In the Interest of: M.R., Appeal of: H.S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.S., MOTHER : No. 308 WDA 2021
Appeal from the Order Entered February 4, 2021
In the Court of Common Pleas of Erie County
Juvenile Division at No(s): CP-25-DP-0000228-2019
IN THE INTEREST OF: P.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: H.S., MOTHER : No. 309 WDA 2021
Appeal from the Order Entered February 4, 2021
In the Court of Common Pleas of Erie County
Juvenile Division at No(s): CP-25-DP-0000144-2020
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: SEPTEMBER 16, 2021
Appellant, H.S. (“Mother”), appeals from the orders entered in the Erie
County Court of Common Pleas, which changed the permanency goals for M.R.
and P.R. (“Children”) from reunification to adoption, following the motion of
the Erie County Office of Children and Youth (“OCY”) to change the
permanency goal. We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
M.R. came into the care of [OCY] by emergency protective
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* Former Justice specially assigned to the Superior Court.
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order dated December 10, 2019, based on allegations
related to parental substance abuse. A shelter care hearing
was held on December 12, 2019. Mother did not appear at
the hearing; Father appeared and stipulated to continuation
of shelter care pending the adjudication hearing.
A dependency petition was filed December 13, 2019….
* * *
An adjudication and disposition hearing was held before the
juvenile court hearing officer on December 19, 2019. Both
parents were present, though Mother arrived late. Father
was represented by counsel. The hearing officer found in
favor of adjudication. The hearing officer’s recommendation
was adopted by court order dated January 8, 2020. By
virtue of that order, Mother’s dispositional permanency plan
required her to:
1. Refrain from the use of drugs and alcohol and
participate in random urinalysis testing at the Esper
Treatment Center as requested by the agency. If a
positive urine screen is received, [Mother] will be
referred to the random urinalysis color code program
through Esper Treatment Center;
2. Participate in a drug and alcohol assessment
and follow through with any recommendations;
3. Participate in a mental health evaluation and
follow through with any recommendations;
4. Obtain and/or maintain safe and stable housing
and provide the agency with a signed lease to show
that she is able to provide stability for [M.R.];
5. Obtain and/or maintain gainful employment and
provide the Agency with documentation that she is
employed and receives an income;
6. Participate in a parenting education program
and demonstrate the ability to provide for [M.R.’s]
needs during visitation;
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7. Demonstrate the ability to provide for the safety
and well-being of the child to include attending
medical, dental, and other needed appointments; and
8. Sign any and all releases requested by the
Agency.
Mother’s treatment plan was revised a few weeks later to
require participation in family dependency drug treatment
court.
For the first two review periods (January—May 2020),
Mother demonstrated moderate compliance with her
permanency plan, except she continued to test positive for
marijuana, and on one occasion in January 2020, tested
positive for amphetamine/methamphetamine. She
underwent the requisite drug and alcohol and mental health
assessments and was admitted to family dependency drug
court. Her permanency plans were updated accordingly.
Drug testing was unavailable during the second review
period due to [the] Covid-19-related shutdown of the Esper
Medical Center testing facility. When Mother was tested on
two occasions in May and June of 2020, she tested positive
for marijuana.
Urinalysis drug testing resumed during the third review
period (July—October 2020), but Mother failed to attend
screenings after mid-September 2020. When she last
appeared for testing, she tested positive for amphetamines,
methamphetamines, and marijuana on September 8, 2020,
positive-failure to produce on September 9, 2020, and
negative on September 10, 2020. She has not submitted to
testing since September 10, 2020. Visitation with M.R. was
contingent on clean urines, therefore, Mother had no visits
with M.R. during the third and fourth review periods.
Mother was discharged from family dependency treatment
court by order … dated October 1, 2020, for “consistent
failure to attend court, failure to submit to drug testing and
non-compliance with treatment recommendations.”
Criminal docket searches during the third and fourth review
periods revealed that Mother was charged with possession
of drug paraphernalia in August of 2020 and pled guilty to
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the charge in December of 2020.
Mother gave birth to P.R. on October 18, 2020. The child
was taken into protective custody from the hospital based
on Mother’s ongoing substance abuse and the child’s
purportedly having tested positive for amphetamines and
opiates at birth.
After the third permanency review hearing on November 2,
2020, the court found there had been no compliance with
the permanency plan, and no progress toward alleviating
the circumstances that led to [the] original placement, and
granted OCY’s motion to change the permanency goal for
M.R. from reunification to reunification concurrent with
adoption. An adjudication and dispositional hearing for P.R.
was also held on November 2, 2020. P.R. was placed in the
same kinship home as M.R. and assigned the same
concurrent permanency goals.
