In the Interest of: R.R., a minor, Appeal of: S.F.

J-S40044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.F., NATURAL MOTHER No. 433 WDA 2015
Appeal from the Order entered February 12, 2015,
in the Court of Common Pleas of Erie County, Criminal
Division, at No(s): CP-25-DP-0000068-2014
IN THE INTEREST OF: J.A., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.F., NATURAL MOTHER No. 434 WDA 2015
Appeal from the Order entered February 12, 2015,
in the Court of Common Pleas of Erie County, Criminal
Division, at No(s): CP-25-DP-0000183-2014
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,∗ JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 31, 2015
S.F. (Mother) appeals from the order entered February 12, 2015, in
the Court of Common Pleas of Erie County, which changed the permanency
goal of her minor daughter, J.A., born in January of 2014, to adoption.1
Mother also appeals from a separate order entered that same day, which
∗
Retired Senior Judge assigned to the Superior Court.
1
J.A.’s father, F.A. (Father), also has appealed from the subject order. The
disposition of his appeal is by separate memorandum.
J-S40044-15
ended services and visitation with respect to her other minor daughter, R.R.,
born in December of 2004.2 After careful review, we affirm.
On October 11, 2012, Mother placed R.R. in the care of J.M., Mother’s
cousin. On April 29, 2014, J.M. contacted the Erie County Office of Children
and Youth (the Agency), and asked that R.R. be removed from her home.
R.R. was adjudicated dependent by order entered May 20, 2014. On
September 10, 2014, the Agency placed R.R. back in the care of Mother.
Less than a week later, on September 16, 2014, Mother took J.A. to
the hospital, where it was determined that J.A. had suffered a spiral fracture
to her arm. Mother provided several inconsistent explanations of how this
injury took place, none of which was medically acceptable. As a result of
these events, inter alia, R.R. and J.A. were placed in foster care.
On December 18, 2014, the Agency filed a petition for permanency
hearing, in which it recommended terminating the parental rights of Mother
involuntarily. A permanency hearing was held on February 6, 2015.
Following the hearing, on February 12, 2015, the court entered its order
changing J.A.’s permanency goal to adoption. The court also entered its
order ending Mother’s services and visitation with respect to R.R. Mother
2
The order ended services and visitation as to Mother, but provided that
services and visitation would be offered to R.R.’s father, J.G.-R., who
recently was released from incarceration in Philadelphia. J.G.-R. is not a
party to the instant appeal.
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timely filed notices of appeal, along with concise statements of errors
complained of on appeal.
Mother now raises the following issues for our review.
1. Did the juvenile court commit an abuse of discretion and/or
error of law when it determined that the concurrent placement
goal of reunification/adoption was no longer feasible, dispensed
with the concurrent placement goal of reunification after less
than four months [as to J.A.] and after less than nine months
[as to R.R.], and directed the Agency to provide no further
services and/or visitation to [Mother]?
2. Did the juvenile court commit an abuse of discretion and/or
error of law when it allowed and considered testimony over
objection, relating to an alleged incident on December 31st,
2014?
3. Did the juvenile court [commit a]n abuse of discretion and/or
error of law when it failed to inquire into the wishes of the child,
R.R.?
Mother’s Brief at 9 (trial court answers, suggested answers, and unnecessary
capitalization omitted)
We consider these issues mindful of the following.
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
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which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child
might be achieved; (6) the child’s safety; and (7) whether the
child has been in placement for at least fifteen of the last
twenty-two months. The best interests of the child, and not the
interests of the parent, must guide the trial court. 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 re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and
quotation marks omitted).
Mother’s first issue is that the juvenile court committed an abuse of
discretion and/or error of law by changing J.A.’s permanency goal to
adoption, and by ending Mother’s visitation and services with respect to R.R.
Mother’s Brief at 16. Mother argues that she has made “significant
progress” since J.A. and R.R. were removed from her care, in that she has
maintained stable housing, and has attended visits, doctor’s appointments,
urine screens, and parenting classes consistently. Id. at 17, 19-20. Mother
also contends that there was no credible evidence of domestic violence in
her home. Id. at 17-20.
In its opinion pursuant to Pa.R.A.P. 1925(a), the juvenile court
explained that it changed J.A.’s permanency goal to adoption and ended
Mother’s services and visitation with respect to R.R. because Mother and
Father have demonstrated that they will not, or cannot, remedy their
domestic violence issues to the extent that they can safely parent R.R. and
J.A. Juvenile Court Opinion, 3/31/2015, at 12, 17.
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We conclude that Mother is not entitled to relief on her first issue. A
review of the record reveals the following. During the February 6, 2015
permanency review hearing, Agency caseworker, Sharon Slubowski, testified
that Mother and Father have a history of domestic violence. N.T., 2/6/2015,
at 15. Ms. Slubowski noted that Father’s previous girlfriend filed for
Protection From Abuse (PFA) orders against him in 1996 and 2001. Id. at
17. Ms. Slubowski also discussed a more recent incident which took place in
December of 2013, while Mother was pregnant with J.A. Id. at 16. During
that incident, Father “got on top” of Mother and punched her in the face.
