Adoption of: L.B., Appeal of: A.M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.M., NATURAL MOTHER :
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: No. 1544 WDA 2019
Appeal from the Order Entered September 12, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-DP-0000073-2017
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: June 8, 2021
A.M. (Mother) files this appeal from the order changing the permanency
goal for L.B., born in December 2012 (Child), to adoption. This Court
previously remanded this matter for Mother’s counsel, Nicole L. Thurner
(Counsel), to file a new petition to withdraw from representation and
Anders/Santiago1 brief or an advocate’s brief.2 Counsel has filed a new
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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009); see also In re J.D.H., 171 A.3d 903, 906 (Pa.
Super. 2017) (concluding that Anders procedures apply in appeals from goal
change orders).
2 Counsel filed a notice of appeal docketed at 1239 WDA 2019 on August 19,
2019, challenging the order granting the petition to terminate her parental
rights, and a notice of appeal docketed at 1544 WDA 2019 on October 11,
2019, challenging an order granting a goal change. Although we previously
consolidated these matters for disposition we now address these appeals
separately, as they now present different issues.
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petition to withdraw and an Anders/Santiago brief. We affirm and grant
Counsel leave to withdraw in this appeal.
The trial court summarized the facts and procedural history of this
appeal as follows:
The Agency received a referral on June 13, 2017, indicating that
Mother and Father were residing together and using drugs. The
couple had an extensive history of domestic violence. [The
Agency] conducted a home visit at residence of Mother and Father
[(collectively, Parents)]. Neither parent appeared under the
influence, but appeared to have just woken. However, the Parents
were unable to provide a urine screen at that time. Father agreed
with and signed the safety plan. On July 6, 2017, Father called
the Agency to report that he was at Butler Memorial Hospital
detoxing from cocaine use, Mother was homeless and using drugs.
Father informed the agency that he had left the Child in the care
of [Child’s] paternal cousins . . . (the “Kinship [Placement]
Family”). [Child] was placed on a 30 day safety plan with the
Kinship Placement Family. After that, Father had no contact with
the Agency for some time. [The Agency] attempted to contact
Mother multiple times. On July 24, 2017, Mother contacted the
Agency and acknowledged that she did not have a residence and
could not care for [Child]. Mother explained that she was helping
a friend remodel, had an interview, and was getting a car fixed.
Just before the safety plan was scheduled to end, Father left the
hospital. Mother was believed to be homeless. She had not met
with [the Agency] or provided a drug test. [Child] was detained
on August 7, 2017, when the safety plan ended as both of her
parents were homeless and unable to care for her. Upon her
detention, [Child] remained with the Kinship [Placement] Family.
Neither Mother nor Father attended the Shelter Care Hearing.
An Adjudication Hearing was held on August 23, 2017, at which
time [Child] was adjudicated dependent. Mother attended this
hearing in person, while Father attended via telephone. Both
Parents placed sufficient admissions on the record to support an
adjudication of dependency. Mother also submitted to a drug
screen on this day, which was positive.
On September 11, 2017, Mother attended the hearing in person,
while Father again attended via telephone. Following the hearing,
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the Court concluded that it was in the best interest of [Child] to
be removed from Mother’s and Father’s homes. Visitation was
ordered, permitting Mother supervised visits twice per week, and
Father supervised visits one every other week. The following
objectives were also set for Mother:
• Maintain a legal source of income to meet [Child’s] needs;
• Choose healthy relationships with people who are drug -free
and safe for [Child] to be around;
• Maintain safe and stable[] housing with utili[t]es that are in
working order;
• Attend and actively participate in [Child’s] medical, dental,
educational and developmental appointments to the best of
her ability;
• Participate in weekly drug screens with two random drug
screens;
• Schedule and attend drug and alcohol assessment and will
notify caseworker the date and time;
• Follow any/all recommendations of the drug and alcohol
assessment;
• Participate in mental health assessment of a provider of her
choice and follow any recommendations made; and
• Inform her mental health providers that information shall be
shared with the Agency and will sign any necessary
releases.
* * *
On September 12, 2017, Mother was assessed at [Gaiser].
[Gaiser] recommended that Mother received drug treatment.
