In the Interest of A.K., Appeal of: C.P. ( 2014 )

J-S53045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.K., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.P.
No. 843 WDA 2014
Appeal from the Order April 10, 2014
in the Court of Common Pleas of Indiana County
Civil Division at No.: CP-32-DP-45-2012
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014
dated and entered on April 10, 2014, in the Indiana County Court of
1
pursuant to Section 6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). In
its order, the trial court further directed that legal and physical custody of
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*
Retired Senior Judge assigned to the Superior Court.
1
PLC is a placement option under the Juvenile Act that places custody of a
rights. See In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004). In such a
scenario, the parents may still have visitation with their child if deemed
appropriate by the trial court. See id.J-S53045-14
Child shall remain with the Indiana County Children and Youth Services
2
We affirm.
The trial court related the relevant facts and procedural history of this
case as follows:
[Mother and Father are the parents of Child].
On August 23, 2012, Father filed a Petition for Emergency
incarceration for alcohol/drug related offenses. At the time,
Child was
and/or convictions under 23 Pa.C.S.A. § 5329. A proceeding
occurred on August 29, 2012. A representative of [CYS] was
present[,] as [CYS] was providing general protective services
because of truancy. As a result of the proceeding, it was
determined that Father also had an enumerated conviction from
enumerated convictions, custody was
temporarily awarded to the maternal grandfather, [D.P.
this placement.
A continued special relief hearing occurred on October 12,
2012. Mother, who had been released from jail, appeared with
Boyfriend. Father also appeared. Mother, Boyfriend and Father
were not placement options because of their enumerated
convictions. [M]aternal [G]randfather had recently died.
and she no longer wanted the Child in her custody. At the
conclusion of the proceeding, Mother and Father signed a
Voluntary Placement Agreement for foster care and the [trial
c]ourt transferred jurisdiction of the custody case to juvenile
court. A Dependency Petition was filed by [CYS] on October 23,
2012. Grounds under 42 Pa.C.S.A. § 6302(a)(1) were alleged.
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2
placement goal to PLC, nor is he a party to this appeal.
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An Adjudication and Disposition hearing occurred on
November 8, 2012 and the Child was placed in the temporary
legal custody of [CYS]. Placement was in foster care. The
current permanent placement goal was return to parent. The
Initial Permanency Review occurred on February 7, 2013.
Mother was found to be in full compliance with the permanency
plan and completed her initial treatment group at the Open
progress was moderate because she tested positive for
Oxycontin on January 30, 2013. Boyfriend also tested positive
for Oxycontin (which he was prescribed) and cocaine.
Mother continued with full compliance at the Permanency
Review proceeding on June 27, 2013. However, her progress
remained at the moderate level due to another positive drug test
on February 7, 2013. At the September 26, 2013 Permanency
Review hearing, Mother was in full compliance. She regularly
attended the Open Door and began working with Justice Works,
a human service agency. Her progress was rated as moderate
because she had only recently started the program with Justice
Works. Mother again achieved full compliance at the January
16, 2014 review. She completed intensive outpatient treatment
on January 9, 2014 and started relapse prevention on January
14, 2014. Her progress was determined to be full because she
passed all her drug screens and was consistent in working with
Justice Works.
[CYS] filed a Motion for Permanency Review/Change of
Goal on March 24, 2014. The request for change of goal was
based on credible information that [CYS] received about the sale
During a meeting with [CYS], which occurred on January 30,
other information received by [CYS]. Father was not a
placement option because of a change in his living
circumstances. As a result, [CYS] requested a goal change to
relationship with her Mother.
A Permanency Review/Change of Goal hearing occurred on
April 10, 2014. Present was the [CYS] Solicitor, Mother and her
court appointed counsel, Father, who participated by phone from
Litem. The Child was interviewed in camera. Testimony was
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[3]
[trial c]ourt approved the change of goal.
(Trial Court Opinion, 6/10/14, at 1-4 (footnote omitted)).
On May 13, 2014, Mother simultaneously filed a timely Notice of
Appeal and a Concise Statement of Errors Complained of on Appeal,
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises two questions for our review:
1. Did the trial court abuse its discretion by failing to
2. Did the trial court abuse its discretion by granting a
change of goal where Mother had been in full compliance
with the permanency plan and where there was no
evidence that Mother attempted to sell drugs?
Our standard of review for an order granting a petition to change a
of discretion.
When reviewing such a decision[,] we are bound by the
facts as found by the trial court unless they are not supported in
the record. Furthermore, in a change of goal proceeding, the
trial court must focus on the child and determine the goal in
her parents.
At each review hearing concerning a child who has been
adjudicated dependent and removed from the parental home,
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3
Ex-
See N.T.
Hearing, 4/10/14, at 5). When Mother and Ex-Husband divorced in 1997,
Ex-Husband petitioned for and was granted primary physical and legal
custody of their two children. (See id. at 6).