OCY moved to change the permanency goal to adoption
after the fourth permanency review period, in January of
2021, alleging parents’ noncompliance with their
permanency plans. The motion was heard at the time of the
fourth permanency review hearing on February 1, 2021.
Both parents appeared at the hearing by telephone and
were represented by counsel.
(Trial Court Opinion, filed April 1, 2021, at 1-5) (internal footnotes and record
citations omitted).
In separate orders entered February 4, 2021, the court changed
Children’s permanency goals to adoption. Mother timely filed separate notices
of appeal and concise statements of errors on March 4, 2021. On April 30,
2021, this Court consolidated the appeals sua sponte.1
Mother now raises one issue for our review:
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1 Father is not a party on appeal.
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Whether the juvenile court committed an abuse of discretion
and/or error of law when it determined that the concurrent
permanency goal of reunification was no longer feasible and
changed the goal to adoption?
(Mother’s Brief at 3).
On appeal, Mother argues that she “was participating in services and
working towards alleviating the circumstances that led to the placement of the
minor children.” (Id. at 11). Mother argues that she actually succeeded in
finding help outside of the court-ordered services required by her permanency
plan. Mother insists, however, that she did not have enough time to work
through the plan and achieve reunification with Children due to the COVID-19
pandemic. Mother concludes that “the record failed to support a conclusion
that it was in the best interest of the minor children to change the goal to
adoption.” (Id. at 9). We disagree.
On appeal, goal change decisions are subject to an abuse of discretion
standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).
In order to conclude that the trial court abused its discretion,
we must determine that the court’s judgment was
“manifestly unreasonable,” that the court did not apply the
law, or that the court’s action was “a result of partiality,
prejudice, bias or ill will,” as shown by the record. We are
bound by the trial court’s findings of fact that have support
in the record. The trial court, not the appellate court, is
charged with the responsibilities of evaluating credibility of
the witness and resolving any conflicts in the testimony. In
carrying out these responsibilities, the trial court is free to
believe all, part, or none of the evidence. When the trial
court’s findings are supported by competent evidence of
record, we will affirm, “even if the record could also support
an opposite result.”
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Id. at 822–23 (internal citations omitted).
The Juvenile Act controls the disposition of dependent children. In re
R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008). Section 6351 provides in
relevant part:
§ 6351. Disposition of dependent child
* * *
(f) Matters to be determined at permanency
hearing.—At each permanency hearing, a court shall
determine all of the following:
(1) The continuing necessity for and
appropriateness of the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for
the child.
(3) The extent of progress made toward alleviating
the circumstances which necessitated the original
placement.
(4) The appropriateness and feasibility of the
current placement goal for the child.
(5) The likely date by which the placement goal for
the child might be achieved.
(5.1) Whether reasonable efforts were made to
finalize the permanency plan in effect.
(6) Whether the child is safe.
* * *
(10) If a sibling of a child has been removed from his
home and is in a different placement setting than the
child, whether reasonable efforts have been made to
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place the child and the sibling of the child together or
whether such joint placement is contrary to the safety
or well-being of the child or sibling.
(11) If the child has a sibling, whether visitation of
the child with that sibling is occurring no less than
twice a month, unless a finding is made that visitation
is contrary to the safety or well-being of the child or
sibling.
* * *
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all
relevant evidence presented at the hearing, the court
shall determine one of the following:
(1) If and when the child will be returned to the
child’s parent, guardian or custodian in cases where
the return of the child is best suited to the safety,
protection and physical, mental and moral welfare of
the child.
(2) If and when the child will be placed for adoption,
and the county agency will file for termination of
parental rights in cases where return to the child’s
parent, guardian or custodian is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
(3) If 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.
(4) If and when the child will be placed with a fit and
willing relative in cases where return to the child’s
parent, guardian or custodian, being placed for
adoption or being placed with a legal custodian is not
best suited to the safety, protection and physical,
mental and moral welfare of the child.
* * *
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(f.2) Evidence.—Evidence of conduct by the parent that
places the health, safety or welfare of the child at risk,
including evidence of the use of alcohol or a controlled
substance that places the health, safety or welfare of the
child at risk, shall be presented to the court by the county
agency or any other party at any disposition or
permanency hearing whether or not the conduct was the
basis for the determination of dependency.
(g) Court order.—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.
42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).
“When the child welfare agency has made reasonable efforts to return a
[dependent] child to his or her biological parent, but those efforts have failed,
then the agency must redirect its efforts towards placing the child in an
adoptive home.” In re N.C., supra at 823.
