In the Int. of: J.B.,Appeal of: Monroe Co. C & Y

J-A10041-23
2023 PA Super 100IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: MONROE COUNTY :
CHILDREN AND YOUTH SERVICES :
:
:
:
: No. 3020 EDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): CP-48-DP-0000048-2019
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: MONROE COUNTY :
CHILDREN AND YOUTH SERVICES :
:
:
:
: No. 3021 EDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): CP-48-DP-0000049-2019
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: MONROE COUNTY :
CHILDREN AND YOUTH SERVICES :
:
:
:
: No. 3022 EDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): CP-48-DP-0000050-2019
J-A10041-23
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: MONROE COUNTY :
CHILDREN AND YOUTH SERVICES :
:
:
:
: No. 3023 EDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): CP-48-DP-0000051-2019
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 9, 2023
Monroe County Children and Youth Services (“the Agency”) appeals
from the juvenile court’s orders dated October 12, 2022, and entered October
25, 2022, denying the Agency’s request to change the permanency goals of
J.B. (IV), born in July 2019; J.B. (II), born in December 2012; J.B. (I), born
in April 2010; and J.B. (III), born in September 2018 (collectively, “the
Children”), from reunification to adoption.1 After review, we reverse and
remand.
The subject family became known to the Agency in July 2019, when
K.L., the mother of J.B. (II), J.B. (III), and J.B. (IV), tested positive for
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* Former Justice specially assigned to the Superior Court.
1 As an order granting or denying a goal change in a dependency proceeding
is appealable, this matter is properly before this Court. See In re H.S.W.C.-
B., 575 Pa. 473, 478, 836 A.2d 908, 911 (2003).
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oxycodone at the birth of J.B. (IV). See Notes of Testimony (“N.T.”), 3/28/22,
at 8. The Agency obtained emergency protective custody of the Children on
September 10, 2019, after the arrest of J.B. (“Father”), the father of all four
of the children, and K.L. on drug-related and weapons-related charges.2, 3
N.T., 10/12/22, at 54, 59; N.T., 3/28/22, at 8-9. At the time, L.G., the mother
of J.B. (I), was also incarcerated on unrelated assault charges in New York.4
N.T., 10/12/22, at 52; N.T., 3/28/22, at 16-17. The court transferred legal
and physical custody of the Children to the Agency, and the Agency placed
the Children in foster care. See Shelter Care Orders, 9/13/19; see also N.T.,
3/28/22, at 9, 12, 25.
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2 The family additionally had an extensive history of referrals with child
services in New York and a history of domestic violence. See Petitioner’s
Exhibit 4, 3/28/22 (NY Office of Children and Family Services Documentation).
3 K.L. and Father were charged with, inter alia, multiple counts of
manufacture, delivery, or possession with intent to manufacture or deliver, as
well as criminal conspiracy; receiving stolen property; multiple counts of
endangering the welfare of a child; multiple counts of possession of a
prohibited firearm; possession of a firearm with the manufacturer number
altered; altering/obliterating the mark or identification of a firearm and
conspiracy related thereto; and multiple counts of possession of a controlled
substance and use of drug paraphernalia. See Petitioner’s Exhibits 5 & 6,
10/12/22 (Criminal Dockets). K.L. and Father additionally faced drug-related
charges in New York. See Petitioner’s Exhibits 38 & 39, 3/28/22 (Criminal
Charges).
Notably, the initial Agency caseworker, Monique Henry, related drug and
weapons concerns, as well as housing concerns. See N.T., 3/28/22, at 8-9,
20.
4For clarity, we refer to K.L. and L.G. by their initials hereinafter. We refer to
Father, K.L., and L.G. collectively as “Parents.”