Mother started, but was unable to attend due to the fact that she
was residing in Pittsburgh. Mother requested a referral to another
agency. Family Pathways also conducted a mental health
assessment on the same day and recommended mental health
treatment as well. Mother did enter an inpatient treatment
program at Cove Forge in October of 2017. Upon her discharge
in November of 2017, Mother moved back to her parents’
residence in Butler County. Mother then began intensive
outpatient treatment at [Gaiser] providing weekly drug screens
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while residing with her parents, which were negative. Mother also
began receiving Mental Health treatment at the Care Center.
On December 4, 2017, a permanency review hearing was held at
which Mother attended . . . . Mother was found to have been in
substantial compliance with her permanency plan. She had
completed treatment in intensive outpatient treatment at
[Gaiser], begun Vivitrol treatments for alcoholism (ultimately,
Mother only received 4 treatments before leaving treatment), was
living with her parent, and seeking employment. She had
generally been providing clean drug screens, though she did have
3 refusals. The [c]ourt found that she had made moderate
progress toward alleviating the circumstances which necessitate
the original placement.
While living in the highly supportive environment of her parents’
home, Mother had been doing very well. Mother secured
employment as a Manager at BiLo. She was attending all of the
Child’s medical and educational appointments. She had also been
attending mental health treatment at The Care Center. Mother
successfully completed her intensive outpatient treatment with
[Gaiser] on February 16, 2017. She was then stepped-down to
outpatient treatment. While Mother had been progressing, she
experienced a major setback. Mother had a very serious
argument with Maternal Grandmother on February 23, 2018,
which ended in her being kicked out of the home.
As usual, Mother took no responsibility for her actions and placed
the blame on others. Mother alleges that it involved Maternal
Grandmother’s refusal not to argue in front of the Child. Maternal
Grandmother ultimately kicked Mother out. Mother claims that
she was unable to get to work and was fired since Maternal
Grandmother provided her transportation to work. Mother
explained that because Maternal Grandmother did not help her,
she relapsed. Mother was discharged from [Gaiser] and the Care
Center shortly thereafter for noncompliance. Rather than turn to
the Agency for help, or even inform the Agency of her change in
residence, Mother states that she went to Catholic Charities for
assistance, but was turned downed. Mother failed to maintain
contact with the Child or [the Agency] during this period. With
the next hearing looming, she entered Cove Forge again on March
25, 2018.
Mother attended the March 26, 2018 Hearing by telephone.
Mother failed to acknowledge that had been discharged from her
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last IOP [(intensive outpatient program)] with [Gaiser] or the Care
Center for non-compliance. Without this information, the Court
gave Mother the benefit of the doubt, concluding that she was in
moderate compliance with her plan and had made moderate
progress. . . .
Mother had been successfully discharged from Cove Forge on May
30, 2018. Following her discharge, Mother entered the Cove
Forge Renewal Center, which is a halfway house for women in
recovery. Mother again did very well in this highly supportive
environment and visited consistently with [Child].
As of the July 10, 2018 permanency review hearing, the [c]ourt
again concluded that Mother was in substantial compliance and
had made substantial progress. The court noted that Mother was
addressing her drug and alcohol addiction, receiving appropriate
treatment, and had maintained her sobriety. Mother’s lack of
stable housing was the only goal that she had not met at that
point.
The next Permanency Review Hearing was held on October 9,
2018. At this point, Mother continued to progress. She was still
residing in the Renewal half-way house and [maintaining] her
sobriety and mental health treatment. However, she was still
working on providing stable housing. Consequently, the [c]ourt
concluded that she was in substantial compliance with her
permanency plan and had made substantial progress. . . .
* * *
Following the December 11, 2018 Permanency Review Hearing,
the [c]ourt once more concluded that Mother was in substantial
compliance with her permanency plan. While Mother continued to
reside in her half-way house, she was complaint with her dual
diagnosis treatment, attended visitation and actively sought
opportunities to better herself through services. Mother’s
Counselor at Renewal, Kimberly Benna, testified at the hearing
that Mother had successfully completed Renewal’s program and
would be released in a few days. Ms. Benna further testified that
Mother . . . would continue care through a dual counseling
intensive outpatient program at Alternative Community Resource
Program (“ACRP”). Mother’s appointment with ACRP had been
already made by Renewal. Mother’s progress was also found to
be substantial for these reasons. Mother’s lack of stable housing
was the only goal that she had not met at that point. Though,
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Mother was actively involved in Cove Forge’s Renewal program,
she was working full-time at a call center. . . .
