In the Interest of: A.W. Appeal of: R.W. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.W., FATHER
No. 1715 MDA 2016
Appeal from the Order Entered September 30, 2016
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000206-2015
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 08, 2017
R.W. (“Father”) appeals from the September 30, 2016 order in the
Court of Common Pleas of York County changing the placement goal to
adoption with a concurrent goal of placement with a legal custodian with
respect to his son, A.W. (“Child”), born in July of 2015.1 We reverse and
remand in accordance with the following decision.
The record reveals the following facts and procedural history. On
September 15, 2015, the trial court placed Child in the legal and protective
custody of York County Children, Youth, and Families (“CYF” or “Agency”).
CYF then placed Child in kinship foster care. Adjudication, 9/24/15, at 1.
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In addition, the order changed the placement goal with respect to L.F.
(“Mother”). Mother did not file a notice of appeal.
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On September 24, 2015, the court adjudicated Child dependent, and his
placement goal was return to parent with a concurrent goal of adoption.
At the time of Child’s placement, Father was incarcerated. The order
of adjudication required Father to comply with family service plan (“FSP”)
goals including but, not limited to, securing stable employment, housing,
and in-home services. Adjudication, 9/24/15, at 3. With respect to visits
with Child, the order provided, “Father may request supervised visitation
upon approval from SCI [State Correctional Institution] or upon his release
[from prison] and return to York County.” Id. at 2.
On December 17, 2015, a status review hearing2 occurred before a
dependency master, who found that Father remained incarcerated at SCI
Coal Township, and, although he has had no telephone contact with CYF, he
“telephones about once a week to speak with the child.” Order, 12/18/15,
at 2. The court adopted the findings of the master by order dated December
18, 2015.
On March 9, 2016, the trial court held a permanency review hearing,
during which the CYF caseworker, Wanda Muhly, and Father testified via
telephone from SCI Coal Township. Based on the testimony, the trial court
found that Father has been moderately compliant with the permanency plan
“in that [he] remains incarcerated at Coal Township SCI. He is eligible for
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2
The trial court explained that a status review “is an expedited
[p]ermanency [h]earing.” Trial Court Opinion, 11/10/16, at 1.
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parole in late April or early May, 2016. Father would like to be a resource
for his son. He contacts the kinship parents once a week and writes letters
to his son.” Order, 3/9/16, at 1.
On April 25, 2016, Father was transferred to a halfway house in
Harrisburg. Order, 6/9/16, at 2. Thereafter, on June 9, 2016, a status
review hearing was held before the master, who found that Father “works
with the Agency to arrange visits and with the Agency to arrange a home
team. He opened with Catholic Charities yesterday.” Id. at 2. Further, the
master found that Father is employed full-time at Old Country Buffet in
Harrisburg, inter alia. The trial court adopted the master’s findings by order
dated June 9, 2016.
The master held the next permanency review hearing on August 30,
2016, and found that Father was released from the halfway house in
Harrisburg five days earlier, on August 25, 2016, and that he had moved to
the York area. Order, 8/30/16, at 1. The master concluded that Father was
in minimal compliance with the permanency plan based on finding that
“Father was assigned a Catholic Charities Team on June 8, 2016, but that he
missed appointments, and the therapeutic portion of the team closed out
unsuccessfully.” Id. Further, the master found that “[t]he GAL notes that
Father had the opportunity to visit the Child, attend doctor’s appointments
and call the Foster Parents regarding the welfare of the Child and did not.”
Id. at 1-2.
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However, the master recommended as follows on August 30, 2016.
Father states that he has a lot on his plate since being out of
prison and he wants to have the opportunity to try to work
towards reunification now that he is in the York area. [Catholic
Charities] is willing to reopen if the Agency makes a referral.
The Agency will make the referral for the team to reopen with
Father. Should there be a delay in [Catholic Charities] starting,
the Agency is to work with Father to arrange supervised
visitation through the Agency.
Id. at 2. The trial court adopted the findings of the master by order dated
August 31, 2016.