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The court adjudicated the Children dependent on September 25, 2019,
and maintained the Agency’s legal and physical custody and the Children’s
placement in foster care. The court further established permanency goals of
reunification with concurrent goals of adoption as to the Children. See Orders
of Adjudication and Disposition, 9/25/19. Thereafter, the Agency created
Child Permanency Plans setting forth goals aimed at reunification, including
that Parents, inter alia: (1) resolve pending criminal issues; (2) establish and
maintain appropriate housing; (3) maintain financial stability; (4) maintain a
healthy and loving relationship with the child(ren); and (5) maintain
communication with the Agency. Father and K.L. were additionally required
to live a drug-free and sober lifestyle. See Petitioner’s Exhibits 3 & 45,
3/28/22 (Child Permanency Plans); see also Petitioner’s Exhibits 30, 31, &
36 (letters to Parents regarding their goals).
K.L. was released on bail on October 8, 2019. Father was extradited to
New York in February 2020 and released on bail on February 24, 2020. After
his release, he resumed living with K.L., as he had prior to their arrests. The
Agency received referrals relating to abuse and/or neglect of the Children by
Parents, in March and April 2020, which were deemed valid. See N.T.,
3/28/22, at 50, 52-53. Additionally, Ms. Amoroso confirmed reports of
domestic violence committed by Father, as well as continuing drug concerns.
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See N.T., 10/12/22, at 76; see also N.T., 3/28/22, at 53.5 L.G. was
ultimately released in April 2020. Father then subsequently surrendered to
authorities in New York on February 3, 2022, and he remained incarcerated in
New York.
J.B. (II), J.B. (III), and J.B. (IV) have been in foster care since
September 2019, and they have been placed together in the same foster home
since January 2020.6 J.B. (I), who had additionally been placed in that home
since January 2020, was moved to another foster home in May 2022, after an
incident with the foster father. See N.T., 10/12/22, at 11, 29, 38-39, 42-46,
61-62; see also N.T., 3/28/22, at 43. However, both foster homes are pre-
adoptive resources for the Children. See N.T., 10/12/22, at 63-64.
Throughout the ensuing dependency proceedings, the court maintained
the Agency’s legal and physical custody and the Children’s placement in foster
care, as well as permanency goals. The Agency filed petitions for goal changes
from reunification to adoption as to the Children on November 13, 2020, which
the court denied on December 14, 2020. See Permanency Review Orders,
12/23/20.
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5J.B. (II) similarly testified that Father hit her, J.B. (I), and her mother. See
N.T., 10/12/22, at 34.
6J.B. (III) and J.B. (IV) were placed together in this home prior to January
2020. N.T., 3/28/22, at 43.
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Approximately eight months later, the Agency again filed petitions for
goal changes on July 16, 2021. The court conducted hearings on March 28,
2022, and October 12, 2022. Parents were all represented by counsel.
Likewise, the Children were represented by a guardian ad litem Brandie
Belanger, Esquire.7
At the March 28, 2022, hearing, the Agency presented the testimony of
caseworkers, Monique Henry8 and Jamie Amoroso. Father was incarcerated
at the time of the hearing and, consequently, he was not present. Both L.G.
and K.L. were present.9
During the October 12, 2022, hearing, the court interviewed J.B. (I),
then 12 years old, and J.B. (II), then nine years old, in camera, with counsel
present. The Agency then continued with its presentation of the testimony of
Ms. Amoroso. L.G. also testified on her own behalf via telephone. K.L. was
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7 Attorney Belanger argued in favor of a goal change to adoption with a
concurrent goal of reunification. See N.T., 10/12/22, at 131-33. She
additionally submitted a brief to this Court, wherein Attorney Belanger argues
that the juvenile court abused its discretion by denying the Agency’s goal
change petitions.
8 Ms. Henry was the initial caseworker until the case was transferred to the
placement unit on October 7, 2019. See N.T., 3/28/22, at 7, 22, 25.
9The notes of testimony suggest that K.L. arrived late to the proceeding. See
N.T., 3/28/22, at 32; see also N.T., 10/12/22, at 39.
