In Re: A.L.J., a minor, Appeal of: C.J. ( 2017 )


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  • J-S03045-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: A.L.J., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: C.J., NATURAL FATHER            :   No. 1482 WDA 2016
    Appeal from the Order Entered September 7, 2016
    in the Court of Common Pleas of Erie County
    Domestic Relations at No(s): No. 218 of 2015
    BEFORE:      OLSON, SOLANO, and STRASSBURGER*, JJ
    MEMORANDUM BY STRASSBURGER, J.:                      FILED FEBRUARY 10, 2017
    C.J. (Father) appeals from the order entered September 7, 2016, in
    the Court of Common Pleas of Erie County, which changed the permanency
    goal for his minor daughter, A.L.J. (Child), born in July 2015, to adoption.1
    After careful review, we affirm.
    The trial court summarized the relevant factual and procedural history
    of this matter as follows.
    On September 23, 2015, the Erie County Office of Children
    and Youth ([OCY]) filed an Emergency Protective Order ([EPO])
    Application in regards to … [Child]. Father and D.P. ([Mother])
    were listed as [Child’s] parents. In its EPO Application, OCY
    stated that it had received a referral on September 15, 2015[,]
    from Warren County Children and Youth Services (Warren
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    Mother’s parental rights to Child were terminated by consent on September
    19, 2016.
    J-S03045-17
    County CYS]). Father and Mother had an open case in Warren
    County since August 11, 2015[,] and were receiving services.
    Father and Mother moved with [Child] to Erie County on
    September 10, 2015. Warren County indicated Father as a
    perpetrator of physical abuse regarding [Child.] According to the
    EPO Application, in the summer of 2015 Father “had slammed
    [C]hild into his chest and caused visible injury to [C]hild.” As a
    consequence of Father’s actions, Father was charged with simple
    assault and harassment in connection to this incident. As of the
    time of filing the EPO Application, Father was only allowed
    supervised contact with [Child]. OCY alleged that both Mother
    and Father are “limited,” as Father has been diagnosed with
    mental retardation ([MR]) and Mother has been diagnosed with
    Depressive Bipolar Disorder. The EPO also set forth OCY’s
    concern that [] Mother could not adequately supervise Father’s
    time with [C]hild because of her limited mental capacity and the
    fact that she would leave [Child] alone with Father who was
    mandated to only have supervised custody of [C]hild.
    The Honorable Daniel J. Brabender, Jr. issued an EPO on
    September 23, 2015[,] for [Child], finding that removal of
    [Child] was necessary for the welfare and best interest of [Child]
    and that, due to the emergency nature of the removal and safety
    considerations of [C]hild, any lack of services to prevent removal
    were reasonable.     Consequently, [Child] was placed in the
    temporary protective physical and legal custody of OCY.
    Thereafter, [Child] was placed in the [B.] foster home. [C]hild
    was, at this time, two months old. Also, [C]hild has consistently
    presented with special needs to include Gastroesophageal Reflux
    Disease ([GERD]), far sightedness requiring her to wear glasses,
    and developmental delays requiring both “physical and
    occupational” therapy.
    Subsequently, a [s]helter [c]are [h]earing pursuant to 42
    Pa.C.S. § 6332 was held before the Juvenile Master, Carrie
    Munsee, Esquire, on September 24, 2015. Mother stipulated to
    continued shelter care pending an adjudication hearing. The
    Master conducted a colloquy with Father and was not convinced
    that Father was able to represent himself, even though he
    wished to do so, because of Father’s cognitive limitations,
    including [his] MR diagnosis. Out of an abundance of caution,
    the Master secured counsel for Father and he returned the
    following day, September 25, 2015, with counsel.        At this
    hearing, Father stipulated to continued shelter care pending an
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    [a]djudication [h]earing. [Child’s] guardian ad litem, Patricia
    Ambrose, Esquire, was also in agreement.        Master Munsee
    recommended that [Child] remain in the [B.] foster home, which
    was subsequently signed as an [o]rder by the Honorable Robert
    Sambroak on October 1, 2015.
    A [d]ependency [p]etition for [Child] was filed by OCY on
    September 25, 2015. The [d]ependency [p]etition incorporated
    the allegations set forth in the EPO Application. The [p]etition
    continued and recognized that Father had a history with Warren
    County CYS involving [Child] based on Father’s “cognitive
    limitations, physical abuse, lack of supervision, lack of parenting
    skills, and being uncooperative with service providers.” OCY
    further noted that Father continued to reside in the home with
    Mother and [Child and] was often left alone and unsupervised
    with [Child], “despite being court ordered to have no contact
    [with Child] as a condition of his bond.” OCY was additionally
    concerned that Father was unable to safely parent [Child] due to
    his “significant cognitive limitations.”
