In the Int. of: A.D., Appeal of: D.D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.D., FATHER :
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: No. 82 MDA 2023
Appeal from the Order Entered December 9, 2022
In the Court of Common Pleas of Franklin County Juvenile Division at
No(s): CP-28-DP-0000049-2019
IN THE INTEREST OF: D.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: D.D., FATHER :
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: No. 83 MDA 2023
Appeal from the Order Entered December 9, 2022
In the Court of Common Pleas of Franklin County Juvenile Division at
No(s): CP-28-DP-0000050-2019
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: JULY 26, 2023
D.D. (“Father”) appeals the December 9, 2022 order changing the
respective permanency goals as to his daughter, A.D., born in April 2014, and
his son, D.D., born in January 2016.1 After careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 A.K. (“Mother”) did not appeal these orders. Instead, Mother appealed a
December 9, 2022 order finding aggravated circumstances pursuant to 42
Pa.C.S. § 6341(c.1). We address her claims in a separate memorandum.
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We glean the relevant factual and procedural history of this matter from
the certified record. Franklin County Children and Youth Services (“CYS” or
“the agency”) first became involved with this family in June 2019, when it
assumed emergency custody of A.D. and D.D. following allegations of
inappropriate contact between A.D. and her paternal grandfather (“Paternal
Grandfather”). See N.T., 12/8/22, at 49. We note that Father and Mother
were never married and, at the time of this initial referral, they were living
separately and exercised equally shared physical custody of A.D. and D.D.
under an informal arrangement. Id. at 79.
Specifically, Father was living with his mother and Paternal Grandfather
when A.D. made these disclosures. See N.T., 12/8/22, at 5-6, 28. Paternal
Grandfather is a sexual offender who was required to register pursuant to the
Sexual Offender Registration and Notification Act (“SORNA”). He failed to do
so, was arrested, and was later released on bail upon the condition that he
have no “unsupervised contact” with minors, including his grandchildren. Id.
at 17. Despite this restriction, Father refused to follow a recommended
“safety plan” to “ensure that the children were not with [Paternal Grandfather]
for any unsupervised amount of time[.]” Id. at 28-29. A.D. and D.D. were
declared dependent and placed in emergency foster care, which lasted from
approximately June 2019 through April 2021. Father participated in
supervised visits with the children for the first year of this placement. Id. at
52-53, 79. However, he was eventually discharged for nonparticipation from
two different visitation programs. Id.
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A.D. and D.D. were restored to Mother’s custody in April 2021, and their
initial dependency was concluded in August 2021. Father remained living with
his parents at this point and the prior custody arrangement did not resume.
Id. at 81-82. Despite being advised that he could seek modifications through
the courts, Father declined to take any legal action with respect to obtaining
shared custody or visitation rights as to A.D. and D.D. Id. at 13, 82. Father
also declined to contact the agency to receive additional services. Id. at 101-
02. Beginning in March 2022, Father was arrested and, ultimately,
incarcerated for his third driving under the influence (“DUI”) offense, which
resulted in a one-year term of incarceration with an anticipated release date
of March 18, 2023. Id. at 85. Thus, Father’s contact with A.D. and D.D.
ended in approximately June 2020 and did not resume. Id. at 86, 94.
At some point after he was incarcerated, Father finally underwent a
mental health evaluation indicating that he has problems with depression and
anxiety. Id. at 83, 91. However, he never provided the results of this
purported evaluation to the agency or the trial court. Id. at 91. During this
first period of dependency in this matter, Father also failed to engage with
recommended services to improve his parenting skills. Id. at 11-12.
In May 2022, while Father was incarcerated,
the agency sought and was granted emergency protective custody
of A.D. and D.D. based on allegations that they had insufficiently
explained marks and bruises and the school nurse was concerned
that the children were not safe. A.D. and D.D. were placed in
foster care. A dependency petition was filed alleging the children
were without proper parental care or control. A shelter care
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hearing was held on May 12, 2022, after which they were placed
in the legal and physical custody of the agency with placement
continuing in foster care.
[A]n adjudicatory hearing took place on June 10 and June 17,
2022, after which . . . the trial court on July 7, 2022, found clear
and convincing evidence to substantiate the allegations in the
dependency petition.