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present but did not testify on her own behalf. Father remained incarcerated
and again was not present and did not present any evidence.10
By orders dated October 12, 2022, and entered October 25, 2022, the
juvenile court denied the Agency’s request to change the Children’s
permanency goals from reunification to adoption.11 Thereafter, on November
23, 2022, the Agency filed timely notices of appeal, along with concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), which this Court consolidated sua sponte on December
20, 2022.
On appeal, the Agency raises the following issue for our review, “Did the
[juvenile] court abuse its discretion by refusing to change the goal for the four
minor children from [reunification] to adoption?” The Agency’s Brief at iv
(unnecessary capitalization omitted).
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10 The Agency further proffered a great number of exhibits at both hearings.
The court admitted Petitioner’s Exhibit Nos. 1 through 13, 16 through 22, 24,
25, 27 through 33, and 35 through 63 from March 28, 2022. The court
likewise admitted Petitioner’s Exhibit Nos. 1 through 10 from October 12,
2022. Additionally, K.L. submitted and the court admitted K.L.’s Exhibit No.
1. N.T., 10/12/22, at 98.
11 While the guardian ad litem and K.L. both indicate in their briefs that J.B.
(I)’s dependency has since been terminated, this is not reflected in the
certified record. Therefore, as we may only consider that which is in the
certified record, we proceed with appellate review as to J.B. (I). See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super. 2006) (en banc).
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Our standard of review concerning a juvenile court’s permanency
determination is abuse of discretion. In re A.B., 19 A.3d 1084, 1088
(Pa.Super. 2011). As our Supreme Court has stated,
[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., 608 Pa. 9, 26, 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
The Court explained:
Not only are our trial judges observing the parties during the
hearing, but usually, as in this case, they have presided over
several other hearings with the same parties and have a
longitudinal understanding of the case and the best interests of
the individual child involved. Thus, we must defer to the trial
judges who see and hear the parties and can determine the
credibility to be placed on each witness and, premised thereon,
gauge the likelihood of the success of the current permanency
plan. Even if an appellate court would have made a different
conclusion based on the cold record, we are not in a position to
reweigh the evidence and the credibility determinations of the trial
court.
Id. at 27, 9 A.3d at 1190.
The Juvenile Act governs proceedings to change a child’s permanent
placement goal. See 42 Pa.C.S.A. §§ 6301-6375. Trial courts must apply the
following analysis in considering a request to modify such goals:
Placement of and custody issues pertaining to dependent children
are controlled by the Juvenile Act [42 Pa.C.S.A. §§ 6301–65],
which was amended in 1998 to conform to the federal Adoption
and Safe Families Act (“ASFA”). The policy underlying these
statutes is to prevent children from languishing indefinitely in
foster care, with its inherent lack of permanency, normalcy, and
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long-term parental commitment. Consistent with this underlying
policy, the 1998 amendments to the Juvenile Act, as required by
the ASFA, place the focus of dependency proceedings, including
change of goal proceedings, on the child. Safety, permanency,
and well-being of the child must take precedence over all other
considerations, including the rights of the parents.
Pursuant to [42 Pa.C.S.A.] § 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 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. . . .
A.B., 19 A.3d at 1088-89 (internal citations and quotation marks omitted).
In relation to the significance of the best interest of the child, we also
noted:
[T]he focus of all dependency proceedings, including change of
goal proceedings, must be on the safety, permanency and well-
being of the child. The best interest of the child takes precedence
over all other considerations, including the conduct and the rights
of the parent. [W]hile parental progress toward completion of a
permanency plan is an important factor, it is not to be elevated to
determinative status, to the exclusion of all other factors.
