.
After review, we agree with the trial court. The record supports the trial
court’s conclusions that although Mother made some progress toward
reunification with the children, adoption may be in the children’s best interests
in the immediate future. Accordingly, we discern no error of law or abuse of
discretion in the trial court changing the goal from reunification to reunification
with a concurrent goal of adoption.
For the reasons set forth above, we conclude that Mother is entitled to
no relief in these consolidated appeals. Therefore, we affirm the July 9, 2018
orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: December 31, 2018
- 13 -