Interest of: K.C. Appeal of: G.C. ( 2023 )

J-S34010-23
2023 PA Super 245IN THE INTEREST OF: K.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: G.C., FATHER :
:
:
:
: No. 487 WDA 2023
Appeal from the Order Entered March 31, 2023
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-DP00001169-2019
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
OPINION BY LAZARUS, J.: FILED: November 29, 2023
G.C. (Father)1 appeals from the dependency order,2 entered in the Court
of Common Pleas of Allegheny County, changing the placement goal of K.C.
____________________________________________
1 Mother has written a letter “join[ing Father]’s brief insofar as [she] agree[s]
that the trial court acted prematurely in changing [Child’s p]ermanency [g]oal
to ‘Subsidized Permanent Legal Custodianship.’” Mother’s Juvenile Court
Project Letter, 8/1/23.
2 Generally, orders changing a placement goal are considered final. See In
re H.S.W.C.-B., 836 A.3d 908 (Pa. 2003) (order granting status change final
when entered). However, we are aware that the trial court highlighted the
importance of the parties reaching an agreement regarding visitation and that
“[o]nce the follow-up meeting [to determine visitation] has occurred, the
[c]ourt believes it is possible for PLC to be promptly finalized so that [Child]’s
case [can] be closed. Permanency Review Order, 3/28/23, at 2 (emphasis
added). Despite the fact that this language may imply that the goal change
order is not final for appeal purposes, we note that when permanent legal
custodianship is granted, visitation issues are no longer within the purview of
the juvenile court division. See 42 Pa.C.S.A. at § 6351(a)(2.1) (“The court
shall refer issues related to support and continuing visitation by the parent to
the section of the court of common pleas that regularly determines support
and visitation.”). Thus, we conclude that the instant appeal is taken from a
(Footnote Continued Next Page)
J-S34010-23
(Child) (born 10/2017) from reunification to permanent legal custodianship
(PLC) – non-relative.3 See 42 Pa.C.S.A. § 6351(a)(2.1).4 After careful review,
we affirm.
On September 30, 2019, Child was diagnosed with failure to thrive,
requiring, among other things, that Parents implement a structured feeding
plan, provide meals in a highchair, offer small portions of food at each meal,
and limit distractions while eating. Child’s weight had dropped below the third
percentile for children her age and gender. In early October 2019, Child was
____________________________________________
final order changing Child’s permanency goal. See also Trial Court
Supplemental Opinion, 10/27/23, at 6 (court designating instant order final
where PLC arrangements in Allegheny County “do not lend themselves to
simultaneous entry of the goal change order and the PLC order”).
3 See 2019 Pa. HB 856, Chapter 31 (Family Finding and Kinship Care), § 3102
(Definitions) (defining “Permanent legal custodian” as “[a] person to whom
legal custody of the child has been given by order of a court pursuant to 42
Pa.C.S.[A.] § 6351(a)(2.1)”).
4 Section 6351(a)(2.1) provides, if a child is found to be dependent, the court
may make the following order of disposition “best suited to the safety,
protection, and physical, mental, and moral welfare of the child:
(2.1) Subject to conditions and limitations as the court prescribes,
transfer permanent legal custody to an individual resident in or
outside this Commonwealth, including any relative, who, after
study by the probation officer or other person or agency
designated by the court, is found by the court to be qualified to
receive and care for the child. A court order under this paragraph
may set forth the temporary visitation rights of the parents. The
court shall refer issues related to support and continuing visitation
by the parent to the section of the court of common pleas that
regularly determines support and visitation.
42 Pa.C.S.A. § 6351(a)(2.1).
-2-
J-S34010-23
admitted to the Children’s Hospital of Pittsburgh (CHP) to address her weight
loss issues. On October 16, 2019, Child was gaining weight in CHP as a result
of being put on a feeding plan; however, hospital staff noted the Child had an
oral aversion resulting from behavioral issues. See Stipulations in No. CP-
02-AP-0008-22, 7/14/22, at 7(h). CHP agreed to allow Parents and Child to
move to a “nesting room” in CHP where Parents would be responsible for
feeding Child for the week. While there, Child would be weighed daily.
Parents met with hospital staff on November 13, 2019, to review the family’s
progress and determine a discharge plan. Child was discharged to return
home with Parents, with the condition that they return for regular weight
checks at CHP.