Mother was successfully discharged from her half-way house at
the Renewal Center on December 14, 2018. At that point, Mother
moved into an apartment that she found and paid for herself.
Mother spoke with [the Agency] on numerous occasions, stating
that she would be staying in Johnstown area because she had
developed a positive support network there. Following her
discharge from Renewal, Mother was granted overnight weekend
visits with the Child. Transportation of the Child, drug testing and
monitoring of the visits was provided by SOS [(Specialty Outreach
Services)]. According to SOS, Mother continually tested
“negative” and visits with the Child went well.
Clearly, Mother returned to her cycle of struggle following her
discharge from the highly structured and supportive environment
of the half-way house, though she remained drug-free. Mother
asserts that she had significant difficulty finding another program
in Johnstown to continue her mental health treatment and drug
and alcohol treatment following her release. Mother claims to
have called multiple facilities without much success. According to
Mother, the facilities all failed to return her calls. Mother
specifically stated that she had made numerous phone calls to get
into Twin Lakes, but had much difficulty getting a hold of them.
She testified that she also relied on friends to call for her. Mother
related that a friend finally drove . . . her to Twin Lakes on
December 27, 2018, because she could not get a hold of the
facility via phone. The [c]ourt finds Mother’s testimony
concerning her alleged difficulty continuing care following
discharge from Renewal not credible. Ms. Benna testified at the
previous Permanency Review Hearing that Mother’s continuing
care was arranged and scheduled at ACRP prior to her discharge
from Renewal, Mother simply did not follow through, which is
consistent with her pattern of behavior when she is not residing
in a high structured and supportive environment.
Mother alleges that she completed an intake at Twin Lakes
December 27, 2018. Twin Lakes recommended that she attend
their recovery group, but it met during her work hours. Again,
Mother provided no documentation concerning this intake to the
Agency not the [c]ourt. The [Agency] counselor reached out to
Renewal to see what is available as he was not familiar with
Cambria County. He also called Twin Lakes, looking for
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alternatives but did not receive a return call. Renewal was going
to compile some options, but [the Agency] never received a list.
Mother claims that she was then laid off from her call center job
in January of 2019. However, she never provided any
documentation of her employment or subsequent termination of
employment. At the time, she was not in any active treatment for
drugs and alcohol. Despite claiming that she could not attend
Twin Lake’s recovery group due to a conflict with her work
schedule, Mother chose not to begin any treatment during the
three months that she was unemployed.
A Permanency Review Hearing was scheduled for February 15,
2019. However, by consent of all parties, the hearing was
continued to May 10, 2019. On March 1, 2019, the Agency filed
a Petition for the Involuntary Termination of Parental Rights of
[Mother. The trial court appointed Ronald N. Thomas, Esq., Child’s
dependency guardian ad litem (GAL), to represent Child at the
termination hearing. The clerk of the court issued a notice to
Mother regarding the petition to terminate and the scheduling of
a hearing for June 26, 2019. The notice advised Mother that she
had a right to counsel if she could not afford one. Neither the
record nor the docket contains a petition by Mother seeking
appointed counsel for the purpose of the termination hearing.]
Following the filing of the Petition, Mother contacted her [Agency]
caseworker on March 21, 2019, claiming to have finally started
mental health treatment at ACRP. She claimed to have completed
an intake and met with a counselor by the name of Tessa at ACRP,
but had not started treatment. However, she failed to provide any
treatment records or sign a release. When [the Agency] called
ACRP with whom Mother claimed to be treating, the voice mail
system did not include any employee by the name of Tessa.
Despite leaving messages on two different occasions, [the
Agency] was unsuccessful in making contact with anyone at ACRP
to confirm Mother’s claims of treatment.
Mother also claimed to have begun a part-time posit[i]on with
Giant Eagle. While her hours varied, she stated that she did not
work weekends while she had overnight visitations with [Child].
Mother was unaware of any specific dates of her employment.
Moreover, Mother has never provided documentation of her
employment to the Agency.
