In the Interest of: A.F., A Minor, Appeal of: B.B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: B.B., NATURAL MOTHER :
:
:
:
:
: No. 187 WDA 2017
Appeal from the Order Entered January 18, 2017
In the Court of Common Pleas of Blair County
Orphans’ Court at No(s): CP-07-DP-0000067-2016
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 19, 2017
B.B. (“Mother”) appeals from the order dated and entered on January 18,
2017, that changed the permanency goal for her dependent male child, A.F.,
born in January of 2016, (“Child”) from return home to adoption pursuant to
the Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows.
The subject child is A.F., a son born [in January of] 2016
to his mother, B.B. and [f]ather, P.F. On May 4, 2016, Blair
County Children, Youth & Families (hereinafter “BCCYF”) filed an
Application for Emergency Protective Custody and were granted
emergency temporary custody of the child. On May 6, 2016,
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*
Former Justice specially assigned to the Superior Court.
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Child’s father, P.F. (“Father”), has not filed an appeal from the change of
goal to adoption.
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BCCYF filed its Dependency Petition alleging that the subject
child, A.F., was a dependent child who was without proper care
or control, pursuant to 42 Pa. C.S.A. §6302(1) of the Juvenile
Act.
Dependency Hearings were held on May 11, July 26 and
August 11, 2016 after which the Order of Adjudication and
Disposition - Child Dependent was entered August 18, 2016,
finding the child to be dependent and granting legal and physical
custody to BCCYF. The original goal was return home to parent
(Father) with a concurrent goal of adoption. Both parents were
directed to undergo a global psychological evaluation and follow
through with all recommendations. In addition, the Mother was
directed to continue with her mental health counseling and
medication management and follow all treatment
recommendations. In light of a prior Involuntary Termination of
Parental Rights Decree entered against the Father relative to his
older child, E.M., we granted BCCYF’s Motion for Finding of
Aggravated Circumstances against the Father under [the] Order
entered August 18, 2016.
After the 6th Month Permanency/Dispositional Review
Hearing held August 18, 2016, a Permanency Review Order
was entered October 21, 2016, wherein the subject child, A.F.,
remained a dependent child, legal and physical custody
remained vested in BCCYF, and the goal remained return home
to parent, with a concurrent goal of adoption. The parents were
directed to comply with all recommended services, including the
global assessment that was scheduled with Dr. Terry O’Hara.
A 9th Month Interim Permanency/Dispositional Review/Goal
Change Hearing was held on January 10, 2017, after which a
Permanency Review Order was entered January 18, 2017
finding, inter alia, that the subject child remained dependent;
that legal and physical custody remained vested with BCCYF;
and that the primary goal was changed to adoption, with a
concurrent goal of adoption.
The [m]other, B.B., timely filed a Notice of Appeal on
January 23, 2017, and in her Concise Statement of Errors
Complained of on Appeal, stated that “[t]he trial court erred
and/or abused its discretion when it changed the permanency
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goal of the subject child from Return Home to Adoption.” The
[f]ather, P.F., did not file a Notice of Appeal.
Trial Court Opinion, 2/22/17, at 1-3 (emphasis in original).
On April 10, 2017, Mother’s trial counsel, Attorney Traci L. Naugle,
who initially served as her appellate counsel and filed her notice of appeal,
concise statement, and brief, filed a motion to withdraw as Mother’s counsel.
On April 20, 2017, Attorney Richard M. Corcoran entered his appearance in
this Court on behalf of Mother. On April 25, 2017, this Court entered an
order granting the motion for leave to withdraw.
In her brief on appeal, Mother raises the following issue:
I. Whether the trial court erred and/or abused its discretion
when it changed the permanency goal of the subject child from
return home to adoption?
Mother’s Brief, at 4.
