In the Int. of: S.M., Appeal of: R.M. ( 2021 )

J-S36017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.M., FATHER : No. 1664 EDA 2021
Appeal from the Order Entered August 5, 2021
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 30 DP 2019
IN THE INTEREST OF: S.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.M., FATHER : No. 1665 EDA 2021
Appeal from the Order Entered August 5, 2021
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 31 DP 2019
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED DECEMBER 20, 2021
Appellant, R.M. (“Father”), appeals from the orders entered in the
Monroe County Court of Common Pleas, which changed the permanency goals
for S.I.M. and S.M. (“Children”) to subsidized permanent legal custodianship
(“SPLC”). We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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The trial court set forth the relevant facts and procedural history of this
case as follows:
[Children] have been placed by [the Monroe County Children
and Youth Services (“CYS”)] with [L.R. (“Maternal
Grandmother”)] for almost two … years. At the time of the
initial dependency, [R.R.] (“Mother”) was having problems
with drug use. [Children] were living primarily with her, and
[Father] had little contact. Father continued to have little
contact through CYS while [Children] were in care until
recently.
On November 5, 2020, a hearing was held to change the
goal to termination of parental rights and adoption
(“TPR”).[1] At the time, Mother had made no progress on
her goals, had moved to South Carolina, and had very little
contact with [Children]. Father had little contact with
[Children] as well. However, he indicated at that time that
he wanted to re-establish a relationship and be considered
a resource for [Children] since Mother was not….
(Trial Court Opinion, filed August 5, 2021, at 2).
On April 27, 2021, CYS requested a goal change to SPLC placement with
Maternal Grandmother and termination of dependency. A permanency review
hearing was held on July 30, 2021, where the following testimony was
presented:
…Father was initially agreeable to SPLC in lieu of TPR, but
now wants to pursue reunification.
Father has appropriate housing and income, and there are
no concerns for the safety of [Children] if placed in his care.
The concern of CYS is that Father has had only sporadic
contact with [Children], that they have never lived with
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1 The trial court denied CYS’s request to change the goal to adoption because
Father posed no danger to Children and wanted to maintain a relationship with
them but noted that Father had not expressed an intent to take custody of
Children.
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Father, and only recently had their first overnight stay at
Father’s residence. Father resides with his wife and adult
daughter in close proximity to [Maternal Grandmother] and
[Children]. Father explained his delay in being involved and
wanting reunification was due to his hope that Mother would
get her life together and get [Children] back. He stated that
when he realized she would not or could not, that he should
step up as the other parent.
(Id.)
On August 5, 2021, the court granted CYS’s request for goal change to
SPLC placement with Maternal Grandmother. Father timely filed separate
notices of appeal and concise statements of errors on August 13, 2021. On
September 7, 2021, this Court consolidated the appeals sua sponte.
Father raises the following issue for our review:
Did the trial court err and abuse its discretion when it
determined that giving [SPLC] to … Maternal Grandmother
would serve the needs and welfare of the children when
[Father] is ready willing and able to take the children; there
are not allegations of abuse or neglect concerning Father;
Father is speaking with the children every day for a few
minutes during the week and visiting all day on the
weekends; and the Agency has no concerns regarding
[Children’s] return to Father?
(Father’s Brief at 4).
On appeal, Father argues that since the November 2020 goal change
hearing, he has worked diligently to regain custody of Children. Father asserts
that he has obtained appropriate housing, maintained stable employment,
increased visitation with Children, and fully complied with the CYS Service
Plan. Father maintains that he has never posed a danger to Children and has
formed a parental bond with them. Father contends that as Children’s natural
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father who is ready, able and willing to provide stable care for Children, he
should not have to fight with Maternal Grandmother for custody. Father
concludes that “it is in the best interests of the children that the goal remain
reunification with [Father] and [CYS] work toward this goal.” (Id. at 11). We
disagree.
On appeal, goal change decisions are subject to an abuse of discretion
standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).
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
court’s findings are supported by competent evidence of
record, we will affirm, “even if the record could also support
an opposite result.”
Id. at 822-23 (internal citations omitted).
The Juvenile Act controls the disposition of dependent children. In re
R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008). Section 6351 provides in
relevant part:
§ 6351. Disposition of dependent child
(a) General rule.—If the child is found to be a
dependent child the court may make any of the following
orders of disposition best suited to the safety, protection
and physical, mental, and moral welfare of the child:
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(1) Permit the child to remain with his parents,
guardian, or other custodian, subject to conditions
and limitations as the court prescribes, including
supervision as directed by the court for the
protection of the child.