In the Interest of M.T., 101 A.3d 1163, 1175 (Pa.Super. 2014) (citing In
re A.K., 936 A.2d 528, 534 (Pa.Super. 2007)). Further, there is no minimum
period of time that a child’s goal must be set at reunification before it can be
changed. See In re M.S., 980 A.2d 612 (Pa.Super. 2009). As indicated, “a
child’s life simply cannot be put on hold in the hope that the parent will
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summon the ability to handle the responsibilities of parenting.” In re N.C.,
909 A.2d 818, 824 (Pa.Super. 2006) (quoting In re Adoption of M.E.P., 825
A.2d 1266, 1276 (Pa.Super. 2003)).
The Agency argues the Children have been in care for over three years
and Parents have yet to satisfy all of their goals aimed at reunification despite
the services and efforts of the Agency. See Agency Brief at 16-18. The
Agency recognizes K.L.’s pending charges in Pennsylvania, as well as her
guilty plea and sentence of five years’ probation in New York, which requires
her to reside in New York. Id. at 16. As such, the Agency maintains that
K.L. had not resolved her criminal charges and failed to maintain appropriate
housing. Id.
Further, the Agency contends that housing likewise remained an issue
for L.G., who resided two hours away in New York, and was facing a denial of
an ICPC12 due to her lack of communication with the appropriate entities in
New York. Id. The Agency further notes L.G.’s complaints regarding her
current housing and indication of her desire to move. Id. at 16-17. Moreover,
the Agency emphasizes L.G.’s acknowledgment of an eviction notice. Id. at
17.
Finally, the Agency notes Father remained incarcerated. Therefore,
while he engaged in virtual visitation, he, too, had not resolved the goals of
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12 ICPC refers to the Interstate Compact on the Placement of Children.
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maintaining appropriate housing or financial stability. Id. at 17. As the
Children have been dependent for 37 months, in excess of the statutory
requirement, as recognized by the juvenile court, the Agency asserts that the
court ignored the best interests of the Children to establish permanency. Id.
The Agency avers:
These children have languish[ed] in foster care for over three
years. [T]heir parents continue to struggle to achieve their goal
and objectives while the [C]hildren grow up being cared for by
others. . . . [A]ll three parents continue to be unable to resolve all
of the hurdles in their lives[,] whether they be housing, criminal
cases, financial stability[,] or drug and alcohol concerns.[13]
Id. at 17-18 (footnote added).
In denying the Agency’s petition for a goal change, the juvenile court
concluded that, although the Children had been adjudicated dependent for 37
months, which exceeded the requirements of 42 Pa.C.S.A. § 6351(f)(9), K.L.
and L.G. had achieved some of the goals outlined in the permanency plan. For
instance, the juvenile court found that, although one of the goals for K.L. was
to resolve any criminal charges pending against her, and her criminal case
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13K.L. asserts the Agency failed to argue in its brief how the juvenile court’s
determination was not supported by the record and failed to cite to the record
as to any factual averments regarding K.L. As such, K.L. contends the Agency
has waived its claims with respect to her. K.L.’s Brief at 6-8. While we note
with disapproval the general inartful nature of the Agency’s brief, in particular
the failure to cite to the record as to K.L. in the argument section, we decline
to find waiver on this basis as the briefing deficiencies do not hamper our
appellate review. We discern the general issues raised and related argument.
See Pa.R.A.P. 2101 (relating to briefing requirements).
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had not yet proceeded to the sentencing phase, her pending criminal charges
were tied to Father’s criminal case, over which K.L. had no control as it was
dependent on the trial court’s calendar. Juvenile Court Opinion (“J.C.O.”),
12/21/22, at 5, 8-9 (citations to record omitted). The juvenile court also
noted K.L. and L.G. have met the goal of maintaining a healthy and loving
relationship with the Children. See id. In this regard, the court noted the
testimony of J.B. I and J.B. II revealed a strong bond with K.L. See id. K.L.
has not missed any visits and frequently brought activities to do with the
Children. See id. The trial court further noted J.B. II testified she would like
to see K.L. more times each week. See id.