Although the agency has the burden to show a goal change
would serve the child’s best interests, “[s]afety,
permanency, and well-being of the child must take
precedence over all other considerations” under Section
6351. In re D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009),
appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009)
(emphasis in original); In re S.B., … 943 A.2d 973, 978
[(Pa.Super. 2008)], appeal denied, 598 Pa. 782, 959 A.2d
320 (2008). “[T]he parent’s rights are secondary” in a goal
change proceeding. In re D.P., supra.Because the focus is on the child’s best interests, a goal
change to adoption might be appropriate, even when a
parent substantially complies with a reunification plan. In
re N.C., supra at 826-27. Where a parent’s “skills,
including her judgment with regard to the emotional well-
being of her children, remain problematic[,]” a goal change
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to adoption might be appropriate, regardless of the parent’s
compliance with a permanency plan. Id. at 825. The
agency is not required to offer services indefinitely, where a
parent is unable to properly apply the instruction provided.
In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). See
also In re S.B., supra at 981 (giving priority to child’s
safety and stability, despite parent’s substantial compliance
with permanency plan); In re A.P., 728 A.2d 375, 379
(Pa.Super. 1999), appeal denied, 560 Pa. 693, 743 A.2d 912(1999) (holding where, despite willingness, parent cannot
meet “irreducible minimum parental responsibilities, the
needs of the child must prevail over the rights of the
parent”). Thus, even where the parent makes earnest
efforts, 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.” In re
Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).
In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010).
Instantly, the trial court determined that a goal change to adoption is
appropriate:
M.R. was twelve and a half months old when taken into
protective custody. By the time of the goal change hearing
thirteen and a half months later, [he] was twenty-six
months old. P.R. was taken into custody shortly after birth
and was three and a half months old at the time of the goal
change. Parental substance abuse remained the primary
circumstance necessitating placement for the entirety of the
dependency proceedings.
Regardless of Mother’s modest efforts to comply with the
permanency plan during the first two review periods, she
never demonstrated sustained abstinence from illicit
substances, including amphetamine, methamphetamine
and marijuana. She continued to test positive for one or
more substances through mid-September, 2020. She pled
guilty to possession of drug paraphernalia arising from an
incident on August 20, 2020.
* * *
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P.R. was born drug exposed in October, 2020. Thereafter,
Mother never appeared for another court-ordered drug test,
asserting without corroborating evidence or legal authority
that she was precluded from traveling to Erie for drug
testing due to Covid-19-related travel restrictions.
Secondary to ongoing substance abuse, Mother was never
able to achieve stable housing or employment. She was
living in Ohio when the Children were removed from Father’s
care in Girard, Pennsylvania, in December of 2019.
Thereafter she resided with Father at one or more locations
in west Erie County, before returning to Ohio with Father
sometime in September of 2020. She elected to remain in
Ohio ever since, despite her contention, albeit
unsubstantiated, that living in Ohio prevented her from
meeting the requirements necessary to see her Children.
Throughout this time, the Children have remained in kinship
placement with their paternal uncle and his wife, who have
met all of their needs and are identified as a permanent
placement resource. Due to M.R.’s young age at the time
of placement, and P.R.’s having never known Mother, and
due to the lack of visitation between Mother and Children
over the course of placement, it is reasonable to conclude
that no meaningful parent-child bond exists between
Children and Mother (or Father), and that it is in the
Children’s best interests to proceed with adoption. In short,
there is simply no reason to continue to put the Children’s
lives on hold, given the parents have made no progress
toward alleviating the circumstances that led to original
placement over the past thirteen and a half months….
(Trial Court Opinion at 7-9) (internal footnote and record citations omitted).
The record supports the court’s findings. The OCY caseworker testified
that “[t]here has pretty much been zero compliance” by Mother with her
treatment plan. (N.T. Permanency Hearing, 2/1/21, at 4). Regarding
employment, Mother confirmed that she was not working while “waiting for a
determination for disability.” (Id. at 16). Regarding housing, Mother
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indicated that she had moved out of a hotel and into the house of a friend in
Ohio. (See id.) Mother stated this living arrangement was temporary “until
we get our own place.” (Id. at 17).
Mother also testified about her failure to attend drug screenings,
blaming her noncompliance on the caseworker:
I have called [the caseworker] and told her multiple times if
she would work with Ashtabula County[, Ohio] for the drug
screens because [the Ohio health department] said there is
no way that we were allowed, not even with a court order,
to go across state lines, and I told her that.
(Id. at 14). Nevertheless, the court did not find this explanation credible, and
Mother did not offer any additional evidence to corroborate her self-serving
statements. (See Trial Court Opinion at 6). On this record, the court correctly
chose not to subordinate Children’s need for permanence and stability to
Mother’s requests for additional time to comply with her plan. See In re
R.M.G., supra; In re N.C., supra. Accordingly, we affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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