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the trial court must consider: 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.
focus on the best interests of the child.
In addition[, a]lthough bound by the facts as found by the
trial court and supported by the record, we are not bound by the
we must exercise our independent judgment in reviewing the
s of fact, and
must order whatever right and justice dictate. We review for an
abuse of discretion. Our scope of review, accordingly, is of the
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
-finding function because the court is in the
best position to observe and rule on the credibility of the parties
and the witnesses.
In re H.V., 37 A.3d 588, 593 (Pa. Super. 2012) (citation omitted).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiries
for the reviewing court 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
child.
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(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.
(6) Whether the child is safe.
42 Pa.C.S.A. § 6351(f)(1)-(6).
Additionally, Section 6351(f.1)(3) of the Juvenile Act authorizes the
trial court to grant a goal of PLC if the trial court decides that neither
1)(3). In a
change of goal proceeding, the best interests of the child, and not the
secondary. See In re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007). In
contrast, in a termination of parental rights proceeding, the focus is on the
conduct of the parents under 23 Pa.C.S.A. § 2511. See In re M.B., 674
A.2d 702, 705 (Pa. Super. 1996), appeal denied, 688 A.2d 172 (Pa. 1997).
Finally, the court also must consider the bond between the child and his
parents, foster parents, and siblings. See In re H.V., supra at 594-95.
In her first issue on appeal, Mother contends that the trial court
committed an abuse of discretion in failing to accord proper weight to her
testimony. (See M
charged with the responsibilities of evaluating credibility of the witnesses
and resolving any conflicts in the testimony. In carrying out these
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responsibilities, the trial court is free to believe all, part, or none of the
In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006)
supported by competent evidence of record, this Court will not revisit the
See In re
K.C., 903 A.2d 12, 16 (Pa. Super. 2006).
In its Rule 1925(a) opinion, the trial court explained its reasoning for
according le
as follows:
During the April 10, 2014 hearing[,] the [trial c]ourt heard
testimony from [Ex-Husband], [CYS] caseworker[] Joseph
. . . [Ex-Husband] testified that[,] on January 9, 2014, he
intercepted a text message from Mother to [Daughter]. The text
[Ex-Husband] un
be drug related names of strains of marijuana. [Ex-Husband]
spoke to [Daughter] and she confirmed that Mother and
Boyfriend were using and selling drugs.
message to [Daughter] into evidence. Phone records showed
that the text message was sent to [Daughter] at 7:53 p.m. and
that [Ex-Husband] called Mother at 8:45 p.m. to confront her
and Boyfriend about what he perceived to be an offer of drugs to
[Daughter]. [Ex-Husband] stated that Mother denied that she
was using or in possession of any drugs and told [Ex-Husband]
that [Daughter] used marijuana. [Ex-Husband] informed Mother
office. . . .
The [trial c]ourt finds [Ex-
the text message, the implications of the text message and the
conversation with Mother credible. While [Ex-Husband] was
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testimony was supported through a [screenshot] of the text
message as well as phone records, which were entered into
evidence by [CYS]. [Ex-
supported by evidence that he did consult his attorney for advice
on how to keep Mother from interacting with [Daughter]. In
addition, contact was made with local law enforcement and
[CYS].
Next, the [trial c]ourt heard testimony from [CYS
caseworker] Joseph Petruna . . . .
Following [Ex-
investigation and scheduled a meeting with Mother, Boyfriend
Mother offered an explanation for the text message. She
asserted that [Daughter] is part of her support system and she
wanted to share a success with her. According to Mr. Petruna,
peddle this stuff and she responded by showing him out and it
Mother told Mr. Petruna that
the text message to [Daughter] was not complete and that she
was prevented by [Ex-
second part of the message. [CYS] reviewed phone records
provided by [Ex-Husband]. The records establish that the text
was sent at 7:53 p.m. [Ex-
until 8:45 p.m., 52 minutes later.
Mr. Petruna researched Purple Halo and Og Kush and
confirmed that both are types of marijuana. . . . Mr. Petruna
confirmed that a subseque
produced no illegal substances and that charges have not been
filed against Mother or Boyfriend. After meeting with Mother,
activities and judgment, even though Mother, who was being
tested regularly by the Open Door, had not had a positive drug
screen since February 2013.
her explanation at the January 30 meeting. Mother also testified
as to her year of sobriety and pride in that accomplishment.
encountered drugs right in front of my face and not even [had]
this accomplishment. Mother described [Daughter] as an
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integral part of her support system. She said she celebrated
recovery milestones with [Daughter]. Mother asserts that a
a complete text message to [Daughter]. According to Mother[,]
she was also speaking to another daughter [at the time].