Mother concedes that the record is clear that she suffers from an
intellectual disability and mental health issues. Id. at 8. Mother states that
her intellectual disability and mental health issues caused concern for Terry
O’Hara, Ph.D., the psychologist who performed a global assessment of her,
regarding whether she has the ability to appropriately parent her child. Id.
at 8-9. Mother urges that Dr. O’Hara testified that she had positive
interactions with Child during her interactional interview, and she has a
desire to parent. Id. at 8. Mother, therefore, requests that this Court
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reverse the trial court order, and direct that the permanency goal for Child
be restored to return to home. Id. at 8.2
Mother’s challenge to the change of Child’s permanency goal to
adoption is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. The
Pennsylvania Supreme Court set forth our standard of review in a
dependency case as follows.
“The standard of review in dependency cases requires an
appellate court to accept 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.” In re R.J.T.,
608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 631 Pa. 343, 360, 111 A.3d 1164,
1174 (2015).
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In the argument section of her brief, Attorney Naugle states that Mother’s
limitations presented an issue for counsel in advising Mother about the
dependency case, the appeal, and the likelihood of success of her case.
Mother’s Brief, at 9. Attorney Naugle, on behalf of Mother, requests this
Court to appoint a guardian ad litem for Mother in future proceedings in this
matter. Id. at 8. Mother has failed to raise this request in a petition, and
she does not develop it with any citation to case law, statute, or rule of
court. We find that her request is not properly before this Court, which is a
reviewing court, and that Mother’s counsel would more appropriately file a
petition for the appointment of a guardian ad litem for Mother in the trial
court with regard to any future proceedings. See Pa.R.J.C.P. 1151.
Assignment of Guardian Ad Litem & Counsel, Comment (stating, “Nothing in
these rules anticipates that a guardian ad litem for an adult is to be
appointed by these rules. For appointment of a guardian of the person, see
20 Pa.C.S. § 5501 et seq. and Pa.O.C. Rules 14.2-14.5).
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With regard to our review of a goal changes in a dependency case, this
Court recently set forth the following:
In cases involving a court’s order changing the [court-
ordered] goal . . . to adoption, our standard of review is
abuse of discretion. To hold that the trial court abused its
discretion, we must determine its judgment was
manifestly unreasonable, that the court disregarded the
law, or that its action was a result of partiality, prejudice,
bias or ill will. While this Court is bound by the facts
determined in the trial court, we are not tied to the
court’s inferences, deductions and conclusions; we have a
responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has
applied the appropriate principles to that record.
Therefore, our scope of review is broad.
In re S.B., 2008 Pa. Super. 21, 943 A.2d 973, 977 (Pa. Super.
2008) (citations omitted); see also In re R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010).
In In re A.K., 2007 Pa. Super. 321, 936 A.2d 528, 534 (Pa.
Super. 2007), this Court stressed that the focus of dependency
proceedings is upon the best interest of the children and that
those considerations supersede all other concerns, “including the
conduct and the rights of the parent.” Again, in In the Interest
of D.P., 2009 Pa. Super. 86, 972 A.2d 1221, 1227 (Pa. Super.
2009), we explained, “In a change of goal proceeding, the best
interests of the child, and not the interests of the parent, must
guide the trial court, and the parent’s rights are secondary.” Id.
Likewise, 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 N.C., 2006 PA
Super 285, 909 A.2d 818, 824 (Pa. Super. 2006) (quoting In re
Adoption of M.E.P., 2003 Pa. Super. 210, 825 A.2d 1226, 1276
(Pa. Super. 2003)).
With those principles in mind, we outline the relevant
considerations set forth in the Juvenile Act regarding
permanency planning:
Pursuant to § 6351(f), of the Juvenile Act, when
considering a petition for a goal change for a dependent
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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.
In re A.B., 2011 PA Super. 75, 19 A.3d 1084, 1088-89 (Pa.
Super. 2011). Additionally, courts must consider whether
reasonable efforts were made to finalize the permanency plan in
effect. See 42 Pa.C.S. § 6351(f)(5.1).