Trial Court Opinion, 2/2/23, at 2-3 (cleaned up). The permanency goals for
A.D. and D.D. were initially set at reunification. See N.T., 12/8/22, at 35.
Thereafter, the agency filed petitions seeking to, inter alia, change the
permanency goals for A.D. and D.D. from reunification to adoption. On
December 6 and 8, 2022, the trial court conducted evidentiary hearings on
the petitions, wherein the agency adduced testimony from a number of
individuals, including Emilee Baker, director of Alternative Behavior
Consultants (“ABC”), which provided services to Father, and CYS caseworker
Gayle Schreiber. Father also testified in his own behalf. On December 9,
2022, the trial court entered orders changing the permanency goals with
respect to A.D. and D.D. from reunification to adoption.
Father filed separate, timely notices of appeal in both above-captioned
cases, along with concise statements of errors pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court filed a responsive opinion pursuant to
Rule 1925(a)(2)(ii). Finally, this Court consolidated these cases sua sponte
pursuant to Pa.R.A.P. 513.
Father has purported to raise a single issue for our consideration:
“Whether the trial court abused its discretion in its permanency review of order
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of December 9, 2022, when it changed the permanency goal from reunification
to adoption in regards to [Father]?” Father’s brief at 5.
Although framed as a single issue, Father’s substantive arguments
actually touch upon several separate-but-related concerns. Namely, Father
argues that: (1) he should be excused from failing to comply with the
permanency goal directives due to his incarceration; (2) the record did not
support a conclusion that he failed to maintain contact with A.D. and D.D.;
(3) the trial court erred in finding Father was not a “reunification resource;”
and (4) the trial court inappropriately focused upon Father’s “actions or
inaction,” as opposed to the “best interests” of the children. Father’s brief at
10-15. We will address the merits of each of these assertions, in turn.
This Court reviews a trial court’s permanency determinations for an
abuse of discretion. See Interest of J.B., ___ A.3d ___, 2023 PA Super 100,
at *3 (Pa.Super. 2023). In this context, an abuse of discretion occurs only if
the record reflects that the court’s judgment was manifestly unreasonable, it
did not correctly apply the law, or its action was the result of partiality,
prejudice, bias or ill will. See Interest of H.J., 206 A.3d 22, 25 (Pa.Super.
2019) (cleaned up). We must “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record,” but we
are not bound by the trial court’s “inferences or conclusions of law.” In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). This Court defers to the trial judges,
“who see and hear the parties and can determine the credibility to be placed
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on each witness and, premised thereon, gauge the likelihood of the success
of the current permanency plan.” Id. We are “not in a position to reweigh
the evidence and the credibility determinations of the trial court.” Id.Permanency goal change proceedings are governed by the Juvenile Act,
42 Pa.C.S. §§ 6301-75. In particular, 42 Pa.C.S. § 6351(f) mandates that a
trial court consider a number of discrete factors in adjudicating a goal change
petition including, inter alia: (1) the continuing necessity for and
appropriateness of the placement; (2) the appropriateness, feasibility, and
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) the 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. See J.B., supra
at *3-*4 (citing In re A.B., 19 A.3d 1084, 1088 (Pa.Super. 2011)); see also
42 Pa.C.S. § 6351(f)(1)-(5), (6), (9).
However, the polestar of any dependency matter must be the “safety,
permanency[,] and well-being of the child,” which takes precedence “over all
other considerations, including the conduct and the rights of the parent.” In
the Interest of M.T., 101 A.3d 1163, 1175 (Pa.Super. 2014). Therefore,
“[w]hile parental progress toward completion of a permanency plan is an
important fact, it is not to be elevated to determinative status, to the exclusion
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of all other factors.” Id. In short, “a child’s life 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., 909 A.2d 818, 824 (Pa.Super. 2006).
With respect to his first line of argument, Father asserts that his failure
to make progress on his permanency goals were the result of his incarceration.
See Father’s brief at 11 (“It was uncontroverted that [Father] was
incarcerated throughout the entire duration of the children’s second placement
and could not comply with the [a]gency’s requirements. . . . A lack of
participation in services three years prior is not sufficient to show lack of
compliance during the children’s current placement[.]”).
To the extent that Father is arguing that it was inappropriate for the trial
court to consider the undeniable fact of his incarceration, we must disagree.