On April 5, 2019, an incident occurred where Mother contacted
SOS, the entity providing transportation of [Child] and case
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management in Cambria County, and indicated that she was not
available when [Child] was to be dropped off for her weekend
visits. Mother asserts that asked SOS to transfer custody to a
friend. SOS contacted the Agency stating that Mother wanted
[Child] to be given to her “boyfriend.” The Agency stated that this
was not acceptable as [the Agency] w[as] completely unaware of
who[] this person was. Mother’s casework then testified that he
received a follow up call from SOS stating that the issue had been
resolved, with no further information. The SOS represent[ative],
and Mother testified that she believed, that [the Agency] had
stated that SOS could release [Child] to a female caregiver of
Mother’s choosing, with no additional clearances or information
needed, so long as the Caregiver provided identification to SOS.
The court specifically found this testimony lacked credibility.
Despite knowing that she needed to provide drug testing, she did
not believe this would be necessary of her caregiver despite the
fact that the caregiver was also in recovery. Mother does not
dispute that she never informed the Agency that she would be
working during [Child’s] visit, despite speaking with her
caseworker regularly.
On May 10, 2019, the final Permanency Review Hearing was held.
Mother testified during that hearing that she was working two
jobs. She had recently secured a new full-time job at a call center
and was still working at Giant Eagle on the weekends. Again, she
failed to provide any documentation. Consequently, she claimed
to be working during her overnight visitation with [Child].
However, Mother did not inform the Agency that she would be
working, nor did she inform the Agency who would be caring for
the Child during this time. The caregiver(s) chosen by Mother was
not known to nor cleared by the Agency. Furthermore, Mother
had failed to provide any documentation of any mental health or
drug and alcohol treatment since her discharge from Renewal.
Given the safety concerns following Mother’s decision to leave the
Child with a caregiver unknown to the Agency, Mother’s visitations
were reduced from overnights to weekly six-hour visits.
On June 10, 2019, Mother was, incarcerated for a violation of
house arrest. At no point prior to this day did Mother inform the
Agency of the charges pending against her or the fact that she
had pled guilty to the charges.[fn1] Mother violated the Mother
violated the terms [of her house arrest] by failing to communicate
with the Cambria County Probation office on numerous occasions.
According to Mother, it was again someone else’s fault. This time
it was the Cambria County Office of Probation and Parole that
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failed to return her phone calls. It is important to note that despite
being in contact with the Agency, SOS, and the [c]ourt [in the
instant matter], she did not seek assistance in attempting to
contact her Parole officer.
[fn1] Mother’s current incarceration arose from a guilty plea
in August of 2018, arising out of . . . separate [driving under
the influence] charges in late 2017. Pursuant to that plea,
Mother was sentenced to 6 months of Intermediate[ ]
Punishment, which involved 42 days of house arrest
followed by restorative sanctions. According to her plea,
Mother had 30 days to arrange for her house arrest through
Cambria County. Mother failed to do so. Consequently, on
June 14, 2019, she was incarcerated in the Butler County
Jail with a sentence of 32 days to 1 year. She is expected
to be released on July 15, 2019, with the remainder of her
sentence to be served through parole.
Trial Ct. Findings of Fact, Op., & Order, 6/26/19, at 1-12.
The trial court held a hearing on the termination of parental rights and
goal change petition on June 26, 2019. At the beginning of the hearing,
Counsel requested a continuance noting that the trial court had not formally
appointed her as Mother’s termination of parental rights counsel and that
Mother was currently incarcerated. N.T., 6/26/19, at 12. Following a
discussion with the trial court, Counsel represented, that she was prepared
and asked to court to appoint her as Mother’s counsel for the termination
hearing. Id. at 13.
The Agency presented the testimony of (1) Mother’s probation officer,
Gregory Bowers, (2) Agency caseworkers, Tanya Montgomery, Serena
Johnston, and Matthew Duncan, (3) Agency casework supervisors, Rochelle
Graham and Nicole Burdett, and (4) Maggie Lynn Kerry, who provided child
preparation services at Family Pathways, (5) Patricia Duare, a supervisor with
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the Bair Foundation, and (6) a psychologist, Bruce Chambers, Ph.D. Mother
testified on her own behalf and presented the testimony of Brenda Alter from
SOS. Attorney Thomas, Child’s GAL, represented Child at the termination
hearing.