On November 25, 2019, the Allegheny County Office of Children Youth
and Families (CYF) filed an application for emergency protective custody of
Child, who had been readmitted to CHP three days prior. The application
alleged that Child “has been diagnosed with failure to thrive[,] . . . has severe
eating difficulties, and has been hospitalized at C[HP] and/or admitted to the
Children’s Home previously due to losing weight.” Application for Emergency
Protective Custody, 11/25/19, at 3. CYS alleged that at the time Child was
admitted to Children’s Home, Parents were homeless, and that “at this time,
[Child] cannot safely return to the care of her parents when discharged from
C[HP].” Id. That same day, the court issued an emergency order for
protective custody of Child, granting legal custody to CYF.
-3-
J-S34010-23
On November 29, 2019, Child was placed in her current certified foster
home, provided by Bethany Christian Services, upon discharge from CHP.
Foster parents, R.H. and L.H., are Child’s permanent legal custodians. Child
also resides with her foster brothers. Stephanie Pawlowski, Esquire, from Kids
Voice, was appointed as Child’s guardian ad litem (GAL).5 Child was
adjudicated dependent on January 15, 2020; Parents were granted supervised
visits three times a week. Permanency review hearings were held in June
2020, July 2020, November 2020, and March 2021. After Parents completed
coached visitation with Justice Works, their visits with Child transitioned to
unsupervised in March 2021.
In May 2021, in response to CYF’s motion to have all future visitation
between Child and Parents supervised, the court ordered Parents have at least
two supervised visits per week in Parents’ home and that “CYF may increase
the frequency of the supervised visits if deemed appropriate, based on
Parents’ consistency and progress[] with the twice-weekly visit.” Order,
5/25/21. Another permanency hearing was held in July 2021. In October
2021, Father petitioned to have overnight visits with Child. The court denied
Father’s petition, without prejudice to review the request at the next
scheduled permanency review hearing.
At the next permanency hearing, held on November 4, 2021, the court
found that Child’s placement continued to be necessary and appropriate and
____________________________________________
5 Parents’ three other children were placed in kinship care with maternal
grandparents.
-4-
J-S34010-23
that both Mother and Father had “moderately” complied with their
permanency plans, but that the placement goal remained return to parent. At
that time, Child had been in placement for 15 of the last 22 months. Of
significance, the permanency review order noted that “[t]he ongoing dynamic
of Mother relying on Father to provide discipline and redirection continues to
be observed in the visits.” Order, 11/4/21, at ¶ 9.6
At a February 2022 permanency hearing, the court found Mother had
moderately complied with her permanency plan and that Father had not
complied at all, and, in fact, “remained uninvolved.” Permanency Review
Order, 2/25/22, at 1. Notably, the court “[found] that Parents have made no
progress toward reunification over the last review period” and that both
Mother’s and Father’s failure to respond to outreach from service providers
has contributed to their delay in receiving vital services. Id. at ¶ 10.
____________________________________________
6 On January 26, 2022, on a related adoption docket, CYF filed a petition to
involuntarily terminate Parents’ parental rights to Child, pursuant to 23
Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A.
§§ 2101-2938, and to change the permanency goal from reunification to
adoption. The court held three days of termination hearings in July 2022,
December 2022, and January 2023. On November 3, 2022, the court granted
Parents unsupervised visitation with Child for four hours each week. On
December 6, 2022, the court extended the hours of unsupervised visitation—
from four to eight hours weekly. Child was represented by GAL, Erin
Krotoszynski, Esquire, at the hearings. On January 26, 2023, the court denied
CYF’s petition to terminate, concluding that Father had eliminated the
conditions leading to Child’s placement. The court also denied CYF’s request
to change the goal to adoption. Because we do not have the adoption docket
record before us in this dependency case, we are limited to the facts
surrounding the filing of the termination petition.
-5-
J-S34010-23
On June 10, 2022, Father filed another petition to modify his visitation
schedule, seeking to have the visits occur in his home. The court granted the
motion, keeping all visits supervised, but permitting “coached visitation” to
occur in the family home. Order, 6/10/22. On July 8, 2022, however, the
court granted special relief to CYF by ensuring that Parents’ Thursday visits
continue to be supervised and occur at the community center near the
maternal grandparents’ home. See Special Relief Order, 7/8/22. At an
August 2022 permanency hearing, therapist Bethany Tintsman testified that
both Father and Mother were making good progress with intensive family
coaching, that Father “has mastered the skills addressed in Phase 1—focusing
on child-directed interaction and strengthening bond between parent and
child)—and that Parents are engaged and equally involved in the sessions.
