In the Int. of: N.D.B., a minor Appeal of: A.A.B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.D.B., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.A.B. :
:
: No. 2011 MDA 2013
Appeal from the Order Entered October 14, 2013
In the Court of Common Pleas of Centre County
Civil Division No(s).: CP-14-DP-0000034-2012
BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 29, 2014
October 14, 2013, in the Centre County Court of Common Pleas, changing
reunification to adoption. Father contends the court erred in changing the
progress in alleviating the conditions which led to the placement, (2) there is
a strong parent ad litem opposed the goal
change. We remand for the trial court to file a supplemental Pa.R.A.P.
1925(a) opinion addressing the guardian opposition to the goal
*
Former Justice specially assigned to the Superior Court.
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change and we order the guardian ad litem to file a brief with this Court in
The trial court summarized the facts and procedural posture of this
case as follows:
been involved with [Father] intermittently since June 10,
1997, when the agency received a referral due to concerns
that [Father] had been physically violent with his then
infant son (A.A.B. born December 22, 1996). A.A.B. was
placed, through an agreement with his parents, with his
paternal grandparents. On September 9, 1998, the court
determined that A.A.B. was no longer dependent, and
since that time, A.A.B. has continued in the care and
son, J.M.B., was born on January 31, 1999, and is not in
[Father] has a significant criminal history. [Father] has
previously been charged with receiving stolen property,
burglary, theft by unlawful taking, simple assault,
use/possession of drug paraphernalia, recklessly
endangering another person, fleeing or attempting to elude
an officer, reckless driving, careless driving, and DUI:
Controlled Substance. [Father] is currently incarcerated
for violating his probation on the DUI charge by driving on
a suspended license.
mother of [Child]. CYS has been involved with [Mother]
since the birth of her first child on November 10, 2006,
and has previously placed her five older children in foster
involuntarily terminated to her oldest child, D.A., and he
was adopted on November 20, 2008. Her parental rights
were involuntarily terminated to her twins, D.H. and H.J.,
on April 1, 2009, and the twins were adopted on June 24,
2009. On February 25, 2010, her parental rights were
involuntarily terminated to Z.N., and Z.N. was adopted on
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April 16, 2010. On April 3, 2012, her parental rights were
involuntarily terminated to E.I., her fifth child, and he was
subsequently adopted on July 3, 2012.
CYS became involved with the family once again upon
learning that [Mother] was pregnant with N.D.B. due to
involvement with the family. The agency had concerns
limitations; substandard home conditions including
overcrowding, an overabundance of pets, atrocious and
lingering stench of body odor and ammonia, and no
running water; financial troubles; transportation problems,
poor parenting skills; relationship problems; and lack of
cooperation with available support services. [Father and
Mother] cancelled initial home visits scheduled in May and
June 2012. After [Father and Mother] failed to appear for
appointments, the case was closed in June 2012. On
August 27, 2012, [Mother] contacted CYS and requested
that a caseworker meet with her and [Father] to develop a
plan for their unborn son. [Father and Mother] failed to
appear at the scheduled meeting on September 6, 2012.
until September 10, 2012. The home visit was scheduled
for September 11, 2012, but was not completed because
[Child] was born that day.
emergency petition for protective custody and ordered that
[Child] be placed in foster care. The agency took custody
of [Child] at the hospital. A hearing was held on
September 13, 2012. At that time, reunification services
were initiated with Family Intervention Crisis Services
from Centre County Base Service Unit, Centre County WIC,
Catholic Social Services, and Clear Concepts. On
September 19, 2012, after a dependency hearing, the
Court declared [Child] a dependent child under the
Pennsylvania Juvenile Act at 42 Pa.C.S. § 6302(1),[1]
1
A dependent child is defined as
A child who:
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ordered that [Child] continue to remain in foster care, and
ordered reunification. At review hearings on December 11,
2012, March 5, 2013, and April 2, 2013, the court
goal change hearing scheduled for July 8, 2013 was
continued to October 14, 2013. On October 14, 2013,
oward alleviating
the circumstances that necessitated the original
placement.
Trial Ct. Op., 12/5/13, at 1-3.
At the hearing on April 2, 2013, Lindsay Schreffler, the CYS
caseworker, testified. N.T., 4/2/13, at 3.2 She indicated that a hearing was
held on March 5, 2013 and continued until April 2, 2013. On April 2nd, CYS
progress in meeting the goals set for them. Id. at 4-
(1) is without proper parental care or control,
subsistence, education as required by law, or other care
or control necessary for his physical, mental, or
emotional health, or morals. A determination that there
is a lack of proper parental care or control may be
based upon evidence of conduct by the parent, guardian
or other custodian that places the health, safety or
welfare of the child at risk, including evidence of the
parent's, guardian's or other custodian's use of alcohol
or a controlled substance that places the health, safety
or welfare of the child at risk[.]
