In the Int. of: B.D., Appeal of: N.D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.D., MOTHER :
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: No. 1864 EDA 2019
Appeal from the Order Entered June 5, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000862-2015
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 15, 2020
Appellant, N.D. (“Mother”), appeals from the June 5, 2019 order
granting Philadelphia Department of Human Services’ (“DHS”) petition to
change the permanency goal with respect to her child, B.D.1 (“Child”), from
reunification to Another Planned Permanent Living Arrangement (“APPLA”).
We affirm.
The trial court set forth the relevant factual and procedural background
of this matter as follows.
On March 9, 2015, DHS received a [General] Protective Services
(“GPS”) Report, alleging [the following:] [] Child[, who is severely
intellectually disabled, blind, and non-verbal] was receiving
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* Former Justice specially assigned to the Superior Court.
1 Child was born in May 2001. Trial Court Opinion, 8/14/19, at 1. The trial
court adjudicated Child dependent when he was 13-years-old. During the
permanency review hearing conducted on June 5, 2019, Child was
18-years-old.
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Risperdal medication from his pediatrician twice a day [but had
not been] seen [by] his pediatrician for about [three to four]
weeks and therefore[,] had not received his medication; that []
Child's Mother [] stated that she had been unable to keep an
appointment for [] Child; that [] Child had become extremely
aggressive toward himself and others; that on [February 26,
2015,] he was extremely aggressive and was transported to the
hospital and that two security officers were needed to restrain him
while he was sedated; that he was prescribed medication at the
hospital but it is unknown if Mother [was] giving it to him[;] that
[] Child's aggressive behavior [] continued throughout that week;
that Mother [failed to keep] multiple appointments at [] Child's
school to discuss his medical situation; that Mother failed to
retrieve [] Child from the school bus [nine] times during this
school year and he was suspended from traveling on the school
bus; that [] Child needs to be met at the bus stop because of his
disabilities; that he had to wait at the school bus depot at the end
of the route to be retrieved; that Mother stated that she had been
working and was unable to retrieve him at his bus stop; that []
Child often attends school unbathed and in an unchanged diaper
from the previous day; [and] that Mother stated that his diapers
were in storage. The [r]eport further alleged that [] Child . . .
charged at the school staff, bit the school staff, and bit himself.
[On that same day], DHS met with Mother, who stated that she
[] filled [] Child’s prescription on [February 23, 2015]. She stated
that he receive[d] his medication twice daily and that she and his
teacher were attempting to increase his dosage to three times [a
day]. …Mother stated that [] Child exhibits extremely aggressive
behavior and ha[d] hit her in the past, causing black eyes and split
lips. She stated that she [was] unable to work consistently
because of [] Child’s needs and that she might face eviction
because she is unable to afford her rent. DHS observed the home
as appropriate and that Child’s siblings were safe.
On or before March 20, 2015, [] Child was admitted to the
Children’s Hospital of Philadelphia (“CHOP”) Child and Adolescent
Psychiatry and Behavioral Science Unit due to his violent and
sexually aggressive behavior.
***
On April 6, 2015, [CHOP discharged Child,] and DHS obtained an
Order of Protective Custody (“OPC”) and placed him at Woods
School (“Woods”).
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[On April 8, 2015, the trial court held a] Shelter Care Hearing. [At
that time, the] OPC was lifted and legal custody of [Child] [was]
transferr[ed] to DHS. [Child was then placed] in a group home,
[Woods.]
Trial Court Opinion, 8/14/19, at 2-3.
The trial court adjudicated Child dependent on April 17, 2015. Trial
Court Order, 4/17/15, at 1-2. Thereafter, the trial court conducted
permanency review hearings every few months. On June 5, 2019, the trial
court conducted a goal change hearing. The trial court summarized the
testimony provided during the hearing as follows:
Dr. Erica Williams was the first witness to testify at the hearing.
All parties stipulated to her qualifications as an [e]xpert in either
child behavior or child placement and as a Forensic Psychologist,
specializing in children and youth. [Dr. Williams] testified [that]
she performed a Bonding Evaluation of [] Child and [] Mother, and
produced a [r]eport dated [May 30, 2019].
Dr. Williams testified [that] she interviewed Mother, [but], did not
interview [] Child due to his limitations in being able to interact.
She was able to observe Mother and her son, and the observation
was consistent with the information she received regarding []
Child's intellectual disabilities, limitations and developmental
delays. She [stated that she] had no concerns regarding Mother's
interactions with her son, however, [] Child presents with [many]
behavioral tendencies that could be safety issues. Mother was
aware of them, attune[d] to them and responded to them
immediately. After Dr. Williams interviewed Mother and [] Child,
she also observed a video called, The Day [in] the Life of B.D.,
which was filmed at Woods.