    An [a]djudicatory [h]earing was held on October 1,
    2015[,] before Master Munsee.       Master Munsee found that
    [C]hild was dependent without proper care or control and
    recommended the continued placement of [Child] in the [B.]
    foster home. This recommendation was subsequently signed as
    an Order by this Court on October 5, 2015.
    A [d]ispositional [h]earing was held before this Court on
    October 28, 2015. At the [d]ispositional [h]earing, [C]hild was
    represented by her guardian ad litem, Emily M. Merski, Esquire.
    Mother was not present, however her attorney, Justin D.
    Panighetti, Esquire, was present.     Father was present and
    represented by Anthony R. Himes, Esquire. OCY caseworker
    Patty Bush was present, as well as OCY solicitor Anthony G.
    Vendetti, Esquire. The [c]ourt incorporated the Court Summary
    into the Record and received testimony from the OCY
    caseworker. At the conclusion of the hearing, the [c]ourt found
    that [Child] was dependent as she was without proper parental
    care or control.     The permanency goal was established as
    “Return to Parent or Guardian.”
    ***
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    [C]hild continued to be placed in the [B.] foster home where she
    was being well cared for and her special needs were being met.
    Visitation with the parents was to continue and be increased in
    accordance with the parties’ progress and compliance. A six
    month Permanency Review Hearing was ordered.
    In February 2016, Father pleaded guilty to the simple
    assault of [Child from the summer of 2015.]         Father was
    sentenced on February 19, 2016[,] to a term of incarceration of
    one to two years, with the earliest possible release date being
    February 17, 2017. Additionally and importantly, as a condition
    of his supervision, Father was Court ordered not to have any
    contact with the victim of the assault, [Child]. However, Judge
    Hammond did denote that any contact Father would have with
    [C]hild would be further determined by the Dependency Court.
    Accordingly, Father’s last visit with [C]hild was February 12,
    2016.
    Trial Court Opinion, 10/31/2016, at 1-5 (footnotes and citations to the
    record omitted).
    The trial court conducted a permanency review hearing on June 27,
    2016.     On July 5, 2016, the court entered a permanency review order
    changing     Child’s   permanency   goal   from   reunification   to   reunification
    concurrent with adoption.     The court conducted an additional permanency
    review hearing on August 31, 2016.          On September 7, 2016, the court
    entered a permanency review order changing Child’s goal from reunification
    concurrent with adoption to adoption only.        Father timely filed a notice of
    appeal on September 30, 2016, along with a concise statement of errors
    complained of on appeal.
    Father now raises the following claims for our review.
    1. Whether the [trial] court committed an abuse of discretion
    and/or error of law when it determined that [OCY] had presented
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    sufficient evidence as a basis to change the goal to adoption in
    regards to [Father]?
    2. Whether the [trial] court committed an abuse of discretion
    and/or error of law when it determined that [Father] had not
    been compliant with the permanency plan and/or court order?
    Father’s brief at 6 (trial court answers and suggested answers omitted)
    (unnecessary capitalization omitted).
    We consider Father’s claims mindful of the following.
    [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 accept the
    lower court’s inferences or conclusions of law. Accordingly, we
    review for an abuse of discretion.
    In re R.J.T., 
    9 A.3d 1179
    , 1190 (Pa. 2010).
    Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
    when considering a petition for a goal change for a dependent
    child, the juvenile court is to consider, inter alia: (1) the
    continuing necessity for and appropriateness of the placement;
    (2) the extent of compliance with the family service plan; (3) the
    extent of progress made towards alleviating the circumstances
    which    necessitated      the   original placement;     (4)   the
    appropriateness and feasibility of the current placement goal for
    the children; (5) a likely date by which the goal for the child
    might be achieved; (6) the child’s safety; and (7) whether the
    child has been in placement for at least fifteen of the last
    twenty-two months. The best interests of the child, and not the
    interests of the parent, must guide the trial court. As this Court
    has held, 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 A.B., 
    19 A.3d 1084
    , 1088-89 (Pa. Super. 2011) (citations and
    quotation marks omitted).
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    Instantly, Father’s claims on appeal are interrelated, so we address
    them together.    Father’s first claim is that OCY failed to present sufficient
    evidence to support changing Child’s permanency goal to adoption. Father’s
    brief at 15-19. Specifically, Father argues that it was improper for the trial
    court to change Child’s goal to adoption following the August 31, 2016
    permanency review hearing, given that the court declined to change Child’s
    goal to adoption following the prior permanency review hearing on June 27,
    2016. 