This Court has held that even a parent who has made “substantial progress
towards completion of his or her permanency plan” is not immunized from the
inescapable considerations related to incarceration in the dependency context:
[T]he progress that [the parent] made on his permanency plan
prior to his incarceration must be measured against the reality of
his circumstances at present, which are that [the parent] is unable
to provide for any of the needs of his children with regard to
housing, other basic necessities, and day-to-day love, emotional
support and guidance. While [the parent’s] efforts in cooperating
with the [a]gency and working toward his permanency plan goals
may deserve credit, [the parent’s] other actions . . . have resulted
in his . . . imprisonment.
In re A.K., 936 A.2d 528, 534 (Pa.Super. 2007).
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Instantly and unlike the parent in A.K., Father has manifested only
intransigence with respect to the directives or suggestions advanced by the
trial court or the agency prior to his incarceration. See N.T., 12/8/22, at 11-
12, 83, 91. When the troubling allegations concerning A.D. and Paternal
Grandfather arose, Father flatly refused to cooperate in implementing a safety
plan to prevent unsupervised contact between Paternal Grandfather and the
children. Id. at 28-29. Indeed, by his own admission, Father had already
been voluntarily out of contact with A.D. and D.D. for approximately one year
at the time his incarceration began. Id. at 86, 94. Thus, the lack of progress
that Father attempts to attribute to his incarceration seems merely to be a
continuation of his prior stagnation. As the trial court adroitly observed:
“Incarcerated parents maintain connections and meaningful relationships with
their children every day. However, even before his most recent incarceration,
Father’s compliance with the prior permanency plan was inconsistent at first
and then ceased all together.” Trial Court Opinion, 2/2/23, at 33-37.
As detailed above, we observe no abuse of discretion in the trial court’s
conclusions. Furthermore, we reject Father’s suggestion that the trial court
was not permitted to consider the realities of his incarceration in rendering a
dependency decision. See A.K., supra at 534. No relief is due.
Turning to the second aspect of Father’s argument, he asserts that the
record does not support a conclusion that he failed to maintain contact with
A.D. and D.D. See Father’s brief at 12-13. Specifically, he alleges his failure
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to stay in touch with the children was caused by a lack of communication from
the agency. Id. at 12 (“[T]he evidence showed that [Father] was not given
any information on ways to contact the children.”). We must disagree.
The trial court concluded that Father’s lack of contact with A.D. and D.D.
was entirely a result of his own behavior and choices:
Father has not seen his children since some time in 2020 when he
voluntarily “absented” himself from his children’s lives. He
stopped participating in visits after deciding that the Agency had
“sided with” Mother, so, rather than continuing to work on the
reunification services he was offered, he removed himself from
the reunification equation.
....
Father has not sent letters, cards, or gifts to the children. He has
similarly not requested the opportunity to speak with the children
by phone or to have visits in the prison. He has not attempted to
find out how to do so or even if these things are possible. His
testimony seems to suggest that it was the agency’s sole
obligation to provide him with the means to contact his children
and that he was otherwise not responsible for doing so. . . .
Trial Court Opinion, 2/2/23, at (cleaned up).
The certified record fully supports the trial court’s conclusions, while
refuting Father’s claim of agency error. Indeed, Father’s own testimony
indicates that his failure to stay in contact with the children was the result of
his own questionable decision-making. Specifically, Father attested that he
voluntarily ceased participating in visitations with A.D. and D.D. due to
emotional fatigue and a belief the agency favored Mother over him:
Q. At one point did you stop attending visits?
A. Yes.
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Q. Why?
A. I got tired of the questions from [A.D.] and [D.D] as to [the
allegations of sexual abuse against Paternal Grandfather]. I got
tired of lying. I was told I was not allowed to address what [A.D.]
disclosed as to why she wasn’t allowed to see [Paternal
Grandfather]. Also it came to my knowledge that they were
switching sides. First, they were kind of for me to get the kids
back and then they went towards [Mother]. At that point it was
[sic] already been a year. In my opinion[,] it was best for one of
us to have them than neither of us, whatever was [sic] quickest
possible way to get them out of foster care, so I went absent.
N.T., 12/8/22, at 79-80.