Dr. Williams testified [that] Child has been out of Mother's home
since 2015, so that specific attachment of the caregiver for [] Child
was no longer there, and the caregiver relationship is now with
the staff at Woods. The staff is now meeting his daily needs and
Mother's visitation is [] an average of two times a month, putting
her in the role of visitor instead of caregiver. [Dr. Williams
explained that] Child’s needs care 24/7, and his physical size
makes it difficult for one person to sustain the necessary skills,
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energy, and commitment that he would need. Mother [told Dr.
Williams that] she could have her son live with her and [] to meet
[Child’s] needs, she would have occupational therapy and speech
therapy still come in to provide one-[on]-one care. Mother's plan
was to have him in school and after school have adults [at the
house]. However, [Dr. Williams opined that the] problem is, the
adults [do not] stay overnight, and would not be there early in the
morning, so it becomes a complex task to meet [Child’s] every
need. Given the Child's size[,] he presents a physical challenge
to any caregiver, if he becomes angered then things could happen
and he could [over power] many people. So[, Dr. Williams
explained that] he would need someone with a certain level of
physical strength to engage in behavior modification if he became
violent and require[d] hands-on physical redirection.
Dr. Williams opined that based on the interviews, viewing [of] the
video and the Bonding Evaluation, [Child] would not suffer
irreparable harm if his contact with his Mother would cease
because he does not have a caregiver bond with his Mother. [Dr.
Williams also stated that Child] has done well under the care given
to him at Woods and based on what she knows about his
functioning, any move would require extensive planning and
complete assurance that the level of care he is receiving now, he
would receive where he is going. Dr. Williams state[d that] she
did not get those assurances from Mother.
Crystal Atkins, [the Community Umbrella Agency (“CUA”)] Tabor
Case Manager, was the next witness to testify. She stated [that]
she [managed] the case for approximately nine months, and
[was] intimately involved with the case. [] [Atkins explained that
Child’s] home visits with Mother ended by [c]ourt order and have
not been reinstated because Mother was not at home to receive
[] Child when he was transported from Woods. [] Atkins [also]
stated [that] Mother has liberal visitation privileges [at Woods],
however, she consulted the visitation log and spoke to supervisors
at the Wildwood cottage and the pattern for Mother's visits have
been one hour[,] once per month since [Child] was moved to the
cottage in February 2019. [Atkins stated that] Mother was not
obeying the policies at Woods and attempting to visit after 8:00
p.m.
[] Atkins testified [that] she visited Mother at her home in March
2019, [for a] monthly safety visit for [Child’s] sister's case which
has since been closed. She found no safety concerns about the
home itself. She noted that the [trial c]ourt ordered CUA to assist
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Mother in acquiring a new refrigerator, and on [March 20, 2019],
the [trial c]ourt ordered Mother to cooperate with CUA to provide
a copy of her rental lease, utility bills, and pay stubs. [] Mother
has not provided any of that material. [Lastly,] [] Atkins testified
that it [was] the CUA's opinion that it [was] in the best interest of
[Child to] remain at Woods. [] Child is unable to answer questions
and he requires medication and Woods provides care for him and
the staff is able to meet all of his needs. CUA recommended to
the [trial c]ourt that [] Child's goal be changed to APPLA and have
him continue his residency at Woods.
On cross-examination by Andrew Mitnik, Esquire, [] Child[’s]
Advocate, [] Atkins noted that she arranged for [] Child to receive
IDS services because Mother [] neglected to perform the task[,
despite being asked to do so.]
Mother was the next witness to testify. She stated [that] she had
a plan for her son to return to her home. She focused this plan
on her training as a residential advisor and her work with NHS.
She [explained that she would] get all of the services in place for
his return and obtain a [Therapeutic Support Staff] worker if
necessary. She also [noted that she has] various family members
who are available to care for [Child] when she is not present,
[specifically,] her mother, her sister and her other [c]hildren.
[Mother explained that, while she] works for Kids R Us, [] she will
build her life around her son and she will lessen her work schedule,
if necessary. Regarding her visitation with her Child, [Mother]
stated there was no communication barrier, she was not at home
once when [Child] was brought to her house to visit and then the
home visits were stopped. She reported visiting her son more
than twice per month and the entire family goes to visit him at
times. Regarding proof of lease and utilities and other [requested]
paperwork[,] she stated that unfortunately she did not have that
in her possession at the hearing, but stated she could obtain it.
Trial Court Opinion, 8/14/19, at 9-11. Upon hearing the aforementioned
testimony, the trial court entered an order changing Child’s goal from
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reunification to APPLA. Trial Court Order, 6/5/19, at 1-2. This timely appeal
followed.2
Mother presents the following issues on appeal:
I. Did the [trial] court err when [it changed the] goal for [C]hild to
APPLA when the expert witness did not review the full record?