    Id.
     Father argues, “There was insufficient testimony and evidence
    presented at the final permanency review hearing as it related to any
    changed circumstances and/or adoption at that time but not at the prior
    permanency review hearings where the same goal was recommended and
    requested by [OCY].” Id. at 15. In his second claim, Father argues that the
    court abused its discretion by concluding that he failed to comply with Child’s
    permanency plan and/or court orders. Id. at 15, 19-23. Father argues that
    he completed or began most of his court-ordered services prior to his
    incarceration, and that he “remained willing and anticipatory to participate in
    further services both while incarcerated and following his release.”      Id. at
    15.
    In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court explained
    that it changed Child’s permanency goal to adoption “based on Father’s
    inability to safely parent [Child], … his admitted assault on [Child], his issues
    of anger and hostility, and [because psychologist, Peter von Korff, Ph.D.,
    who performed a psychological evaluation of Father,] opined that Father
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    would not benefit from further counseling or parenting classes.” Trial Court
    Opinion, 10/31/2016, at 12.      The court also emphasized that Child has
    resided in same pre-adoptive foster home since she was two months old,
    and that this foster home can provide Child with safety, stability, and love.
    Id. at 14-15.
    After a thorough review of the record in this matter, we conclude that
    the record supports the trial court’s decision to change Child’s permanency
    goal to adoption, although our reasoning differs somewhat from that of the
    trial court. Initially, we note that the court appears to have misinterpreted
    the conclusions contained in Dr. von Korff’s psychological evaluation. In its
    opinion, the court indicated that it “glean[ed] from Dr. von Korff’s report
    that … Dr. von Korff does not see any benefit for services for Father.” Id. at
    7. Our review of Dr. von Korff’s psychological evaluation does not support
    this interpretation.   The relevant portion of the psychological evaluation
    provides as follows.
    [Father] has been referred for the treatments appropriate
    to his circumstance. The writer sees no benefit to any additional
    services at this time. The client’s progress will be measured by
    his ability to make use of his current treatment program of
    supervised visitations, anger management, and parent-child
    training. The current assessment did not find evidence of a
    super ceding [sic] psychological or psychiatric disorder. Rather,
    the data suggested a chronically inhibited, mildly depressive and
    socially awkward individual who has a great deal of work to do in
    establishing a healthy and productive adult life pattern.
    Dr. von Korff’s psychological evaluation, at 10.
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    Thus, it does not appear that Dr. von Korff concluded that providing
    Father with services would be futile as the trial court suggests. Instead, Dr.
    von Korff concluded that the services Father was receiving were “appropriate
    to his circumstance,” and that Father would not benefit from receiving
    services in addition to the services that he was already receiving. Id. This
    interpretation is further supported by Dr. von Korff’s statement that Father’s
    “progress will be measured by his ability to make use of his current
    treatment program.” Id.
    Nonetheless, we conclude that the other evidence relied upon by the
    trial court more than sufficiently supports its decision to change Child’s
    permanency goal to adoption. Most notably, the court emphasized Father’s
    struggle to parent Child appropriately during visits prior to his incarceration,
    as well as Father’s dismal performance caring for a baby simulator doll. Trial
    Court Opinion, 10/31/2016, at 13-14.
    Father’s parenting deficits during visits were detailed in a report
    prepared by Erie Homes for Children and Adults, Inc. (EHCA). 2 In its report,
    dated February 18, 2016, EHCA explained that Father was “very careless
    when handling [Child] and … limited in his overall interactions with her.”
    ____________________________________________
    2
    Neither the EHCA report, nor Dr. von Korff’s psychological evaluation, was
    presented to the trial court during the August 31, 2016 permanency review
    hearing.     However, the court indicated that these reports would be
    incorporated by reference. N.T., 8/31/2016, at 6. The reports are contained
    in the certified record as attachments to a court summary.
    -8-
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    EHCA Report, at 1 (unnumbered pages). EHCA staff attempted to improve
    Father’s interactions with Child by providing one-on-one instruction and
    demonstrations. Id. at 2. While Father would listen to this instruction, and
    would participate occasionally, “when left to do some of the tasks
    independently, he often wouldn’t at all or would revert back to unsafe
    practices.” Id.
    The report provided the following example.
    On one occasion in particular, staff had just exited the
    visitation room after having a lengthy talk with [Father] about
    safe ways to hold [Child] and what not to do that could cause
    harm including excessive rocking or movement that would not
    support her head and neck. As soon as staff left the room,
    [Father] was seen tossing [Child] in the air in an unsafe manner.