42 Pa.C.S. § 6302(1).
2
We note there are two transcripts in the certified record dated April 2,
2013. Instantly, we refer to the notes of testimony filed of record on
December 13, 2013.
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a three-month review to ch
Id. at 5. Ms. Schreffler testified as follows:
[Counsel for CYS]: You wrote that placement was due to
substandard home conditions including overcrowding, and
overabundance, atrocious, and lingering stench of body
odor and ammonia and no running water, financial
troubles, transportation problems, poor parenting skills,
relationship problems, and lack of cooperation with
available support services. I would like to know, since the
time that you authored this review plan, which I believe
later, what has transpired that makes those circumstances
better?
A: Throughout our work regarding [Child] with [Father and
Mother], there were no issues as far as far as
overcrowding in their [ ] home, or the animals. . . .
However, the other issues as far as the parenting skills,
concerns about the relationship, and lack of cooperation or
support services have remained an issue.
* * *
Q: Tell me about [the] house . . . .
A: . . . I have not been able to see the house during this
review period. And neither [Mother] nor [Father]
contacted me, after leaving a voicemail, to see their home
prior to court. When I did go to see their home to look
over the heating issue in March, the heating registers were
not appropriate that they had in the home. But I am not
aware they have made those changes.
Q: What are the circumstances now? What are the
circumstances for [Father]?
* * *
A: There were concerns about past anger issues that
resulted in criminal charges, use of drugs. Also, concerns
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throughout the reunification process, and a concern
whether or not he would be able to care for [Child], given
that he has not provided care for a long period of time for
his other two children.
* * *
Q: You indicated that he has a history as well with regard
to other children in his care. What does that mean?
A: That is correct. He does not have custody of either of
his two children, two sons, [A.A.B.] or [J.M.B.]. . . .
Q: And why is that?
A: I believe due to past custody issues and concerns about
his ability to parent his children.
Q: There is a history of [Father] having shaken baby
problems; is that correct?
A: That is correct. There was a report that he had been
physically violent with [A.A.B.] back in, I believe, 1997 or
* * *
Q: What has changed with respect to [Father]? If you
know.
A: I am not aware of any changes within the last three
months, if he has attended any of the counseling that was
received any documentation of attendance or completion
of any programs.
Q: How did he do with respect to the opportunity afforded
to him for reunification services?
A: He was not compliant with the request of reunification
services. He did not complete any of the goals that were
asked of him by that program. And he was not
accountable for his behavior as far as drug use or
parenting inabilities.
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Id. at 8-9, 10-11, 12-13.
Father testified at the hearing.
[Counsel for Father]: When you were involved with [FICS],
it sounds like you did not get along with the folks that you
were assigned to?
A: No.
* * *
Q: Did you ever register any official complaints with the
FICS supervisors or CYS?
A: Numerous times.
Q: What would you tell them?
the past course of time.
Q: What specifically about? Did you register complaints
with CYS and/or with supervisors at FICS about how you
proceed (sic) or how you felt you were being treated by
the people assigned to you?
against the head person I can find, whoever it was. I
would try to find whoever I could find and file a report and
complain to them. I did, I complained. I complained to by
governor and everybody.
Q: What response, if any, did you get from the FICS
supervisors about that, about your complaints?
* * *
Q: And despite all that, did you attempt to do your best to
cooperate and comply with the goals they set for you.
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A: Yes. I did everything they asked. I answered all their
the questions, I was told I had to answer the questions, I
answered them anyway.
Id. at 37, 38, 39.
Sandra K. Richer testified at the hearing on October 14, 2013 that she
works for FICS and provides services for CYS. N.T., 10/14/13, at 49.
[Counsel for CYS]: You began your services, I believe, in
May of 2013?
Q: And your role is after reunification ended as a result of
sibility
of supervising visits fell to [CYS]?
FICS?
A: Correct.
* * *
Q: You had eight visits?
* * *
Q: Is [Child] old enough to walk at this point?
A: He walks around the furniture. He pulls himself up, and
he walks around the furniture.
Q: What is the response of [Mother and Father] to that?
especially wants him to be on that blanket. . . .
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Q: Do you see them encouraging [Child] to move around;
do (sic) see anything other than just the holding of the
child at these visits?
A: No.
* * *
[Counsel for Father]: Did [Father] or [Mother] ever
indicate they wanted [Child] to stay on that blanket
because of their concern about the condition of the floor?