See Permanency Review Order, 8/3/22, at ¶¶ 8-10.
On March 3, 2023, CYF filed a motion for goal change from reunification
to permanent legal custodianship. On March 28, 2023, the court held a status
conference and hearing on CYF’s motion for goal change. At the outset of the
hearing, the court noted that in making its decision, it “consider[ed] the entire
record of th[e termination of parental rights] proceeding” as well as “all of the
[permanency] review hearing orders and findings, all of the decisions on
motions []—but, basically, in my view, I’m making a determination based on
the entirety of the record to date.” N.T. Status Conference and Motion for
Goal Change, 3/28/23, at 5-6. At the time of the goal change hearing, Parents
had unsupervised visits with Child twice a week—Tuesdays from 4:00 PM-6:00
-6-
J-S34010-23
PM and Saturdays from 11:00 AM-5:00 PM—at Parents’ home. Id. at 22.
Parents and CYF had been discussing starting overnight visits with Child, with
another planned meeting to discuss the possibility the following month, in
April.7 Id. at 23, 28.8 In entering his order, the trial judge made it clear that
changing the goal to permanent legal custodianship “includes in it the parents’
visitation with the child. There will not be an order entered without that being
covered.” Id. at 49.
Father filed a contemporaneous notice of appeal from the court’s goal
change order and a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(a)(2). On appeal, Father presents the following issues for our
consideration:
(1) Did the trial court err and abuse its discretion in changing
the permanency goal to [PLC]?
(2) Did the trial court commit an error of law or abuse its
discretion by not allowing Father to move toward
reunification prior to the date of the hearing by failing to
increase visits with the minor child, despite Father having
consistently shown progress and met his goals set by [CYF]?
(3) Whether the trial court erred in entering such an order
changing the goal so soon after it made findings supporting
reunification in the termination proceedings.
____________________________________________
7 Obsessive self-stimulation while at Parents’ home was one of the main
concerns with permitting Child to have overnight visitation with Parents. Id.
at 24.
8 During the goal change hearing, Father testified that Mother had just been
diagnosed with stage-4 lung cancer. Id. at 40.
-7-
J-S34010-23
(4) Whether the trial court erred in changing the permanency
goal without any guarantee that a visitation schedule would
be able to be worked out between the parties.
Father’s Brief, at 6 (renumbered).
It is well settled that “the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365,
governs the placement and custody of a dependent child.” See In re N.C.,
[] 909 A.2d 818, 823 (Pa. Super. 2006). The law of this Commonwealth
empowers a Juvenile Court to make an award of permanent legal custody as
a permanency option for a dependent child. See 42 Pa.C.S.A. § 6351(a)(2.1).
“This Court reviews an order regarding a dependent child’s placement goal
pursuant to an abuse of discretion standard.” See Interest of H.J., 206 A.3d
22, 25 (Pa. Super. 2019). “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.”
In re N.C., supra at 822-23 (internal citations and quotations omitted).
“When considering a request to modify permanency goals, the trial court
must focus on the health and safety of the child, which takes precedence over
all other considerations.” See In re A.H., 763 A.2d 873, 878 (Pa. Super.
2000). To that end, the trial court must consider,
(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 child[]; (5) a likely date by
which the goal for the child might be achieved; (6) the
-8-
J-S34010-23
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.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citing 42 Pa.C.S.A. §
6351(f)). See also Pa.R.J.C.P. 1608(D)(1)(q) (at each permanency review
hearing, court must consider “whether the visitation schedule for the child
with the child’s guardian is adequate, unless a finding is made that visitation
is contrary to the safety or well-being of the child”).
Moreover, although preserving the unity of the family is a purpose
of [the Juvenile Act], another purpose is to “provide for the care,
protection, safety, and wholesome mental and physical
development of children coming within the provisions of this
chapter.” 42 Pa.C.S.[A.] § 6301(b)(1.1). Indeed, “[t]he
relationship of parent and child is a status and not a property right,
and one in which the state has an interest to protect the best
interest of the child.” In re E.F.V., [] 461 A.2d 1263, 1267 ([Pa.
Super.] 1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
In Pennsylvania, a juvenile court may award permanent legal
custody to a child’s caretaker pursuant to [s]ection 6351(a)(2.1)
of the Juvenile Act. This is an arrangement whereby a juvenile
court discontinues court intervention[,] as well as supervision by
a county agency, and awards custody of a dependent child, on a
permanent basis, to a custodian. Parental rights are not
terminated. See In re H.V., [] 37 A.3d 588, 589 ([Pa. Super.]