After A.D. and D.D. were returned to Mother’s custody, Father
acknowledged that he was advised by a representative of the agency that he
would need to file a petition with the court in order to seek a modification of
custody, i.e., in order to re-establish contact and involvement with his
children. Id. at 81-82. However, Father was in a “very depressive state,”
and he neglected to take any action to re-establish contact with his children
aside from an alleged, half-hearted attempt to message Mother on Facebook.
Id. at 82. Thereafter, Father was incarcerated, during which time he
continued to make no efforts whatsoever to reach out to A.D. and D.D. Id.
at 84-85. During this time, however, the agency also reached out to him on
at least two occasions to unsuccessfully try and facilitate his participation in
dependency proceedings. Id. at 54.
We recognize that Father now believes that his voluntary decision to
“absent” himself from his children’s life was a “mistake” that he “deeply
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regrets.” Id. at 95-96. However, we observe no basis upon which to assign
any culpability to the agency. To the contrary, the record reflects that
representatives from the agency unsuccessfully contacted Father on multiple
occasions in an attempt to involve him in the children’s lives. Id. at 54, 81-
82. Throughout these proceedings, Father voluntarily chose to remove
himself from the lives of A.D. and D.D. Furthermore, he flatly refused to
contact the agency to seek more information or inquire as to how he could
contact A.D. and D.D. Id. at 101, 104. Thus, the trial court’s conclusions are
well-supported by the record. We observe no basis upon which to conclude
the agency was somehow responsible for Father’s lack of contact with A.D.
and D.D. See In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010) (“The
agency is not required to offer services indefinitely, where a parent is unable
to properly apply the instruction provided.”).
Father’s third line of argument concerns the trial court’s conclusion that
he was not a “reunification resource.” Father’s brief at 13-14. Specifically,
he avers that “[t]he trial court’s conclusion that [Father] cannot provide a
suitable home for reunification simply is not supported by the facts of record.”
Id. at 14. As above, the lynchpin of Father’s argument on this point is that
the trial court inappropriately focused upon the fact of Father’s incarceration.
Id. at 14. To the extent Father suggests that it was improper for the trial
court to consider the impediments caused by his imprisonment in changing
the permanency goals, he is mistaken. See A.K., supra at 534.
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The remainder of Father’s argument asserts that the trial court failed to
credit Father’s speculative assertions that he would: (1) be released as
scheduled; (2) be able to obtain alternative housing apart from his parents,
including Paternal Grandfather; and (3) that he would resume contact with his
children. See Father’s brief at 14. We discern Father is essentially asking this
Court to re-weigh the evidence and reach a different conclusion than the trial
court. We emphasize that we are not permitted to supplant the credibility and
factual findings of the trial court where they are supported by the record. See
R.J.T., supra at 1190. Furthermore, our review finds that the trial court’s
challenged conclusions are well-supported by the certified record.
Specifically, the trial court found as follows:
Father is presently incarcerated and eligible for parole in March
2023, for his third controlled substance DUI. At present, his plan
is to return to the home of his parents. Given the allegation made
by A.D. involving Paternal Grandfather (regardless of whether the
allegations were founded, unfounded or otherwise) and Paternal
Grandfather’s prior requirement to register under SORNA for a
sexual assault conviction, we cannot find that paternal
grandparents’ home is an appropriate place for reunification of the
children in the near future. We also note that Father was not
willing in the past to comply with a safety plan with respect to his
children and their access to [Paternal Grandfather].
Further, Father acknowledged that he is not ready to have the
children in his care at this time. Even upon release [from
incarceration], he agreed that he will need a period of time to
become reacquainted with them through supervised visits.
Accordingly, there is no likely or realistic date by which
reunification with Father can be achieved.
....
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[G]iven his history of compliance and his current inability to
parent the children, Father is not a reunification resource. . . .
Given this record, we find that the children’s best interests,
including their safety, permanency, and well-being . . . demand
that the goal of reunification be changed to adoption.
Trial Court Opinion, 2/2/23, at 33-34, 37.
Father’s own testimony supports the trial court’s conclusions above.
Specifically, Father testified that he would return to living with his parents
following his anticipated release from prison in March 2023. See N.T.,
12/8/22, at 85-86. While Father claimed that this living arrangement would
only be “temporary,” he concomitantly acknowledged that he would be unable
to immediately resume parental duties upon being release from prison:
Q. You’re recognizing that even if [the reunification process]
were to begin when you were released from jail that would take
some time then, that you have some things left unfinished that
you need to work on in order to accomplish that?