In the Interest of L.T., 158 A.3d 1266, 1276-1277 (Pa. Super. 2017).
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
With regard to the goal change, the trial court stated as follows:
As set forth above, there were three (3) separate hearings
held May 11, July 26, and August 11, 2016 prior to entry of our
Order of Adjudication and Disposition - Child Dependent
on August 18, 2016. In summary fashion, we found the
subject child to be dependent based upon several factors,
including but not limited to the [m]other’s significant mental
health issues and cognitive deficiencies which affect her bonding
and attachment and her ability to safely care for, the child; the
[f]ather’s own mental health issues; the parents, and especially
the [f]ather’s, lack of cooperation with the recommended
services, including but not limited to Early Intervention and
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Parents as Teachers program; unknown people consistently
coming in and out of their home; the developmental concerns
relative to the child; the lack of establishing a consistent and
appropriate feeding schedule and daily routine for the child; the
[f]ather’s lack of employment; the domestic disputes within the
home between the parents and the paternal grandfather, who
has his own mental health issues and is not appropriate around
the child; and the general lack of progress made by the parents
despite the intensive efforts by service providers. BCCYF and
the service providers classified this case as a “high risk” case,
and various providers confirmed that they could not ensure the
safety of the child despite their involvement.
For purposes of the reasons why we changed the goal to
adoption in our Permanency Review Order of January 18, 2017,
we will rely upon our findings made after the 6th Month Review
and 9th Month Review hearings, and would highlight the following
findings from each.
From our October 21, 2016 Permanency Review Order
entered after the 6th Month Permanency/Dispositional Review
Hearing, we made the following findings pertaining to the
Mother, B.B.:
[T]he mother is involved in out-patient mental health
counseling through Primary Health Network and receives
medication management from Dr. Ali. She is starting with
North Star Support Services to assist her accessing
resources for independent living. The mother was
hospitalized at Clarion Psychiatric Center from 9/23 to
9/30/16 due to threats of self–injurious behavior. Her
medication was changed, and it seems to have benefitted
the mother as she seems happier, more upbeat and
talkative. The mother was discharged from the FICS
[Family Intervention Crisis Services] Nurturing Program
due to a lack of attendance. Reunification services
recently commenced for the parents through New
Steps/Kids First and initially, there will be one 2-hour visit
with the child each week at the agency or the public
library. There remains a concern of inappropriate people
residing in the family home which will impede reunification
efforts if such situation is not rectified. The mother
receives SSI [Supplemental Security Income] benefits and
the father serves as the Representative Payee. Both
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parents are scheduled for a global assessment with an
interactional evaluation with Dr. Terry O’Hara on 10/26/16.
From our January 18, 2017 Permanency/Dispositional
Review Order entered after our 9th Month Interim
Permanency/Dispositional Review Hearing, we made the
following findings pertaining to the Mother, B.B.:
[B]ecause of the lack of progress and cooperation by
the parents, safety and the concerns that continue to exist,
all visits between the parents and child through FICS
Reunification Services have remained fully supervised and
occur at a public location (Altoona Area Public Library).
Shannon Cameron of FICS testified that since FICS opened
services on 10/3/16, the parents have attended only 6 of
the 14 scheduled meetings, where visitation coaching
takes place. The mother has attended 9 of the 13
scheduled visits, and the father 7 of 13 visits. Ms.
Cameron indicated that the inconsistent attendance has
absolutely hindered the services being provided and
limited the parents’ progress. The last visit the parents
attended was on 12/27/16. They missed their 12/28/16
meeting and a rescheduled meeting and there have been
no visits or meetings since. Ms. Cameron noted that there
are several concerns relative to reunification efforts in
addition to lack of attendance, such as the parents’ lack of
accountability as to why they need services and why their
child is in placement; the mother’s mental health issues
which affect her ability to make appropriate decisions as to
basic necessities - when to feed the child, how much to
feed, etc. The parents express love for the child and are
happy and excited to see [Child], but there is a lack of
consistency with their overall commitment to reunification.