Id. As a result, Father was arrested and incarcerated for an unspecified
period of time. Id. at 15. Additionally, Mother filed for a PFA order against
Father in September of 2014. Id. at 16. Ms. Slubowski did not describe this
incident in detail, but stated that it involved “[m]uch the same thing…. If I
can’t have you nobody else will, that kind of thing.” Id. at 16-17. Finally,
Ms. Slubowski received allegations that Father had assaulted Mother on
December 31, 2014, but Ms. Slubowski was not able to corroborate this
information. Id. at 18. Despite these events, Ms. Slubowski believed that
Mother and Father continue to reside together “most of the time.” Id. at 14.
Ms. Slubowski further testified Mother and Father have been attending
domestic violence intervention programs, but that they have done so
inconsistently. Id. at 7, 21. At the time of the hearing, Mother was only
one absence away from having to repeat her entire program. Id. at 21, 41.
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Father no longer was permitted to attend his program, due to his prior bad
behaviors. Id. at 7-9. Ms. Slubowski specified that Father used “foul
language” during class, that he used his cellphone during class, and that
“they smelled alcohol on his breath a couple times.” Id. at 8. In order to
return to the program, Father would need to meet with the director of the
providing agency. Id. at 9.
Ms. Slubowski explained that Mother has attended 22 out of her 25
drug screens. Id. at 46. Mother has not tested positive for any substances,
other than her prescription methadone. Id. Ms. Slubowski noted that
Mother participates in parenting classes through Erie Family Center, but that
Mother has been “a little inconsistent.” Id. at 22. Ms. Slubowski later
stated that Mother has been “rather consistent” in attending parenting
classes. Id. at 52. Mother has attended all but two of J.A.’s doctor’s
appointments. Id. at 22-23, 51. Mother also attends her visits consistently,
but she has displayed parenting problems during the visits. Id. at 22, 53.
With respect to mental health, Ms. Slubowski stated that Mother was
ordered to “follow up with mental health at Stairways,” but that Mother
failed to attend all but one of her appointments, as of November 25, 2014.
Id. at 19-20, 39. Mother also was ordered to attend counseling at Safenet
starting in October of 2014. Id. at 21. Mother reported that she was going
to start counseling on January 7, 2015. Id.
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Accordingly, while Mother has attended visits, doctor’s appointments,
urine screens, and parenting classes, she has been slow to address her
mental health needs. More critically, the record demonstrates that Father
engages in violent and abusive behavior, and that Mother has maintained
her relationship with Father, despite the safety risk that Father poses to R.R.
and J.A. While Mother stresses that the report of domestic violence in
December of 2014 was uncorroborated and unreliable, this argument ignores
the fact that both Mother and Father have failed to attend their respective
domestic violence intervention programs consistently. This failure
demonstrates a continued lack of commitment toward remedying the
couple’s history of domestic violence, which has dragged on for years.
Based on this evidence, it was reasonable for the court to conclude that
J.A.’s permanency goal should be changed to adoption, and that Mother’s
services and visitation should be ended with respect to R.R. Accord In re
R.M.G., 997 A.2d 339, 354 (Pa. Super. 2010) (reversing denial of change of
goal from reunification to adoption based upon, inter alia, “Mother’s
tolerance of domestic violence that persisted in Mother’s relationship with
Father for several years”).
Mother’s next issue is that the juvenile court abused its discretion
and/or erred by allowing hearsay testimony relating to the alleged incident
of domestic violence between Mother and Father in December of 2014,
discussed above. Mother’s Brief at 20.
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…. [T]he decision to admit or exclude evidence lies within the
sound discretion of the trial court, and we may reverse only
upon a showing of abuse of discretion or error of law. An abuse
of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. In addition, [t]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007) (citations and
quotation marks omitted).
Here, the juvenile court indicated that it gave “some, though not
much, weight” to the alleged domestic violence incident. Juvenile Court
Opinion, 3/31/2015, at 9, 16. The court concluded that there was other
“substantial, overwhelming and credible evidence” of Mother and Father’s
history of domestic violence, as well as Mother’s failure to address this issue,
and that “[a]ny error in the admission of this evidence was therefore
harmless ….” Id. at 16.
We again conclude that Mother is not entitled to relief. At the start of
the permanency hearing, the juvenile court indicated that it had reviewed
the Agency’s court summary. N.T., 2/6/2015, at 2. The court then stated
that the summary would be admitted into evidence, and asked if there were
any objections. Id. Mother’s counsel did not object. Id. at 3. The
Agency’s court summary included a description of the alleged incident of
domestic violence. Court Summary, 1/23/2015, at 11. Thus, at the time
Mother’s counsel objected to the statements of Ms. Slubowski, evidence of
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the alleged incident already had been admitted into the record. Further, the
record supports the juvenile court’s determination that Mother and Father
have a long history of abuse before December 2014, and that Mother has
failed to address the issue through the services offered by the Agency. We
therefore agree with the juvenile court that any error in admitting Ms.