By order dated June 26, 2019, and docketed September 12, 2019, the
court changed Child’s permanency goal from reunification to adoption. Mother
timely filed the appeal at 1544 WDA 2019 and statement of concise errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Counsel originally filed a petition to withdraw and Anders/Santiago
brief in each appeal. This Court denied the petitions to withdraw finding that
Counsel’s letters to Mother were confusing as to when Mother could respond
pro se or with new counsel to Counsel’s request to withdraw. In re L.B., 1239
& 1544 WDA 2019, at 6-7 (Pa. Super. filed May 11, 2020) (unpublished
mem.). We further noted that Counsel’s Anders/Santiago briefs lacked
discussion of possible issues regarding the Agency’s exercise of reasonable
efforts with respect to the goal change. Id. at 11. This Court struck the
original Anders/Santiago briefs and remanded to the trial for Counsel to file
advocates’ briefs or new petitions to withdraw along with proper
Anders/Santiago briefs. Counsel has filed a new petition to withdraw and a
new Anders/Santiago brief. Mother has not responded.
In her present Anders/Santiago brief, Counsel notes that upon
Mother’s request, she filed a notice of appeal and a concise statement of errors
complained of on appeal. Anders/Santiago Brief, 1544 WDA 2019, at 10.
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Counsel summarizes her issues from her Rule 1925(b) statement, which we
have reordered as follows:
(1) Failure to Timely Appoint Counsel in Violation of Appellant’s
Due Process Rights;
(2) Failure to Meet Burden of Proof under 23 Pa.C.S.[] § 2511(a);
(3) Cursory and Unsupported Analysis under 23 Pa.C.S.[] §
2511(b).
(4) Failure to Make Findings of Fact as to the Nature and Strength
of the Bond and Relationship of the Child with the Parents or
Guardians; [and]
(5) Failure of the [GAL] to Fully and Faithfully Investigate;
(6) Failure to Feasibly or Adequately Provide Appellant with
Services Necessary to Complete her Tasks and Objectives;
See id. Only the last issue arguably pertains to the goal change matter.
When faced with an Anders/Santiago brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw. See J.D.H., 171 A.3d at 905. As this Court has stated:
To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2)
furnish a copy of the [Anders] brief to the [appellant]; and
3) advise the [appellant] that he or she has the right to
retain private counsel or raise additional arguments that the
[appellant] deems worthy of the court’s attention.
With respect to the third requirement of Anders, that counsel
inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must “attach to their
petition to withdraw a copy of the letter sent to their client
advising him or her of their rights.”
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Id. at 907 (citations omitted). Additionally, counsel must file a brief that
meets the following requirements established by the Pennsylvania Supreme
Court in Santiago:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
In re Adoption of M.C.F., ___ A.3d ___, ___ 2020 PA Super 78, 2020 WL
1501293, *1 (Pa. Super. filed Mar. 30, 2020) (citation omitted).
“After an appellate court receives an Anders brief and is satisfied that
counsel has complied with the aforementioned requirements, the Court then
must undertake an independent examination of the record to determine
whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d 1235, 1237
(Pa. Super. 2004) (citation omitted). Our independent review is not limited
to the issues discussed by counsel, but extends to “additional, non-frivolous
issues” that may have been overlooked by counsel. J.D.H., 171 A.3d at 908(citation omitted). An appeal is frivolous when it lacks any basis in law or
fact. See M.C.F., 2020 WL 1501293, at *2; accord Santiago, 978 A.2d at
355.
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Here, Counsel has complied with the Anders/Santiago procedures by
filing a petition to withdraw and supplying Mother with a copy of the
Anders/Santiago brief and a letter explaining Mother’s appellate rights. Ex.
A to Counsel’s Mots. to Withdraw, 6/29/20, at 1 (informing Mother “[y]ou have
the right to retain new counsel, proceed pro se or raise any additional points
that you deem worthy of the court’s attention. Should you decide to proceed,
you must do so quickly”). Moreover, Counsel’s brief includes a summary of
the relevant factual and procedural history, and Counsel explains her
conclusions that the issues preserved in her Rule 1925(b) statement lack
merit. Because Counsel has complied with the threshold requirements to
withdraw, we proceed to an independent review of whether the issues raised
lack merit. See S.M.B., 856 A.2d at 1237-38.