* * *
(2.1) Subject to conditions and limitations as the
court prescribes, transfer permanent legal custody
to an individual resident in or outside this
Commonwealth, including any relative, who, after
study by the probation officer or other person or
agency designated by the court, is found by the
court to be qualified to receive and care for the
child. A court order under this paragraph may set
forth the temporary visitation rights of the parents.
The court shall refer issues related to support and
continuing visitation by the parent to the section of
the court of common pleas that regularly
determines support and visitation.
* * *
(e) Permanency hearings.—
(1) The court shall conduct a permanency
hearing for the purpose of determining or
reviewing the permanency plan of the child, the
date by which the goal of permanency for the child
might be achieved and whether placement
continues to be best suited to the safety, protection
and physical, mental and moral welfare of the
child. In any permanency hearing held with
respect to the child, the court shall consult with the
child regarding the child’s permanency plan,
including the child’s desired permanency goal, in a
manner appropriate to the child’s age and
maturity. If the court does not consult personally
with the child, the court shall ensure that the views
of the child regarding the permanency plan have
been ascertained to the fullest extent possible and
communicated to the court by the guardian ad
litem under section 6311 (relating to guardian ad
litem for child in court proceedings) or, as
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appropriate to the circumstances of the case by the
child’s counsel, the court-appointed special
advocate or other person as designated by the
court.
* * *
(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.
* * *
(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
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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.
* * *
(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
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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.
* * *
(g) Court order.—On the basis of the determination
made under subsection (f.1), the court shall order the
continuation, modification or termination of placement or
other disposition which is best suited to the safety,
protection and physical, mental and moral welfare of the
child.
42 Pa.C.S.A. § 6351(a), (e), (f), (f.1), (g).
Thus, the Juvenile Act provides that “upon the filing of a petition by a
county children and youth agency that alleges the dependent child’s current
placement is not safe, and the physical, mental, and moral welfare of the child
would best be served if [SPLC] were granted,” the court can consider SPLC.
In re S.H., 71 A.3d 973, 978 (Pa.Super. 2013), appeal denied, 622 Pa. 761,
80 A.3d 778 (2013).
In Pennsylvania, a juvenile court may award permanent
legal custody to a child’s caretaker pursuant to Section
6351(a)(2.1) of the Juvenile Act. This is an arrangement
whereby a juvenile court discontinues court intervention as
well as supervision by a county agency, and awards custody
of a dependent child, on a permanent basis, to a custodian.
Parental rights are not terminated….
… In order for the court to declare the custodian a
“permanent legal custodian” the court must find that neither
reunification nor adoption is best suited to the child’s safety,
protection and physical, mental and moral welfare.
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Id. (internal citations omitted).
Although the agency has the burden to show a goal change
would serve the child’s best interests, safety, permanency,
and well-being of the child must take precedence over all
other considerations under Section 6351. The parent’s
rights are secondary in a goal change proceeding.
In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010) (internal quotation marks
and citations omitted).
Instantly, the court determined that a goal change to SPLC placement
was appropriate. The court previously decided adoption was not in Children’s
best interests because Father posed no danger to Children and had developed
a bond with them. Regarding reunification with Father, the court found:
It was clear that Father had little contact with [Children]
prior to dependency, and sporadic visits with them
thereafter until April or May of this year. Only very recently
has Father made an effort to see [Children] regularly, but
for very short periods of time.
[Children] are bonded with [Maternal Grandmother]. They
are starting to form a bond with Father, but prefer to live
with [Maternal Grandmother]. [Children] have lived with
[Maternal Grandmother] for a total of [three and a half]
years, the past 22 months of which have been through
placement by CYS. Father had little involvement with the
[Children] in their lifetimes, even though [Maternal
Grandmother] has never kept them from Father. She would
also encourage visitation with Father in the future.
If dependency is terminated, and SPLC is started, Father
could always seek custody or custodial rights through the
courts. Unlike TPR and adoption, placement with [M]aternal
[G]randmother and SPLC are not necessarily permanent,
nor does it bar Father from seeing the minor children or
pursuing custodial rights.
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* * *
[Children] want to stay with Maternal Grandmother, to
whom they are bonded. It does not appear [Children] are
opposed to spending time with Father, just that they are not
ready to live with him full-time. That might be something
that changes with time, but not something to be forced right
now. Termination of dependency, SPLC, and placement
with [M]aternal [G]randmother is in [Children]’s best
interests.
(Trial Court Opinion at 2-3, 4). The record supports the court’s analysis. On
this record, the court properly concluded that neither reunification nor
adoption are appropriate based on Children’s newly developing relationship
with Father, and their preference and comfort with continuing in Maternal
Grandmother’s care. See In re S.H., supra. Thus, we see no abuse of
discretion by the court in determining that SPLC placement with Maternal
Grandmother serves Children’s best interests. See In re R.M.G., supra; In
re N.C., supra. Accordingly, we affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2021
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