There are on-going financial issues for the parents. The
mother receives SSI benefits, for which the father is her
representative payee (which has created issues in and of
itself) while the father has not maintained consistent
employment. The paternal grandfather, [D.F. or “Paternal
Grandfather”], who has significant mental health issues
and is not an appropriate individual to be around the
young child, remains in the home and, thus, creates an
obstacle to reunification efforts. Ms. Cameron testified
that although [Father] acknowledges his father's significant
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mental health issues, he does not appear to understand
the significance this plays on [Child] being able to safely
return home. Further, Ms. Cameron expressed a constant
concern as to the parents’ ability to attend to the daily
needs of the child. FICS cannot ensure the child’s safety
within the parents’ home. In addition to the above, there
are significant domestic disputes within the home. Ms.
Cameron said there has been no progress made relative to
reunification efforts and that she and her agency fully
support the goal change to adoption.
Dr. Terry O’Hara, a licensed psychologist who
specializes in Forensic Psychology, conducted psychological
evaluations on both parents as well as an interactional
observation of the parents with their child. He authored a
report [Petitioner’s Exhibit 1] which we incorporate herein
by reference. In summary, Dr. O’Hara expressed concern
relative to the mother’s intellectual capacity and ability to
safely care for the child. He found that she is limited in
her ability to learn and internalize skills; that she is
vulnerable and easily manipulated; that she failed to follow
through and seek mental health services through North
Star Services; and that she does not fully and concretely
understand the child’s developmental needs and how to
address those needs. Dr. O’Hara commented on the
mother’s long-standing mental health issues and opined
that the child would be at significant risk if returned to the
parents’ care or if left unsupervised with the mother. Even
though the mother demonstrated some positive parenting
skills, Dr. O’Hara noted that the mother was unable to
provide information regarding the child's developmental
needs; she denied any parenting weaknesses; there was a
lack of verbal engagement, which is critical at the child’s
young age; and she failed to demonstrate any insight or
accept any responsibility for why the child is in placement.
Dr. O’Hara testified he that has an on-going concern
regarding the parents’ long-term ability to provide for the
child. The concerns will not be remedied within a
reasonable period of time, and Dr. O’Hara concluded that
what is most important for this young child is permanency,
Tracey Dom, the Blended Case Manager from Home
Nursing Agency, testified that she has worked with the
mother for approximately 1½ years. She confirmed that
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the mother receives medication management through
Primary Health Network. Ms. Dom tries to meet weekly
with the mother, but acknowledges that the mother
struggles with scheduling. Ms. Dom’s last visit to the
parents’ home was on 11/22/16 and she admitted that her
interaction with [Paternal Grandfather] was “a little
alarming at times”.
Ronna Holliday, the caseworker from BCCYF assigned to
this family since late-April/early-May, 2016, testified that
the child is with a foster family where he is well taken care
of and his needs are met. Unfortunately, the foster
parents are not an adoptive resource, but the Agency has
identified two potential adoptive resources. [Child’s]
development is age-appropriate and physical therapy was
discontinued in November, 2016. He is not involved in any
services at this time.
Based upon the foregoing, we submit that the goal change
to adoption was appropriate and in the subject child’s best
interest and welfare. Therefore, we respectfully request your
Honorable Superior Court to affirm our Permanency Review
Order of January 18, 2017 wherein the goal was changed to
adoption.
Trial Court Opinion, 2/22/17, at 5-9 (emphasis in original).
After our careful review of the record in this matter, we find no abuse
of discretion on the part of the trial court in changing Child’s permanency
goal to adoption. See L.T., 158 A.3d 1266, 1276-1277; L.Z., 631 Pa. at
360, 111 A.3d at 1174. Accordingly, we affirm the trial court’s order
changing Child’s permanency goal to adoption.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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