As noted above, this Court previously flagged an issue as the Agency’s
reasonable efforts when seeking a goal change. In re L.B., 1239 & 1544 WDA
2019, at 6-7 (Pa. Super. filed May 11, 2020) (unpublished mem.). Counsel
listed an issue that the Agency failed to feasibly or adequately provide Mother
with services necessary to complete her tasks and objectives.
Anders/Santiago Brief at 10. Counsel states this issue lacked merit because:
It is clear that [the Agency] provided services to Mother to address
her mental health, addiction and housing. [The Agency] provided
services through Cove Forge and subsequently Gaiser to help
Mother address her addiction. Further, [the Agency] provided
Mother the opportunity to address her mental health through the
Care Center in Butler County. However, Mother decided to go to
Cove Forge in Indiana County. Upon her successful discharge
from that facility, she decided to move to an apartment in
Johnstown, Pennsylvania, despite her case remaining open in
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Butler County. [The Agency] provided transportation for [Child]
to Johnstown to visit with Mother. Upon Mother’s discharge from
Cove Forge, she was to enter into follow up treatment with [ACRP]
in Johnstown, Pennsylvania, which [the Agency] approved.
However, upon her discharge, Mother did not follow through with
the treatment with [ACRP] nor did she request any additional
services from [the Agency] to assist her with her treatment.
Anders/Santiago Brief at 16-17.
Additionally, Counsel discusses the goal change to adoption noting that
Mother has found suitable housing and has maintained her
sobriety. However, testimony revealed that Mother was not
addressing her mental health. Mother never requested assistance
from [the Agency] to obtain her mental health treatment, help in
scheduling any mental health appointments or assessments, nor
did Mother request any additional services to help address her
mental health. The trial court determined that [the Agency] met
their burden in the goal change proceeding and ordered that the
goal in this case be changed from reunification to adoption.
Id. at 15.
With regard to dependency cases:
[t]he standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015) (citations omitted). Thus,
we employ an abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174
(Pa. 2015).
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Regarding the disposition of dependent children, the Juvenile Act, 42
Pa.C.S. §§ 6351(e)-(g), provides the criteria for a permanency plan. The
court must determine a disposition best suited to the safety and protection of
a child, as well as the child’s physical, mental, and moral welfare. See 42
Pa.C.S. § 6351(g). When faced with a goal change petition, the trial court
considers
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In Interest of A.N.P., 155 A.3d 55, 67 (Pa. Super. 2017) (quoting In re
A.K., 936 A.2d 528, 533 (Pa. Super. 2007)).
We have further noted:
[w]hen a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on what
the parent wants or which goals the parent has achieved.
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. § 6301(b)(1.1). Indeed, the 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 K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some citations omitted
and some formatting altered).
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Additionally, 42 Pa.C.S. § 6351(f)(9) provides, among several other
factors that the court considers at a permanency hearing:
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 . . .
See 42 Pa.C.S. § 6351(f)(9). The Pennsylvania Supreme Court has reiterated
that
[subsection] (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.” 42 Pa.C.S. § 6351 (g).
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). A trial court is not required to
itemize its findings, so long as it considers the various factors of § 6351(f),
concludes that reunification is not the appropriate placement goal, and
provides reasons for its conclusion that are supported by the record. Id.
Finally, courts must conduct regular permanency hearings to review the
permanency plan of the child. 42 Pa.C.S. § 6351(e)(1). At each permanency
hearing, the trial court must determine “[w]hether reasonable efforts were
made to finalize the permanency plan in effect.” 42 Pa.C.S. § 6351(f)(5.1).
Our Court has observed
neither federal nor Pennsylvania law defines “reasonable efforts.”
Pennsylvania Court’s Office of Child and Families in the Courts,
Pennsylvania Dependency Benchbook, § 19.9.1, at 19–33 (2014).
Notwithstanding the lack of a legal definition, we discern the
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following from prior cases. Because the focus of the Juvenile Act
is on the dependent child, as opposed to parents, any services for
parents must directly promote the best interests of the child. In
re J.R., 875 A.2d at 1118. “By requiring only ‘reasonable efforts’
to reunify a family, the statute recognizes that there are practical
limitations to such efforts.” Id. at 1118, n. 5 (citing 4[2] Pa.C.S.