A: Yes.
Id. at 49, 57, 59, 74-75.
failure to progress toward alleviating the circumstances that necessitated the
filed a simultaneous statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and the trial court filed a responsive opinion.
Father raises the following issue for our review:3
Did the lower court err in changing the placement goal
Father] continued to make progress towards alleviating the
conditions which led to the placement of [Child] even after
formal reunification services had ended, a strong parental-
ad litem strongly
3
We note that Father does not provide any legal authority in support of his
argument. See
with citation to, and analysis of, relevant authority waives that issue on
-Penn,Inc., 880 A.2d 1270, 1279 (Pa.
Super. 2005). However, because this defect does not impede our ability to
conduct appellate review, we decline to find waiver.
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interests?
standard:
[T]he standard of review in dependency cases requires an
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 require the appellate court to
Accordingly, we review for an abuse of discretion.
* * *
. . . [A]ppellate courts must employ an abuse of discretion
standard of review, as we are not in a position to make the
close calls based on fact-specific determinations. Not only
are our trial judges observing the parties during the
hearing, but usually . . . they have presided over several
other hearings with the same parties and have a
longitudinal understanding of the case and the best
interests of the individual child involved. Thus, we must
defer to the trial judges who see and hear the parties and
can determine the credibility to be placed on each witness
and, premised thereon, gauge the likelihood of the success
of the current permanency plan. Even if an appellate court
would have made a different conclusion based on the cold
record, we are not in a position to reweigh the evidence
and the credibility determinations of the trial court. . . .
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
As has been often stated, an abuse of discretion does not
result merely because the reviewing court might have
reached a different conclusion. Instead, a decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (citations omitted).
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This matter is controlled by the Juvenile Act, 42 Pa.C.S. § 6301 et seq.
When considering a petition for goal change for a dependent child, the trial
court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the 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.
[42 Pa.C.S.A. § 6351(f)].
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (some citations omitted).
Additionally, section 6351(f.1) requires the trial court to make a
tion 6351(f.1)
states, in pertinent part:
(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:
* * *
(2) If and when the child will be placed for adoption,
and the county agency will file for termination of
parent, guardian or custodian is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
42 Pa.C.S. § 6351(f.1).[4]
4
We note Father avers the court erred in failing to consider the parent-child
bond. We need not address this issue because it is not one of the statutory
See
42 Pa.C.S. § 6351(f).
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On the issue of a placement goal change, this Court has stated:
interest, not on what the parent wants or which goals the
parent has achieved. See In re Sweeney, 393 Pa. Super.
is adjudicated dependent . . . the issues of custody and
best
of the family is a purpose of [the Juvenile Act], another
wholesome mental and physical development of children
coming within the provisions
§
child is a status and not a property right, and one in which
the state has an interest to protect the best interest of the
In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263,
1267 (1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
The guardian ad litem
duties of a guardian ad litem as follows:
The guardian ad litem shall
be charged with representation of the legal interests and
the best interests of the child at every stage of the
proceedings and shall do all of the following:
(1) Meet with the child as soon as possible following
appointment pursuant to section 6337 (relating to
right to counsel) and on a regular basis thereafter in
maturity.
(2) On a timely basis, be given access to relevant
court and county agency records, reports of
examination of the parents or other custodian of the
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child pursuant to this chapter and medical,
psychological and school records.
(3) Participate in all proceedings, including hearings
before masters, and administrative hearings and
reviews to the degree necessary to adequately
represent the child.
(4) Conduct such further investigation necessary to
ascertain the facts.
(5) Interview potential witnesses, including the
child's parents, caretakers and foster parents,
examine and cross-examine witnesses and present
witnesses and evidence necessary to protect the best
interests of the child.
(6) At the earliest possible date, be advised by the
county agency having legal custody of the child of:
(i) any plan to relocate the child or modify custody or
visitation arrangements, including the reasons
therefor, prior to the relocation or change in custody
or visitation; and
(ii) any proceeding, investigation or hearing under
23 Pa.C.S. Ch. 63 (relating to child protective
services) or this chapter directly affecting the child.
(7) Make specific recommendations to the court
relating to the appropriateness and safety of
(8) Explain the proceedings to the child to the extent
and emotional condition.
extent that they can be ascertained and present to
the court whatever evidence exists to support the
or mental and emotional condition of the child,
determine to the fullest extent possible the wishes of
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the child and communicate this information to the
court. A difference bet
this paragraph and the recommendations under
paragraph (7) shall not be considered a conflict of
interest for the guardian ad litem.
