In The Interest of: C.M. and A.M., Minor Children

J-S79002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.M. AND A.M., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
:
:
APPEAL OF: M.P.M., FATHER : No. 1095 EDA 2016
Appeal from the Order March 3, 2016
In the Court of Common Pleas of Chester County
Orphans’ Court at No(s): CP-15-DP-0000052-2013;
CP-15-DP-0000053-2013
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 15, 2016
Appellant, M.P.M. (“Father”), appeals from the order entered in the
Chester County Court of Common Pleas Orphans’ Court, which granted the
goal change petition filed by the Chester County Department of Children,
Youth and Families (“CYF”), with respect to his minor children, C.M. and A.M.
(“Children”). We affirm.
The relevant facts and procedural history of this case are as follows.
Father and A.B. (“Mother”) are the parents of Children. After receiving
reports of poor living conditions and insufficient parental supervision with
respect to Children, CYF filed a dependency petition on June 14, 2013. The
court held a dependency hearing on July 8, 2013, and subsequently
adjudicated Children dependent. As a result, CYF placed Children in foster
care. The court held numerous permanency review hearings between July
2013 and March 2016, which Father often failed to attend due to his
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intermittent incarcerated status. At these hearings, the court regularly
determined that Father demonstrated minimal or no compliance with his
permanency plan. The court also frequently found that Father had made
minimal or no progress toward alleviating the circumstances that led to
placement. CYF often reported lack of contact with Father.
At a permanency review hearing on December 15, 2015, CYF asked
the court to change the permanency plan goal from reunification to
adoption. Father did not participate in the hearing due to a malfunction with
the video conference equipment. Nevertheless, the court changed the
permanency plan goal to adoption at the conclusion of the hearing. On
February 9, 2016, CYF filed a petition to terminate Mother’s and Father’s
parental rights to Children. The court held another permanency review
hearing on March 3, 2016, where Father asked the court to vacate its
December 15, 2015 goal change to adoption. The court granted Father’s
motion and revisited the goal change issue. After the presentation of
testimony by CYF and Father, the court again changed the permanency plan
goal from reunification to adoption. On April 1, 2016, Father timely filed a
pro se notice of appeal, which the court forwarded to counsel. Counsel filed
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) on April 13, 2016.1
1
See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (explaining in
Children’s Fast Track cases, appellant’s failure to file concise statement
contemporaneously with notice of appeal does not divest this Court of
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Father raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
CHANGED THE GOAL FROM REUNIFICATION TO ADOPTION
WHEN THE TESTIMONY/EVIDENCE PRESENTED TO THE
TRIAL COURT ON MARCH 3, 2016 DID NOT SUPPORT A
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT A
GOAL CHANGE WAS IN THE BEST INTERESTS OF THE
CHILDREN?
(Father’s Brief at 4).
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.
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
jurisdiction, but it results in defective notice of appeal to be disposed of on
case by case basis; general waiver analysis for failure to file court-ordered
Rule 1925(b) statement does not apply in context of noncompliance with
Rule 1925(a)(2)(i); allowing concise statement filed shortly after notice of
appeal where noncompliance with Rule 1925(a)(2)(i) caused no prejudice to
parties).
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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.
* * *
(9) If the child have 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, whether
the county agency has filed or sought to join a
petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to
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adopt the child unless:
(i) the child is being cared for by a relative
best suited to the physical, mental and moral
welfare of the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided
with necessary services to achieve the safe
return to the child’s parent, guardian or
custodian within the time frames set forth in
the permanency plan.
* * *
(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
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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.
* * *
(f.2) Evidence.—Evidence of conduct by the parent that
places the health, safety or welfare of the child at risk,
including evidence of 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, [1230] (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 [at 1227].
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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
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), appeal denied, 608 Pa.
648, 12 A.3d 372 (2010).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Ann Marie
Wheatcraft, we conclude Father’s issue on appeal merits no relief. The
Orphans’ court opinion fully discusses and properly disposes of the question
presented. (See Orphans’ Court Opinion, filed May 11, 2016, at 3-6)
(finding: Children have been in foster care for almost three years and
reunification has been goal for Children since 2013; during this time, neither
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Father nor Mother made any measurable progress toward reunification goal;
while Father has participated in drug, alcohol, and mental health
evaluations, his incarcerated status limits his participation in other services;
significantly, Father was immediately re-arrested and incarcerated after his
release from custody in 2015; instead of meaningfully participating with CYF
to reach reunification goal, Father chose to reoffend; court finds it unlikely
that Father will be able to maintain progress he made while incarcerated,
when he is ultimately released from custody; Father’s release date remains
uncertain, and Father’s incarceration impacts his ability to parent Children in
practical ways; importantly, Father’s ability to care for Children after release
from custody will not be immediate because Father will be released to
halfway house; additionally, Father will have to procure employment and
suitable housing before he will be available as resource for Children;
Children have already spent too much time in foster care, and evidence
presented at March 3, 2016 permanency review hearing demonstrated
reunification is not best suited to Children’s safety, protection, and physical,
mental, and moral welfare; Children’s best interest dictates no further
exposure to uncertainty of foster care placement in hopes that Father will
gain his freedom and be able to care for Children; thus, goal change to
adoption was appropriate). Accordingly, we affirm on the basis of the
Orphans’ court opinion.