II. Did the [trial] court err or abuse its discretion [by] changing [the]
goal for [C]hild to APPLA when [it] incorrectly appl[ied] the best
interest[] of the child [standard]?
Mother’s Brief at 2.
First, Mother claims that the trial court erred by relying upon the
testimony of Dr. Williams, the expert witness, in changing the permanency
goal for Child from reunification to APPLA. Specifically, Mother argues that
Dr. Williams’s testimony was “not based on a complete review of the available
record and, therefore[,] flawed.” Mother’s Brief at 7-8. Mother, however,
provided no legal authority to support her bald assertion that the trial court
erred in relying upon Dr. Williams’s testimony. Thus, Mother waived this
portion of her argument for lack of development. See Pa.R.A.P. 2119
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2 On July 1, 2019, Mother filed a notice of appeal, along with concise
statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 14,
2019.
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(requiring a properly developed argument for each question presented
including a discussion of and citation to authorities in appellate brief).3
Next, Mother contends that the trial court erred by granting DHS’s
petition to change Child’s goal from reunification to APPLA. Mother’s Brief at
8-12. We disagree.
It is well established that “goal change decisions are subject to an abuse
of discretion standard of review.” In re R.M.G., 997 A.2d 339, 345 (Pa.
Super. 2010) (citation omitted).
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,
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3 Even if this issue were not waived, we find no merit in Mother’s argument
that the trial court erred in relying upon Dr. Williams’s testimony. As the trial
court noted, Dr. Williams provided “credible, persuasive [e]xpert testimony.”
Trial Court Opinion, 8/14/19, at 15. Dr. Williams observed Mother and Child
and found that the “observation was consistent with the information [Dr.
Williams] received regarding [] Child’s intellectual disabilities, limitations and
developmental delays.” Id. Dr. Williams noted that she had “no concerns
regarding Mother’s interaction with [Child],” however, Child’s behavioral
problems create safety issues. Id. Dr. Williams concluded that, due to his
significant problems and his size, Child is safer and better cared for in a group
home setting. Id. The record supports the trial court’s findings and the court
did not abuse its discretion in relying upon Dr. Williams’s testimony. In re:
G.M.S., 193 A.3d 395, 402 (Pa. Super. 2018) (“A trial court has discretion to
accept or reject a witness’ testimony, including that of an expert witness, and
is free to believe all, part or none of the evidence presented.”).
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we will affirm, “even if the record could also support an opposite
result.”
Id. (citations omitted).
A trial court must consider the following factors at a permanency review
hearing:
(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.
(7) If the child has been placed outside the Commonwealth,
whether the placement continues to be best suited to the
safety, protection and physical, mental and moral welfare of
the child.
(8) The services needed to assist a child who is 14 years of
age or older to make the transition to successful adulthood.
(8.1) Whether the child continues to meet the definition of
“child” and has requested that the court continue
jurisdiction pursuant to section 6302 if the child is between
18 and 21 years of age.
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(8.2) That a transition plan has been presented in
accordance with section 475 of the Social Security Act (49
Stat. 620, 42 U.S.C. § 675(5)(H)).
(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.
(10) If a sibling of a child has been removed from his home
and is in a different placement setting than the child,
whether reasonable efforts have been made to place the
child and the sibling of the child together or whether such
joint placement is contrary to the safety or well-being of the
child or sibling.
(11) If the child has a sibling, whether visitation of the child
with that sibling is occurring no less than twice a month,
unless a finding is made that visitation is contrary to the
safety or well-being of the child or sibling.
(12) If the child has been placed with a caregiver, whether
the child is being provided with regular, ongoing
opportunities to participate in age-appropriate or
developmentally appropriate activities. In order to make the
determination under this paragraph, the county agency shall
document the steps it has taken to ensure that:
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(i) the caregiver is following the reasonable and prudent
parent standard; and
(ii) the child has regular, ongoing opportunities to engage
in age-appropriate or developmentally appropriate
activities. The county agency shall consult with the child
regarding opportunities to engage in such activities.
(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:
***
(5) If and when the child will be placed in another planned
permanent living arrangement[,] which is approved by the
court, the following shall apply:
(i) The child must be 16 years of age or older.
(ii) The county agency shall identify at least one
significant connection with a supportive adult willing to
be involved in the child's life as the child transitions to
adulthood, or document that efforts have been made to
identify a supportive adult.
(iii) The county agency shall document:
(A) A compelling reason that it would not be best
suited to the safety, protection and physical,
mental and moral welfare of the child to be
returned to the child's parent, guardian or
custodian, to be placed for adoption, to be placed
with a legal custodian or to be placed with a fit and
willing relative.