A. Yes.
N.T., 12/8/22, at 95. Indeed, when asked an open-ended question as to what
he believed his primary parental “deficiencies” were, Father admitted that he
needed help: “Everywhere.” Id. at 105.
Based upon the foregoing testimony, the trial court’s findings with
respect to Father’s inability to be a “reunification resource” is supported by
the certified record. Thus, we are bound by the court’s conclusions. See
R.J.T., supra at 1190. Thus, Father’s third claim also fails.
Father’s fourth and final assertion concerns the trial court’s alleged
failure to address the “best interests” of A.D. and D.D. See Father’s brief at
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15 (“[T]he trial court cites [Father’s] actions or inaction to justify the goal
change rather than citing why the goal change is in the best interests of the
children.”). Specifically, Father claims that “the record is devoid of any
evidence or testimony in regards to why it is not in the children’s best interests
to be reunified with Father.” Id. at 16. We must disagree.
As detailed above, the record unanimously reflects that Father absented
himself from the lives of A.D. and D.D. for approximately two years.
Furthermore, at the time of the proceedings in this matter, Father remained
incarcerated and was completely unable to care for A.D. and D.D. until at least
March 2023. Assuming, arguendo, that Father was released on time, he also
conceded that he would not be able to immediately assume parental duties
and would need additional services from the agency, as well as an opportunity
to obtain alternative housing. Id. at 94-95. Indeed, Father even
acknowledged that his deficiencies as a parent were essentially universal in
scope. Id. at 105. Thus, Father’s position appears to be that the trial court
should have held this matter in perpetual abeyance, placing the children in
limbo while Father was afforded an open-ended opportunity to better himself.
We note that Father seems unable to connect the deleterious impact of
his actions and inactions upon A.D. and D.D. Due to Father’s own choices, he
has been completely absent from the children’s lives for over two years at the
time of the hearings in these proceedings. Furthermore, he has refused to
cooperate with the agency concerning his parental skills, the concerns
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regarding Paternal Grandfather, or visitations with the children. Although
Father espouses new promises of diligence, we emphasize that “a child’s life
cannot be put on hold in the hope that the parent will summon the ability to
handle the responsibilities of parenting.” N.C., supra at 824. The policy
underlying the Juvenile Act is “to prevent children from languishing indefinitely
in foster care, with its inherent lack of permanency, normalcy, and long-term
parental commitment.” Id. at 823.
As detailed above, there is no date certain on which Father might
resume caring for A.D. and D.D. Furthermore, we also note that both A.D.
and D.D. have been diagnosed with significant mental health problems that
require therapy and regular care. See N.T., 12/8/22, at 31, 33, 36. Thus,
any further delays in long-term permanency and stability for A.D. and D.D. is
an even greater, instant concern. See N.C., supra at 823-24. If credited,
Father’s arguments would essentially supplant one of the bedrock notions of
dependency proceedings, i.e., permanency and stability of the child. See In
re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006) (“The court
cannot and will not subordinate indefinitely a child's need for permanence and
stability to a parent's claims of progress and hope for the future.”).
Based upon the discussion detailed above, we observe no abuse of
discretion or error law in the trial court’s determination with respect to the
best interests of A.D. and D.D. and conclude that the trial court’s analysis
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comports with the relevant considerations outlined in § 6351(f) concerning
the matters to be determined at the permanency review hearing.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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2 We note that the trial court did not “itemize” its findings and that A.D. and
D.D. had been in placement for only seven months at the time that the trial
court entered the December 9, 2022 goal change order, which is less than the
fifteen-to-twenty-two-month period highlighted in § 6351(f)(9). However,
this Court has explained that § 6351(f)(9) is “merely one of a number of
factors a trial court must consider in ultimately determining whether the
current placement is appropriate or if and when another placement would be
appropriate based upon the trial court’s assessment of what is best suited to
the safety, protection and physical, mental and moral welfare of the child.”
In re R.J.T., 9 A.3d 1179, 1191 (Pa. 2010) (also upholding trial court
reasoning that obviously “considered the various factors of § 6351(f)” even
where it “failed to itemize its findings”).
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