§§ 6351(e) & (f)). “It is not sufficient for the court to find simply
that an action will promote family reunification; the court must
also determine whether the action constitutes a reasonable effort
towards reunification.” Id. (emphasis in original). This Court has
stressed that the agency is not expected to do the impossible and
is not a “guarantor of the success of the efforts to help parents
assume their parental duties.” In re A.L.D., 797 A.2d 326, 340
(Pa. Super. 2002) (citing In re J.W., 396 Pa.Super. 379, 578 A.2d
952, 959 (1990)).
In Interest of C.K., 165 A.3d 935, 941–42 (Pa. Super. 2017) (footnotes
omitted).
The trial court here found
Mother began services in September, 2017. Mother received a
drug and alcohol assessment at the Gaiser Center in Butler
County. A recommendation for treatment was issued. Mother
completed a mental health assessment at Family Pathways in
Butler, the result of which recommended treatment. At this time,
Mother resided in Pittsburgh in Allegheny County. Mother
requested that her drug and alcohol treatment be moved from the
Gaiser Center, and ultimately, at her choice, Mother entered an
inpatient drug and alcohol treatment program at Cove Forge in
October, 2017.
Mother completed her program at Cove Forge, and upon her
discharge, Mother returned to Butler County to live with her
parents. She, then, entered an intensive outpatient treatment
program at the Gaiser Center and began mental health treatment
at the Care Center, both of which are in Butler County. Mother
completed the intensive outpatient treatment and began Vititrol
treatments.
Around the end of February, 2018, Mother relapsed and was
discharged from both the Gaiser Center and the Care Center for
noncompliance. At this time, Mother failed to maintain contact
with [the Agency]. Without prior communication or notice to [the
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Agency], Mother left Butler County and enrolled in Cove Forge
once again. She successfully completed that program, where
Mother was treated for both drug and alcohol and mental health
issues. Mother was released from the program at Cove Forge into
the Renewal Center. Mother remained at the Renewal Center until
December, 2018.
At no time, from September, 2017 until December, 2019, did
Mother request [the Agency] provide additional services. In fact,
Mother represented to the Court at the numerous hearings that
the services provided to her were helpful and producing positive
results. [The Agency] communicated with Mother’s counselor at
the Renewal Center who advised both [the Agency] and the Court
that upon her discharge Mother was to enter a program through
[ACRP] in Johnstown, PA. However, Mother did not timely enter
the program through ACRP. While Mother communicated regularly
with [the Agency], she did not request their help to find additional
services. Mother was not credible as to the steps she took to enter
a new program to prevent relapse. On March 21, 2019, twenty
days after [the Agency] filed the instant Petition, Mother informed
[the Agency] that she entered a program at ACRP.
Mother was without drug and alcohol and mental health treatment
for only three months. During those three months, [the Agency]
made reasonable efforts to provide Mother with reasonable
services. However, the Butler County [the Agency] is limited
when helping a parent find services out of county. The caseworker
made phone calls and talked to service providers in Cambria
County. Mother did not want to return to Butler County where
appropriate services were available.
Additionally, by Mother’s own testimony, she could have attended
the Twin Lakes program once she was unemployed, but she did
not. The reality is that anytime Mother is not in a structured
setting, she fails to remain complaint with services and returns to
periods of instability characterized by drug and alcohol use,
problems with her mental health, unemployment, and
homelessness. This was true when she left her mother’s home in
February of 2018 and when she was discharged from the Renewal
Center in December of 2018. The only time Mother was not in
appropriate services was when she relapsed in early 2018 and the
first three months of 2019. She was in the services of her choice
for at least twelve of the fifteen months that [Child] was in care.
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Children and Youth Services provided not only reasonable services
for Mother, but exceptional support. It is disingenuous that
Mother would now assert that [the Agency] failed to provide
adequate services and therefore “set Mother up for failure” as
averred in this statement of error. Mother’s inability to participate
in services was a consequence of her own decisions, within her
control or not, as she avers in this statement of errors. In reality,
and unfortunately, Mother’s stability is fragile when she is not
living in a structured environment with consistent accountability.