able to retrieve
phone records to establish a chronology. Significantly, Mother
did not offer these records into evidence to explain the 52
minute lapse between the alleged incomplete text message to
[Daughter] and [Ex- ugh
Mother describes [Daughter] as being an important person in her
support system, [Daughter] did not appear and testify on
Mother adamantly denied that she told [Ex-Husband] that
[Daughter] smoked [marijuana]. In response to a question from
the Guardian [A]d Litem, Mother explained that she shared the
names of the marijuana in the text to [Daughter] because she
* * *
than to the other witnesses. In reviewing the testimony of
Mother, the [trial c]ourt does not find her explanation for the
text message and events that transpired credible. A plain
reading of the text message is that Mother is offering marijuana
to [Daughter]. Her explicit mention of Purple Halo and OG Kush
inds of stuff he got sent
be plainly read as a transactional and an on-going relationship
between the Boyfriend and his supplier. While a search of
occurred after Mother was told by [Ex-Husband] that he would
contact law enforcement.
The [trial c]ourt believes it is entirely reasonable to find
Mother less credible than the other witnesses. Mother had no
sufficient explanation for why she did not complete the text
message to [Daughter] in the 52 minutes that elapsed from the
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time of the text until [Ex-
have provided substantiating evidence, such as phone records,
absence was especially glaring, since Mother considers her to be
a crucial support person. As previously mentioned, a plain
interpretation of the text points to a transactional relationship
between Boyfriend and the person who came to the residence on
January 9th. The text reads like an advertisement, mentioning,
intent to demonstrate her
commitment to sobriety, then the message should have
conveyed the availability of drugs and a refusal to use. Instead,
and it is rational to assume that such po
part establishes that in the 15 months that the Child has been in
placement, Mother has not progressed to provide the Child with
proper parental control and care.
(Trial Ct. Op., at 9-16 (citations omitted)).
We conclude that the t
require this Court to revisit and essentially reverse the trial court in its
credibility determinations. Accordingly, we discern no abuse of discretion on
this issue.
In her second issue on appeal, Mother contends that the trial court
(See
ful
Mother was in full compliance with the permanency plan at each of her
Id. at 15 (quoting Trial Ct. Op., at 18)).
was having trouble getting Mother to schedule a drug test in February
[2014], Mother testified that she was continuing to be tested at [t]he Open
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Door, and the caseworker testified that as far as he was aware, [t]he Open
Id.).
In addition, Mother argues that her text message to Daughter was
insufficient evidence to support
search of her residence produced no illegal substances and did not result in
criminal charges being filed against her. (See id. at 16-17). Ultimately, it is
Id. at 17). We disagree.
In its opinion, the trial court explained the basis for its determination
ncy placement goal
be changed from reunification to PLC, as follows:
[W]hile [Mother] has consistently maintained full compliance
[with the permanency plan], she has not progressed sufficiently
drug tests on January 30, 2013 and February 7, 2013.
Boyfriend, who Mother resides with, also tested positive for
cocaine during this time. While Mother achieved full progress at
the January 16, 2014 hearing, this determination was made
without considera
progress at the April 10, 2014 hearing was downgraded to
minimal because of the safety risk posed by her actions and poor
judgment.
As in In re S.B., 943 A.2d 973, 983 (Pa. Super. 2008),
where the Court determined that although the natural parents
had remained in full compliance with the permanency plan, it
was still in the best interest of the child to grant a change of goal
from reunification to adoption. In the instant case, Mother has
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complied with the permanency plan, but has made insufficient
progress to alleviate the issues that necessitated the original
involvement in services and treatment, she has had two positive
drug tests, illicit drug activity at her residence, and
demonstrated poor judgment. Following the January 16th
[permanency review hearing], [] Mother did not respond to
contacts from [CYS]. While in placement, the Child has achieved
stability and academic success. [Child] is developing a
relationship with her Father and expressed her wish to Father to
remain with her foster family should she be unable to return to
Mother. The [trial c]ourt has determined . . .
. . . that neither reunification nor adoption are appropriate goals
for the Child at this time. . . . Mother has been unable to
remedy the issues present at dependency to the standard that
would allow for the health and safety of the Child. [PLC] is the
physical, mental and moral welfare[.] [C]hild has flourished in
improved and she has expressed a desire to remain with her
foster parents, while continuing to visit and maintain a
relationship with Mother. As Mother has demonstrated
continued poor judgment and compelling, credible evidence of
continued illegal activity in the home was presented to the [trial
c]ourt, the [trial c]ourt finds that it is in the best interest of the
Child to change the permanency goal from reunification to [PLC].
(Trial Ct. Op., at 18-20 (citations omitted)).
We find that there is competent evidence in the record to support the
permanency plan, Mother made insufficient progress toward alleviating the
goal from reunification to
PLC and we discern no abuse of discretion on the part of the trial court in so
ordering.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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