Order affirmed.
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J-S79002-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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Circulated 11/01/2016 02:07 PM
IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
C.M.,
DOCKET NO: CP-15-DP-000052-2013
A MINOR
No. 1095 EDA 2016
IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
A.M.,
DOCKET NO: CP-15-DP-000053-2013
A MINOR
No. 1095 EDA 2016
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t<~. WBe,ATCRAFT MAY 2016
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1925(a) OPINION
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o t:;O M .P. M. ( 11 father 11) . ) is the biological father of \vi .
w :-:.::: ~~.. . .
o:: : and 1• Each child was adjudicated dependent
on July 8, 2013. Father filed an Appeal from the Orders entered on March 3, 2016
granting the Chester County Department of Children, Youth and Families' ("CYF")
request for a goal change from reunification to a new permanent placement goal,
adoption.
PROCEDURAL BACKGROUND
After two years before a hearing officer, this case was transferred from the
hearing officer to this Common Pleas Court Judge at the request of Father in August
2015. A Permanency Review Hearing took place before this jurist on September 17,
2015. Since that time, there have been two Permanency Review Hearings before this
Court, December 15, 2015 and March 3, 2016. Father was represented by new
1
Father is not A,M,'~"blological" father, but has accepted paternity of />,..\'II\,.
Page 1 of 6
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counsef at the March 3, 2016, John OiSantis, Esquire. On March 14, 2016, Father filed
this present Appeal pro se3.
These children have been involved with CYF continuously since this case was
opened on March 7, 2013. At that time, biological mother, ("Mother"),
had full custody of the children due to father's incarceration in February 2013. Prior to
Father's incarceration, Father had primary custody of the children and Mother had
limited visitation. (CYF Petition, 06/14/13).
In March 2013, Mother reported to CYF that prior to her taking full custody of the
children, Father was intoxicated and smoked weed while the children were in his care.
Upon further investigation, CYF determined that Mother was facing pending criminal
charges and had a possible outstanding warrant. Mother had also recently tested
positive for cocaine use. CYF immediately began to provide services to Mother and the
children, but the children continued to be in an unsafe environment due to Mother's
continuing illegal drug use and her inability to provide the supervision necessary for the
safety and welfare of her children. Id. On July 8, 2013, the children were adjudicated
dependent and placed in foster care.
2
Father had been previously represented by Ira D. Binder, Esquire. Upon Father's request,
new counsel was appointed February 23, 2016.
3
Pursuant to 210 Pa. Code§ 65.24, Father's Pro Se Appeal was filed and forwarded to
Father's attorney, Mr. DiSantis. Mr. DiSantis noted that Father did not file a Statement of
Matters Complained of on Appeal ("the Statement") with the Pro Se Appeal as required by the
Appellate Rules. Mr. DiSantis filed the Statement on Father's behalf on April 13, 2016. Father
filed a prose Statement on April 22, 2016. We shall consider the first Statement filed by Mr.
DiSantis as counsel of record for Father. (Commonwealth v. Ellis, 626 A.2d 1137 (Pa; 1993),
hybrid representation is not permitted on appeal.)). Moreover, Father has not objected to Mr.
DiSantis's representation.
Page 2 of 6
ERRORS ON APPEAL
Father presents four errors.4 For the purpose of legal analysis and discussion, we
construe Father's objection as follows:
1. The court abused its discretion in changing the goal for the children
from reunification to adoption when the evidence showed such a
determination was not in the best interests of the children and went
against the evidence presented, i.e.:
a. Father made progress and cooperated to the best of his ability with CYF
while incarcerated; and
b. Father was not afforded adequate services.