Trial Ct. Op. at 16-18.3
In the instant case, we find that the record supports the trial court’s
conclusion regarding the Agency’s reasonable efforts. There was a continuing
necessity for Child’s placement, specifically, Mother’s failure to address her
mental health. For the duration of the matter, Mother had succeeded in
meeting her goals when in a highly structured environment, but she was
unable to maintain stability when outside such environments. The placement
was appropriate and feasible, as Child was thriving and happy in her
preadoptive resource. There are practical limitations to the reasonable efforts
required, and here, the record supports the trial court’s conclusions that
Mother did not request the Agency’s assistance in setting up the appropriate
treatment. As this Court has stated, agencies are not expected to do the
impossible. See C.K., 165 A.3d at 941–42.
____________________________________________
3 We note that the trial court also suggested that Mother failed to object to
the reasonable efforts made by the Agency. Although Mother did not
expressly object, she presented evidence that she had difficulty contacting
various providers in Cambria County. Moreover, there was testimony that the
Agency had difficulty contacting providers in Cambria County as well.
Therefore, we decline to find this issue waived.
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Furthermore, we agree with Counsel’s assessment that Child’s best
interests were served by adoption. See A.N.P., 155 A.3d at 67. Ms. Burdett,
one of Mother’s casework supervisors, observed Child interacting with her
Kinship Placement Family. N.T. at 121. Child seemed comfortable with her
foster parents and sought them out for her needs. Id. at 122. Child has not
visited with Mother since Mother’s incarceration in June 2019. Id. at 128.
Mr. Duncan, Mother’s current caseworker, testified that Child is
receiving services solely for child preparation. Id. at 139. She is up to date
medically and physically. Id. Child is doing well in school and involved in
gymnastics and other activities with the Kinship Placement Family and their
biological children. Id. at 140. Child seeks out her foster mother for her
needs and for comfort and affection. Id. Child is very bonded with her foster
siblings. Id. at 140-41.
Dr. Chambers testified that, in his observations, Mother’s interactions
with Child were appropriate and affectionate. Id. at 173. Dr. Chambers
stated that Mother did have a bond with Child, but, as noted above, her history
of mental health and drug and alcohol issues compromised her ability to
parent. Id. at 177.
Dr. Chambers also conducted a bonding and psychological evaluation of
the Kinship Placement Family. Id. at 180. Both foster parents were stable
and presented no psychological issues or parental deficits. Id. at 180-81.
Child was very comfortable interacting with them and had done extremely well
in their care. Id. Dr. Chambers observed an appropriate bond between Child
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and foster parents. Id. Child’s foster parents were responsive to her, and
there was reciprocal affection between them. Id. at 181. Kinship Placement
Family reported that Child had been integrated well into their family. Id. Dr.
Chambers had no concerns or reservations about Child being adopted by her
Kinship Placement Family. Id. at 182. He did not believe that Child would
suffer irreparable harm from the termination of Mother’s parental rights,
particularly if Kinship Placement Family were open to continued contact. Id.
at 197.
Ms. Kerry testified that she participated in providing child preparation
services for Child. Id. at 91-92. These services are designed to assist children
who have been placed in care to talk about their lives and adjust to the
changes that have occurred. Id. Ms. Kerry assisted in designing a Life Book
for Child to provide an age-appropriate narrative as to why Child was placed
in care. Id. at 92. Ms. Kerry met with Child twice a month. Id. at 93. Ms.
Kerry testified that Child is confused about her situation, because she was
aware that she had been close to returning to Mother’s care, but ultimately
was not reunified. Id. at 94. After Mother’s visits were decreased, Child did
not appear distressed by this, although she had previously wanted to return
to Mother’s home. Id.Based on this record, we agree with Counsel’s assessment that a
challenge to the goal change was frivolous. Therefore, we affirm the order
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changing the goal to adoption in the appeal and grant Counsel’s petition in
this appeal only.4
Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2021
____________________________________________
4 We note that the Pennsylvania Supreme Court’s conclusion that an issue
regarding a GAL’s representation of a child’s legal and best interests rested on
an interpretation of Section 2313(a), which applies to termination of parental
rights hearing. See In re T.S., 192 A.3d 1080, 1092 (Pa. 2018). Unlike
termination of parental proceedings, our courts have not recognized a basis
to excuse Mother’s failure to object to possible conflicts in the GAL’s
representation of Child’s legal and best interests in a dependency proceeding.
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