On September 30, 2016, the trial court held a status review hearing
during which Brandon Ambrose, the CYF caseworker, testified.3 By order the
same date, the court changed the goal to adoption with a concurrent goal of
placement with a legal custodian. The court directed CYF “to start the
termination of parental rights process in regards to both parents.” Order,
9/30/16, at 2.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a)
opinion on November 10, 2016.
Father presents the following issue for our review:
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3
CYF’s counsel stated during the subject proceedings that the trial court
“requested this expedited hearing to evaluate where we stand in regard to
this matter.” N.T., 9/30/16, at 3.
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1. Whether the trial court abused its discretion in changing the
dependent child’s permanency goal from reunification to
adoption following a status review hearing where the record did
not support such a goal change[?]
Father’s brief at 4 (footnote omitted).
We have explained our scope and standard of review in dependency
cases as follows.
[W]e must accept the facts as found by the trial court unless
they are not supported by the record. Although bound by the
facts, we are not bound by the trial court’s inferences,
deductions, and conclusions therefrom; we must exercise our
independent judgment in reviewing the court’s determination as
opposed to the findings of fact, and must order whatever right
and justice dictate. We review for abuse of discretion. Our
scope of review, accordingly, is of the broadest possible nature.
It is this Court’s responsibility to ensure that the record
represents a comprehensive inquiry and that the hearing judge
has applied the appropriate legal principles to that record.
Nevertheless, we accord great weight to the court’s fact-finding
function because the court is in the best position to observe and
rule on the credibility of the parties and witnesses.
In the Interest D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009) (citation
omitted).
A goal change request is governed by the Juvenile Act, 42 Pa.C.S.A.
§ 6301 et seq., which was amended in 1998 to conform to the federal
Adoption and Safe Families Act (“ASFA”), 42 U.S.C. § 671 et seq. In re
M.S., 980 A.2d 612, 615 (Pa. Super. 2009). We have recognized that
“[b]oth statutes are compatible pieces of legislation seeking to benefit the
best interest of the child, not the parent. . . . ASFA promotes the
reunification of foster care children with their natural parents when feasible.
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. . . Pennsylvania’s Juvenile Act focuses upon reunification of the family,
which means that the unity of the family shall be preserved ‘whenever
possible.’” Id. (citing 42 Pa.C.S.A. § 6301(b)(1)). As such, child welfare
agencies are required to make reasonable efforts to return a foster child to
his or her biological parent. In re N.C., 909 A.2d 818, 823 (Pa. Super.
2006). When those efforts fail, the agency “must redirect its efforts toward
placing the child in an adoptive home.” Id.At permanency review hearings for dependent children removed from
the parental home, a trial court must consider the following factors:
(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.
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...
(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.
. . .
42 Pa.C.S.A. § 6351(f)(1)-(6), (9). “These statutory mandates clearly place
the trial court’s focus on the best interests of the child.” In re S.B., 943
A.2d at 978 (citation omitted). We have stated that, “[s]afety, permanency,
and well-being of the child must take precedence over all other
considerations.” Id. (citation omitted) (emphasis in original). Moreover,
“the burden is on the child welfare agency . . . to prove that a change in goal
would be in the child’s best interest.” In re R.I.S., 36 A.3d 567, 573 (Pa.
2011).
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Instantly, in its Rule 1925(a) opinion, the trial court stated that it
changed Child’s placement goal based on his “lack of a bond with the
biological parents and the need for the child to have permanency.” Trial
Court Opinion, 11/10/16, at 2 (citing N.T., 9/30/16, at 11). The court
explained as follows, in part.
The child has only ever lived [with] his foster family, and
therefore, they are the only family the child has known. The
child was adjudicated dependent approximately a year prior to
the change of goal to adoption on September 30, 2016. During
that year, minimal progress was made towards the prior goal of
reunification. Father was incarcerated, but is now living with his
aunt; however, he does not have satisfactory housing for
reunification. Father has not made any effort to engage in the
child’s life since being released from prison; he has not visited,
attended doctor’s appointments, or even called on the child’s
birthday.
Id. at 2-3 (citations to record omitted).
On appeal, Father argues that the trial court erred by failing to address
all of the relevant factors set forth in Section 6351(f) before issuing the
subject order. Specifically, Father asserts that the court “did not reference
the timeframe set forth in the family service plan or otherwise determine the
likely date by which the child’s reunification with [Father] might be achieved.