SCOPE OF REVIEW
This matter is governed by the Juvenile Act (42 Pa.C.S.A. §6301, et seq.). Th
Superior Court's scope of review is limited to an abuse of discretion standard. The
Superior Court is bound by the facts as found by this Court and the determination made
unless they are not supported in the record. In re A.P., 728 A.2d 375, 378 (Pa.Super.
1999); In the Interest of C.J.R., 782 A.2d 568, 569-70 (Pa.Super. 2001 ).
DISCUSSION
The . purpose of the Juvenile Act is to promote permanence for children in the
foster care system, and minimize "foster care drift" by expediting permanent placement.
It is extremely important to move a child toward a family-based placement such a
permanent legal custodianship, kinship care, or open adoptions when reunification is
4
Id.Page 3 of 6
unsuitable. Our main concern is always to prevent dependent children from languishing
indefinitely in foster care. C.. \V\. and A.tJI. have been in foster care for almost thre
years. In considering a change of goal from reunification to adoption, we focused o
what is in the best interests of these children and not the best interests of their Father.
The safety, permanency, and well-being of the children take precedence over all othe
considerations, including Father's parental rights. 42 Pa.C.S.A. § 6351(g); In re G.P.-R.,
851 A.2d 967, 973 (Pa.Super. 2004).
The Juvenile Act sets forth certain options available to the courts for th
permanent placement of a dependent child: (1) reunification with a biological parent,
guardian, or custodian (42 Pa.C.S.A. §6351(f.1)(1 )); (2) adoption (42 Pa.C.S.A.
§6351 (f.1)(2)); (3) legal custodianship in the event neither reunification nor adoption i
suited (42 Pa.C.S.A. §6351(f.1 )(3)); (4) placement with a fit and willing relative in the
event the three previous alternatives are unsuited (42 Pa.C.S.A. §6351(f.1)(4)); or (5)
placement in another planned permanent living arrangement when the four previous
alternatives are not best suited for the child's safety, protection, and physical, mental
and moral welfare. (42 Pa.C.S.A. §6351(f.1)(5)). Before a court may elect an option, i
must find that the other options are less suitable.
Reunification has been the goal for these children since March 2013. It is th
finding of this Court that there has not been any measurable progress made toward
making the goal of reunification attainable. Mother has been non-compliant, and while
Father has participated in drug, alcohol, and mental health evaluations, his participation
in other services is limited by his incarceration. We find it very telling that in 2015, when
Father was released, Father was immediately re-arrested and incarcerated.When given
Page 4 of
the opportunity to participate in a meaningful manner with CYF and this court to get his
children back, Father chose to re-offend", We have grave reservations that upon being
released, a date which remains uncertain, Father will be able to maintain the progress
he made while incarcerated. Further, Father's incarceration impacts his ability to take
custody of his children in very practical ways. Father's ability to care for his children will
not be immediate. Father would be released to a half-way house, have to find
employment, and have to procure suitable housing before he is available as a resource
for his children. (N.T., 03/03/16, pp. 7, 9-10, 34-39).
c..,-.t. and /\.I'\. have already spent too much time in foster care and an
further delay is unacceptable. A goal change from reunification to adoption is in the bes
interests of these children. We do not make this change lightly, but the history of this
case makes it appropriate.
We stress for the benefit of Father, and the Superior Court, that at the conclusion
of the March 3-;· 3016 hearing a concurrent plan remained in place. Father and Mothe
were both going to keep receiving services. Father is encouraged to continue with an
courses available to him during his incarceration, and CYF is to continue to investigat
the possibility of kinship placement with Paternal Grandmother or Paternal Aunt.6 (N.T.,
03/03/16, pp. 11-15; p. 25, I. 15-16).
The evidence presented on March 3, 2016 clearly shows that reunification is no
best suited to the children's safety, protection, physical, mental, and moral welfare. It is
5
Father testified that he is challenging the legality of this 2015 arrest. (N.T., 03/03/16, p. 34).
6
This plan addresses the problem of the children experiencing foster care drift since their
initial placement in 2013. Rather than waiting to pursue only one option, reunification, the
concurrent plan allows the children to move more quickly through the dependency system and
into the permanent placement best suited to their individual situation.
Page 5 of
not in the children's best interests to continue to be exposed to uncertainty in their foste
care placements in hopes that Father will gain his freedom and be able to care for them
some time in the future. The uncertainty of when or if Father will be able to provide fo
the children is exactly the situation the Juvenile Act is in place to minimize. We continue
to find any further delay in a goal change is not in the children's best interests.
CONCLUSION
The evidence presented supports our finding that a change in the permanenc
goal is appropriate at this time. For the foregoing reasons, the Court respectful!
requests that it's Mo.