42 Pa.C.S. § 6311(b)(1)-(9) (emphasis added). A guardian
opinion is advisory. In re Adoption of R.J.S., 889 A.2d 92, 100 n.8 (Pa.
Super. 2005).
was given undue weight by the agencies and
at the
supervised visits clearly shows that they are capable of parenting [Child]
ad litem
The trial court determined that changing the placement goal from
Despite the efforts of multiple service providers, [Father
and Mother] have not made necessary progress to assure
the Court that it would be safe to return [Child] to their
care and custody. [Father and Mother] have failed to meet
the three goals that were set out for them in October 2012
and meeting his ever-changing developmental needs. The
three goals were: (1) [Father and Mother] demonstrate the
ability to take care of [Child]; (2) [Father and Mother] take
care of themselves, including cooperating with services as
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recommended; (3) to secure and maintain stable housing
and manage money carefully. Over the course of
reunification, [Father] has failed to progress on these goals
in large part due to his lack of cooperation with FICS.
[Father] has demonstrated an unwillingness to learn to
become a better parent by telling [CYS] workers that they
were unable to teach him anything, by being
argumentative, and by being unresponsive to basic
questions.
First, [Father and Mother] have failed to show FICS that
visits when [Child] was an infant, they had difficulty mixing
his formula properly while preparing his bottles. [Father
as when he was hungry or needed a diaper change. When
[Child] graduated to eating whole foods, [Father and
Mother] continued to feed him baby food for his snack.
They also regularly brought him an insufficient amount of
snacks. Neither parent was able to show that they could
care for [Child] on their own . . . .
Second [Father and Mother] have shown an inability to
ta
part to cooperate with services. Although he continues to
receive drug and alcohol counseling as well as anger
management counseling, he has failed to show
commitment and stability by routinely switching providers.
[Father] had been working with Clear Concepts for drug
and alcohol counseling, but quit. He had been working
with Catholic Social Services for anger management
issues, but quit. Similarly, [Mother] had been working
esource Center, but quit. She has not
followed through on her commitment to attend counseling
to deal with previous domestic violence that she has
experienced. This inability to commit to counseling was
especially an issue because [Father and Mother] needed to
demonstrate progress in a short period of time. [Father
and Mother] have also shown an inability to take care of
themselves by failing to refrain from criminality. At the
time of the goal change hearing in October 2013, [Father]
was incarcerated for driving on a suspended license.
According to the Child Permanency Plan filed on November
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21, 2013, [Mother] was incarcerated in November 2013 as
well.
Third, [Father and Mother] have failed to show FICS
that they are capable of maintaining a safe home that is
appropriate for a young child or to manage their money
carefully. [Father and Mother] have been unable to
maintain stable housing because they spend half of the
week at their home in Pine Glenn, Pennsylvania and half of
Pennsylvania. Although caseworkers repeatedly told
[Father and Mother] that they needed to live in their home
as though [Child] were there, they would not turn on the
heat even when the outside temperatures necessitated
doing so. They installed inappropriate and dangerous heat
registers and left construction tools and materials
unsecured throughout the house. . . .
comply with the three goals set out for them over a year
ago
concern for the safety and well-being of [Child] if he were
to return to their care.
Trial Ct. Op. at 3-5.
Significantly, we note the trial court failed to address the guardian ad
opposition to the goal change from reunification to adoption. At the
hearing, the guardian ad litem stated as follows:
As guardian ad litem for [Child], I would like to voice a
strong objection to the proposed goal change.
nd [Mother],
personality conflicts that probably have been resolved at
this point, perhaps conflicts between [Father] and
members of FICS.
relationship with his parents based upon a personality
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currently are unfit. I realize they have long histories. I
realize that they come from circumstances more sad than
the ability to raise [Child], and I just ask the [c]ourt to
reinstate reunification services and give them the change
N.T., 10/14/13, at 134-35.
In spite of the guardian unequivocal opposition to the
change of goal from reunification to adoption, the trial court did not address
this factor. Furthermore, we note the guardian ad litem has not filed a brief
in this appeal, despite his position before the trial court. Although the
guardian recommendations are advisory, see In Re Adoption of
R.J.S., 889 A.2d at 100 n.8, we remand for the trial court to file, within
thirty days, a supplemental Pa.R.A.P. 1925(a) opinion addressing the
guardian opposition to the goal change from reunification to
adoption. Further, we order the guardian ad litem to file an appellate brief,
Case remanded for a supplemental Pa.R.A.P. 1925(a) opinion and
filing of a brief in response thereto by the guardian ad litem. Jurisdiction
retained.
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