Nor did the court determine whether or not CYF had made reasonable efforts
to finalize the permanency plan that was in effect.” Father’s brief at 12.
Further, Father argues that the record does not support the court’s findings
with respect to (1) the lack of a bond between Father and Child and (2) that
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Father “has not made any effort to engage in the child’s life since being
released from prison” and/or “has not visited” Child. Id. at 13.
CYF and the Guardian Ad Litem filed a joint appellee brief in which
they assert that Father has made no progress in addressing the issues that
caused Child’s placement, and that the goal change order is in Child’s best
interest.4 For the reasons that follow, we disagree.
By the time of the subject proceedings, Child was in placement for
twelve and one-half months, and Father was released from prison during the
last five of those months. Indeed, on April 25, 2016, Father was paroled to
a halfway house in Harrisburg. On August 25, 2016, Father was released
from the halfway house, and he immediately relocated to York County.
Therefore, Father had been living in York County for approximately one
month at the time of the September 30, 2016 hearing.
The record reveals that Father had made progress with the
permanency plan from the time of his release from prison through the status
review hearing on June 9, 2016. At the permanency review on August 30,
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4
We observe that, during the subject proceedings, CYF did not request a
goal change. Rather, counsel for CYF stated as follows on the record in open
court: “I think the father is no longer . . . shackled by his incarceration type
issues. So, I think the next few months are exceedingly important for father
to make some progress in regards to their reunification efforts or . . . the
[A]gency is going to look at alternate goals.” N.T., 9/30/16, at 5. In
contrast, the Guardian Ad Litem requested a goal change stating, “I do take
more of a hard line on this case. . . . I don’t feel like my client is treated
fairly in having to wait until father gets his act together when he already has
had the opportunity to do so.” Id. at 10.
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2016, the court found, in part, that Father had missed appointments with
the Catholic Charities team, “and the therapeutic portion of the team closed
out unsuccessfully.” Order, 8/30/16, at 1. However, Father requested the
opportunity to work towards reunification now that he has relocated to York
County. As such, the August 30, 2016 order directed CYF to make “the
referral for the [Catholic Charities] team to reopen with Father.” Id. at 2.
Further, the order directed that “[s]hould there be a delay in [Catholic
Charities] starting, the Agency is to work with Father to arrange supervised
visitation through the Agency.” Id.At the subject hearing one month later, on September 30, 2016, the
court found that Catholic Charities reopened with Father on September 22,
2016, and that supervised visits with Child began on September 28, 2016.
Order, 9/30/16, at 2; Attachment to 30-Day Expedited Status Review
Hearing Order, 9/30/16. In addition, the court found that Father is
employed full-time at Old Country Buffet. Order, 9/30/16, at 2. Thus,
Father made progress in one month by reopening with Catholic Charities,
having a supervised visit with Child, and working full-time.
With respect to housing, Father’s counsel stated during the subject
proceedings that Father resided with his aunt, which he stated was not
appropriate for reunification with Child. N.T., 9/30/16, at 9. However,
Father’s counsel stated, “I believe Catholic Charities is going to be assisting
with search[ing] for appropriate housing.” Id.- 10 -
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In its Rule 1925(a) opinion, the trial court stated that, “while Father is
making progress, the child cannot wait indefinitely on Father to become a
resource.” Trial Court Opinion, 11/10/16, at 3. We deem the court’s
conclusion unreasonable when Father was released from prison for five
months before the subject proceedings; he relocated to York County upon
his release from the halfway house one month before the hearing; and he
was making progress in the permanency plan. Further, there is no record
evidence that Child has any physical, emotional, or developmental special
needs. Therefore, based on the totality of the evidence, we conclude that
CYF failed to satisfy its burden of establishing that a change in goal would be
in Child’s best interest. As such, we conclude that the court abused its
discretion in changing Child’s placement goal. Accordingly, we reverse the
order, and remand this matter to the trial court to issue an order
establishing reunification with Father as Child’s placement goal with a
concurrent goal of adoption.
Order reversed. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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