2012).
* * *
A trial court may consider permanent legal custody, upon the filing
of a petition by a county children and youth agency that alleges
the dependent child’s current placement is not safe, and the
physical, mental, and moral welfare of the child would best be
served if subsidized permanent legal custodianship (SPLC) were
granted. See In re S.B., 943 A.2d 973, 983-[]84, [(Pa. Super.
-9-
J-S34010-23
2008)]. Upon receipt of this petition, the court must conduct a
hearing and make specific findings focusing on the best interests
of the child. See id. In order for the court to declare the
custodian a “permanent legal custodian[,]” the court must find
that neither reunification nor adoption is best suited to the child’s
safety, protection[,] and physical, mental[,] and moral welfare.
See id.; see also 42 Pa.C[.]S[.]A[.] § 6351(f.1).
In re S.H., 71 A.3d 973, 977-78 (Pa. Super. 2013). See also In re K.T.,
296 A.3d 1085, 1116 n.33 (Pa. 2023) (“PLC is a permanency goal when
neither reunification nor adoption is best suited for the child, 42 Pa.C.S.[A.]
§6351(f.1)(3). For example, a court may grant PLC when a caregiver accepts
legal responsibility [for] a child[,] but is unwilling or unable to adopt.”).
In In re S.H., supra, our Court held that “neither the Juvenile Act nor
the Adoption and Safe Families [A]ct of 1997 prohibit[s] a parent from
petitioning the trial court to regain custody of a child who is the subject of an
award of permanent legal custody.” Id. at 982. See Office of Children and
Youth and Families Bulletin 3130-10-02/3140-10-03, at 4 (July 30, 2010)
(recognizing permanent legal custody is not, in fact, permanent, where
parents have right to petition court for custody of child); PA Judicial Deskbook,
Juvenile Law Center, 4th ed. (2004), at 151, 155-56 (acknowledging parents
who may not be able to rehabilitate themselves within given period of time
may be able to reunify with child following establishment of PLC). To hold
otherwise would “amount of a de facto termination of [a parent’s] legal and
primary physical custody rights.” Id. at 979.
After a comprehensive review of the parties’ briefs, relevant case law
and statutes, and the certified record on appeal, we conclude that the court
- 10 -
J-S34010-23
correctly determined that its order changing the goal to PLC was in Child’s
best interest. See 42 Pa.C.S.A. §§ 6351(f.1)(3) (based upon determinations
under subsection 6351(f) and all relevant evidence, court shall consider “[i]f
and when the child will be placed with a legal custodian in cases where the
return to the child’s parent, guardian[,] or custodian or being placed for
adoption is not best suited to the safety, protection[,] and physical, mental[,]
and moral welfare of the child.”); id. at § 6351(g) (“On the basis of the
determination made under subsection (f.1), the court shall order the
continuation, modification[,] or termination of placement or other disposition
which is best suited to the safety, protection and physical, mental[,] and moral
welfare of the child.”). Child has been in placement for over three years (more
than half of her life) and, “[w]hile Parents have made recent progress with the
implementation of services, there is no evidence that Parents, together, are
capable of sustaining this progress.” Trial Court Opinion, 6/27/23, at 12. See
also In re H.V., supra (trial court erred changing goal to PLC where children
were in placement for three years, but mother alleviated circumstances that
led to children’s placement, threat of father no longer existed, children wanted
to be returned to mother and family home, and mother’s home “was [the]
only home [children] knew for three, seven[,] and nine years since their
respective” births).
Although Father has substantially complied with his service plan goals,
progressed to some periods of unsupervised visits, and shown he is capable
of parenting Child, the court astutely observed that, without Mother having
- 11 -
J-S34010-23
the same parenting capability,9 Father will simply be unable to provide Child
with the “irreducible minimum requirements,”10 especially where he is also a
parent to three other young children.
In order for the court to have granted the current goal change, CYF was
required to “prove that reunification or adoption is not best suited to [C]hild’s
safety, protection[,] and physical, mental[,] and moral welfare.” In re S.H.,
supra at 979-80. The record bears out that Child continues to have significant
emotional, behavioral, and medical needs that require constant supervision
and close monitoring. Child’s foster family has created a loving and stable
environment for Child to ensure that she is properly monitored and supervised
so that she is properly fed and is safe in their home. In re M.T., 101 A.3d
1163, 1175 (Pa. Super. 2014) (holding court should consider bond between
child and parents, foster parents, and siblings when deciding whether to
change goal). Moreover, as evidenced by the court’s denial of CYF’s petition
to terminate Father’s parental rights to Child, see supra at n.6, the parent-
child bond here is so strong that it would not be in Child’s best interest to
sever same. See PA Judicial Deskbook, Juvenile Law Center, 4th ed. (2004),
____________________________________________
9 Mother has made minimal progress toward alleviating the circumstances that
led to Child’s placement.