(B) Its intensive, ongoing and, as of the date of the
hearing, unsuccessful efforts to return the child to
the child's parent, guardian or custodian or to be
placed for adoption, to be placed with a legal
custodian or to be placed with a fit and willing
relative.
(C) Its efforts to utilize search technology to find
biological family members for the child.
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(iv) The court shall:
(A) Ask the child about the desired permanency
goal for the child.
(B) Make a judicial determination explaining why,
as of the date of the hearing, another planned
permanent living arrangement is the best
permanency plan for the child.
(C) Provide compelling reasons why it continues
not to be in the best interests of the child to return
to the child's parent, guardian or custodian, be
placed for adoption, be placed with a legal
custodian or be placed with a fit and willing
relative.
(D) Make findings that the significant connection is
identified in the permanency plan or that efforts
have been made to identify a supportive adult, if
no one is currently identified.
42 Pa.C.S. §§(f)-(f.1).
Furthermore, in a goal change proceeding, the “statutory mandates
clearly place the trial court’s focus on the best interest of the child.” In re
S.B., 943 A.2d 973, 978 (Pa. Super. 2008). “Safety, permanency, and
well-being of the child must take precedence over all other considerations.”
Id. (citation and emphasis omitted).
In the case at bar, the trial court stated on the record its specific reasons
for concluding that a goal change to APPLA was in Child’s best interest.
I'm going to grant [DHS’s] request to change the goal to APPLA
for this child. I've been involved in this family's life for a
significant period of time, and watched the effect of [M]other's
visits and interference with [] [C]hild's treatment at various
institutions, causing [a] degrade in [] [C]hild's behavior and
degrading [] [C]hild's accomplishments.
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Mother continued to present a crusade against the people that
were trying to help this [C]hild, and it came to a point where I had
to reduce [] [M]other's contact with [] [C]hild and limit []
[M]other's contact with the agencies having a number of hearings
over the course of the years that I presided over this case.
I directed Woods [] to do a video[,] A Day in the Life of B.D.,
because I needed to have . . . more than words to describe
[Child’s] behavior and his limitations. And it presented a very real
physical picture of [] [C]hild and [his] limitations and it
re[-]affirmed my understanding that [] [C]hild had very little
comprehension skills. He was functioning at a very elementary
level. He has grown to be a fairly large boy. Now he [is] a young
man, and at times it presented a challenge to the male staff, who
his staff were primarily male, in terms of those who were
supervising his conduct and behavior. And I believe that was
because he was a physical challenge and not to disrespect the
feminine staff, but they had different skills and were able to apply
different skills to [Child], but there were periods of time when he
needed to be restrained. I think the number of restraints
diminished significantly after I curtailed [M]other's visits with him,
and allowed the staff to treat him without [the] disruption that []
[M]other presented to them and to [] [C]hild.
While I recognize there is a biological relationship, [Child] does
not have the capacity to understand the concept of [a] mother.
We [have] seen adequate testimony that he responds to very
visible, hands-on treatment and commands[, which] he needs []
on a daily, [] continual basis. He can be impulsive, although I
understand that the staff now having had some time with him,
understand his impulses and his ability to be impulsive.
If my memory serves me, he had violent encounters with other
children in the institution . . . but my memory was that he needed
to have that hands-on contact through staff. And [M]other walks
in today expressing her love for the child, but she has no ability
to care for [him], never will have.
[Child] will remain functioning at this level for the rest of his life,
and if we [are] going to provide him with any meaningful life he
has to have this kind of 24/7 around-the–clock protection. I saw
[Child’s] day when he was awoken. He had to be assisted with all
of his clothing. He [needed assistance to change] his underwear.
He [needed assistance] in almost every level of functioning, and
the staff at Woods did their job admirably. They kept him calm.
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They kept him on track to the level that he could focus on anything
they kept him focused. They moved him about, moved him into
the school bus, from the school bus into his class, then repeated
the same procedure back again and got him ready for bed. [Child]
needs no less than full institutional support.
Although [Mother] is well-intentioned[,] she does not have the
ability nor will ever gain the ability. And the idea that she would
say - when he comes home I'm going to get everything together
and take care of [him] suggests a failure of [Mother’s] ability to
really understand what [Child] needs. [Mother] has presented no
evidence that she could competently care for this child at the level
that he needs to be cared for.
So[,] I'm going to grant your petition to change the goal to APPLA.
He is an adult.
N.T. Permanency Hearing, 6/5/19, at 45-49. Upon review, we conclude that
the record supports the trial court’s conclusion that a goal change to APPLA is
in the Child’s best interest. As such, we discern no error of law or abuse of
discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/20
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