    Staff immediately reentered the room and observed [Father]
    holding [Child] in a very awkward position while having a
    stunned look on his face. When staff inquired about why he was
    presenting this way, he asked[ “]Did you see that?” and then
    “Do you see everything[?”] Staff again asked why he was
    presenting this way and he stated “Because I knew it was
    wrong[.”] Staff then asked why he tossed her in the air then if
    he knew it was wrong and he stated “Because I wanted to[.]”
    This type of defiant and unsafe behavior is frequently observed.
    Id.
    In addition, the report explained that Father participated in two
    simulations using a baby simulator doll on February 5, 2016, and February
    12, 2016. Id. Father did “very poorly” during both simulations. Id. During
    the first simulation, Father failed to complete any parenting tasks with the
    doll, including feeding, rocking, changing, or burping, and scored a -60%.
    Id. Most troublingly, Father admitted to EHCA staff that he understood that
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    he was to treat the doll exactly as he would treat Child. Id. Despite this
    understanding, Father informed EHCA staff that he at one point left the doll
    home alone because he “‘didn’t feel like carrying it around town,’” and also
    left the doll in a closet because it was crying too much.        Id. Father even
    acknowledged that he “struck the doll in the face because it would not stop
    crying.”   Id.   While Father performed better during his second simulation
    with the doll, he still failed to perform numerous parenting tasks, and scored
    only a 32%. Id. at 3. Ultimately, EHCA found that Father “demonstrated
    very questionable, dangerous[,] and overall unsafe practices with [Child]
    and the real care simulator, so it would not be recommended that any
    visitation be increased until he shows improvement.” Id. at 4.
    Thus, it is clear that Child’s best interest would be served by changing
    her permanency goal to adoption. While the record reveals that Father was
    minimally compliant by participating in services prior to his incarceration,
    Father’s severe parenting deficits remained unresolved at the time he began
    his   current    period   of   incarceration.    This   was   demonstrated   most
    compellingly by Father’s performance with the baby simulator doll. Although
    Father knew that he was to treat the doll exactly as he would treat Child, he
    failed to care for the doll appropriately and even went so far as to strike the
    doll in frustration.      Even after Father is released from incarceration no
    sooner than February 2017, it is not clear when, if ever, Father will be
    capable of parenting Child safely.       Finally, as observed by the trial court,
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    Child has spent nearly her entire life residing in the same pre-adoptive foster
    home.
    We also reject Father’s claim that it was improper for the trial court to
    change Child’s goal to adoption following the August 31, 2016 permanency
    review hearing, given that the court declined to change Child’s goal to
    adoption following the prior permanency review hearing on June 27, 2016.
    Father does not direct our attention to any authority indicating that a trial
    court is prohibited from changing a child’s permanency goal if the court
    previously declined to change that goal under the same circumstances. To
    the contrary, in the context of a dependency proceeding, the fact that
    circumstances have not changed can be an important and compelling reason
    to change a child’s goal. In this case, by declining to change Child’s goal to
    adoption following the hearing on June 27, 2016, the court provided Father
    with an additional two months to demonstrate that he someday will be able
    to resolve his parental incapacity and care for Child.       The fact that the
    circumstances did not change, and that, therefore, Father’s likelihood of
    being able to care for Child did not improve, actually supports the court’s
    decision.3
    ____________________________________________
    3
    Father also challenges the trial court’s finding of no compliance with the
    permanency plan in the September 6, 2016 order. Specifically, Father
    argues that this finding was in error because he had done and was doing
    everything possible to comply with the plan despite his incarceration. See
    Father’s Brief at 19-23. Despite the fact that Father included this issue in
    his concise statement, the trial court did not address it in its opinion.
    (Footnote Continued Next Page)
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    Based on the foregoing, we conclude that the trial court did not abuse
    its discretion by changing Child’s permanency goal to adoption, and we
    affirm the court’s September 7, 2016 order.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/10/2017
    _______________________
    (Footnote Continued)
    Nevertheless, we conclude that even if Father had been substantially
    compliant with his plan, the trial court could still have found that it was
    appropriate to change the goal to adoption under these circumstances where
    it was not likely that Father’s ability to parent would improve. See In re
    N.C., 
    909 A.2d 818
    , 826 (Pa. Super. 2006) (holding that a goal change may
    be proper where “there is ample evidence to support the trial court’s factual
    finding that Mother’s parenting ability remained problematic, even though
    she had substantially completed her permanency plan”).
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Document Info

Docket Number: In Re: A.L.J., a minor, Appeal of: C.J. No. 1482 WDA 2016

Filed Date: 2/10/2017

Precedential Status: Precedential

Modified Date: 4/17/2021