Slubowski’s statements was harmless. See, e.g., Blumer v. Ford Motor
Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (“In short, the content of the
inadmissible Reports was cumulative in nature to the admissible Reports
and, consequently, the evidentiary error was harmless.”).
Mother’s final issue is that the juvenile court committed an abuse of its
discretion and/or an error of law by ending her services and visitation with
R.R. without first inquiring into R.R.’s wishes. Mother directs our attention
to the following portions of the Juvenile Act.
(e) Permanency hearings.--
(1) … In any permanency hearing held with respect
to the child, the court shall consult with the child
regarding the child’s permanency plan in a manner
appropriate to the child’s age and maturity. If the
court does not consult personally with the child, the
court shall ensure that the views of the child
regarding the permanency plan have been
ascertained to the fullest extent possible and
communicated to the court by the guardian ad litem
under section 6311 (relating to guardian ad litem for
child in court proceedings) or, as appropriate to the
circumstances of the case by the child’s counsel, the
court-appointed special advocate or other person as
designated by the court.
42 Pa.C.S. § 6351(e).
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(b) Powers and duties.--The guardian ad litem shall be
charged with representation of the legal interests and the best
interests of the child at every stage of the proceedings and shall
do all of the following:
***
(9) Advise the court of the child’s wishes to the
extent that they can be ascertained and present to
the court whatever evidence exists to support the
child’s wishes. When appropriate because of the age
or mental and emotional condition of the child,
determine to the fullest extent possible the wishes of
the child and communicate this information to the
court. A difference between the child's wishes under
this paragraph and the recommendations under
paragraph (7) shall not be considered a conflict of
interest for the guardian ad litem.
42 Pa.C.S.A. § 6311(b)(9).
The juvenile court indicated that it was not required to consider R.R.’s
wishes because, inter alia, Mother was not R.R.’s caretaker for over two
years, and because Ms. Slubowski described the bond between Mother and
R.R. as unhealthy. Juvenile Court Opinion, 3/31/2015, at 17.
Pursuant to the above statutes the juvenile court should have made a
record of R.R.’s preference. However, we conclude that its failure to do so
does not warrant reversal in this case because the juvenile court acted
within its discretion in determining that reunification with Mother was
contrary to R.R.’s best interests, regardless of any wishes R.R. wishes may
have had to return to Mother.
The juvenile court was presented with the following description of
visits between Mother and R.R.:
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During the visits, it appears that [Mother] has difficulty dividing
her attention between the two children. Often, [R.R.] will play
alone while [Mother] interacts with [J.A.] On a few occasions,
[Ms. Slubowski] has overheard [R.R.] state that she wanted to
leave the visits well before they were scheduled to end. Other
times, [R.R.] and [Mother] were observed to be watching the
clock as if waiting for the visit to end. These visits were the two
hour visitations that were held on Saturdays to make up for the
[A]gency being closed over the holidays of Thanksgiving and
Christmas. It appears that both mother and child continue to
have difficulty with engagement after one hour. Separation after
visitation has consistently been easy for the family.
Providers for [R.R.] have noted an increase in acting out
behaviors both at home and at school following her interactions
with her mother. [Mother] is observed to make many promises
to [R.R.] that she is not able to fulfill. Examples would be the
promise that she would return home, receive new boots and
clothes, receive new jewelry, and receive an Ipod and a
computer tablet. Her mother even promised to purchase [R.R.]
a Halloween costume and when she did not follow through,
[R.R.] had a verbal and physical incident at the foster home
which resulted in her being grounded. [Mother] is not able to
follow through with her promises and has not followed advice
from providers that this is detrimental to [R.R.’s] emotional
well[-]being.
Court Summary, 1/23/2015, at 16.
As observed by the juvenile court, the bond between Mother and R.R.
is unhealthy. N.T., 2/6/2015, at 22, 53-54. Ms. Slubowski explained that,
during visits, Mother “spends a whole lot of time bringing up all of the things
that [R.R.] does bad instead of trying to build a relationship, build her self-
esteem, that kind of thing. [R.R.] tries to end the visits early. Sometimes
[Mother] tries to end visits early.” Id. Furthermore, and most critically,
Mother is unable to ensure R.R.’s safety, as we established in review of
Mother’s first issue above.
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Thus, even if the court had interviewed R.R., and R.R. had stated that
she wanted to be reunited with Mother, there was ample evidence presented
during the hearing that reunification would not be in R.R.’s best interest.
See, e.g., In re D.P., 972 A.2d 1221, 1232 (Pa. Super. 2009) (affirming
change of goal from reunification to adoption, despite the wishes of the
children to be with their mother, where returning the children to their
mother would be to their detriment).
Accordingly, because we conclude that none of Mother’s claims entitles
her to relief, we affirm the orders of the juvenile court.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
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