10 In re J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (“Essential parental care
. . . denotes certain irreducible minimum requirements to which all children
are entitled from their parents, including adequate housing, clothing, food[,]
love, and supervision.”) (emphasis added).
- 12 -
J-S34010-23
at 155-56 (PLC appropriate permanency option where child has bond with
parent that precludes termination of parental rights).
Here, the trial judge, who was well-acquainted with the parties, combed
through the voluminous evidence in the parties’ Juvenile and Family Division
matters and determined that it was in Child’s best interest to change the
“permanency goal [to] legal custody [so] that she [can] absolutely continue
her important and positive relationship with her parents and her siblings[.]”
N.T. Status Conference and Motion for Goal Change, 3/28/23, at 14. See In
re K.J., 27 A.3d 236 (Pa. Super. 2011) (“It is this Court’s responsibility to
ensure that the record represents a comprehensive inquiry and that the
hearing judge has applied the appropriate legal principles to that record.”).
Noting the highly deferential standard we afford to a dependency court,
we reiterate that:
we are not in a position to make the close calls based on fact-
specific determinations. Not only are our trial judges observing
the parties during the hearing, but usually, as in this case, they
have presided over several other hearings with the same parties
and have a longitudinal understanding of the case and the best
interests of the individual child involved. Thus, we must defer to
the trial judges who see and hear the parties and can determine
the credibility to be placed on each witness and, premised
thereon, gauge the likelihood of success of the current
permanency plan. Even if an appellate court would have
[reached] a different conclusion based on the cold record, we are
not in a position to reweigh the evidence and the credibility
determinations of the trial court.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Although undoubtedly a difficult
decision for any jurist, the trial judge commendably balanced the best
- 13 -
J-S34010-23
interests of Child, which included her need for permanency and stability met
by Foster Parents, with the importance of her maintaining a relationship with
Father.11 Because the court’s findings are supported by the record, we affirm.
In re A.B., 19 A.3d 1084, 1089 (Pa. Super. 2011) (citations and quotation
marks omitted) (“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 his second and fourth issues, which we address together, Father
contends that the court erred by not permitting him to “move toward
reunification prior to the date of the [goal change] hearing, by failing to
increase visits with [C]hild[.]” Father’s Brief, at 6. He also claims that the
court erred when it changed the goal to PLC “without any guarantee that a
visitation schedule would be able to be worked out between the parties.” Id.Despite Father’s preference that he have overnight, unsupervised visits
with Child, the record shows that since May 2021, Father’s visits have
progressed to not only being unsupervised, but also are now held in his home.
Additionally, we remind Father that the use of the term “[PLC] does not confer
or divest parents of any substantive rights but[,] rather[,] addresses the
proper venue for visitation and support matters following the grant of a
permanent legal custody arrangement.” In re S.H., 71 A.3d at 979 (emphasis
added). Father may continue to seek overnight visits or increased
____________________________________________
11 We remind Father that he is not precluded from petitioning the trial court
to regain custody Child. See In re S.H., supra at 982.
- 14 -
J-S34010-23
unsupervised visitation with Child, albeit through family court and not juvenile
court. See 23 Pa.C.S.A. §§ 5324, 5338.
Finally, Father argues that the trial court erred by “changing the goal so
soon after it made findings supporting reunification in the termination
proceedings.” Father’s Brief, at 6. First, we note that the court’s decision to
deny termination did not support reunification, rather it acknowledged that
CYF did not prove, by clear and convincing evidence, that changing the goal
to adoption was in Child’s best interests. Moreover, as the court acknowledges
in its Rule 1925(a) opinion, “the Juvenile Act does not impose any time
restriction on courts as to when they may next consider a goal change
following the denial of a [termination of parental rights] petition.” Trial Court
Opinion, 6/27/23, at 16. Rather the Juvenile Act mandates that a court
consider the appropriateness of the permanency goal at each scheduled
permanency review hearing.
Order affirmed.
DATE: 11/29/2023
- 15 -