While we acknowledge the juvenile court’s conclusion that some strides
had been made by the parents to meet the permanency goals, upon review,
we conclude the juvenile court abused its discretion in denying the Agency’s
requested goal changes with respect to the Children.
For example, as to L.G., mother of J.B. (I), twelve years old at the
conclusion of the hearing, the goals of housing and contact with the Agency
remained unachieved, as confirmed by Ms. Amoroso. N.T., 10/12/22, at 68.
Ms. Amoroso acknowledged that L.G. had acceptable income based upon her
monthly SSI income, as well as Section 8 housing. 14 N.T., 10/12/22, at 53,
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14 L.G., however, testified that she “just recently started working” after being
unemployed for a year. N.T., 10/12/22, at 105. Ms. Amoroso was unaware
of any new employment. Id. at 66.
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68; see also N.T., 3/28/22, at 101, 144-45. However, L.G. missed some
visitation due to illness and transportation issues, and she was “inconsistent”
with in-person and virtual visitation. N.T., 10/12/22, at 53-54, 66-67.
Moreover, Ms. Amoroso testified that she recently received notification
of a denial of a second ICPC request to assess L.G.’s home in West Chester
County, New York, due to L.G.’s lack of communication with the appropriate
agencies in New York.15 Id. at 51-52, 65-66; see also Petitioner’s Exhibit 7,
10/12/22 (ICPC email). Although L.G. reported she is currently involved in
the ICPC process and has an appointment scheduled related to the next step
of the process, she shared complaints about the home and expressed her
desire to move. N.T., 10/12/22, at 101-04 (“I had to call the building
department on my landlady because she has not been…attending to her
responsibilities….I have made several official complaints in regards to my
concerns…that I have never experienced in six years of living here.”). She
additionally reported receipt of an eviction notice, despite questioning its
legality and factual basis, given her Section 8 Housing voucher. Id. at 104
(“I’m also dealing with an eviction notice. However, I don’t owe any rent….I’m
also a Section 8 recipient…So[,] there’s no rent owed, and there’s no judge
that has evicted me….So[,] what she is doing is illegal.”). Ms. Amoroso also
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15A prior ICPC was also denied due to L.G.’s lack of communication. See
Petitioner’s Exhibit 57 (ICPC transmittal memo); see also N.T., 3/28/22, at
96, 99.
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recounted ongoing issues concerning L.G.’s communication with the Agency
and, when asked if L.G. stays in contact with her, she replied, “No.” Id. at
52-54, 91.
Next, as to K.L., mother of J.B. (II), J.B. (III) and J.B. (IV), nine, four,
and three years old at the conclusion of the hearing, respectively, the evidence
revealed that K.L. satisfied the goals of financial stability, maintaining contact
with the Agency, and maintaining a healthy and loving relationship with her
children. Id. at 57, 80-82, 93. Ms. Amoroso also acknowledged that K.L. was
providing urine screens and maintaining a drug-free lifestyle, only testing
positive for marijuana with a valid medical marijuana card. N.T., 10/12/22,
at 58, 83; see also N.T., 3/28/22, at 103, 158, 160; see also Petitioner’s
Exhibit 43 & 58 (urine screen results). However, Ms. Amoroso described a
recent referral from September 2022 where J.B. (II) was reported to have
ingested a gummy from K.L.’s bag and thereafter tested positive for THC.
N.T., 10/12/22, at 50-51, 57.
Furthermore, Ms. Amoroso acknowledged criminal proceedings in both
New York and Pennsylvania involving K.L. Ms. Amoroso noted that K.L.
entered a written guilty plea in July 2022 and was awaiting sentencing, as her
case was “tracking” with Father’s as a cooperating witness, in Pennsylvania.16
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16 Ms. Amoroso confirmed K.L. was compliant with parole in New York and
with the conditions of pretrial release in Pennsylvania. Id. at 74, 77.
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N.T., 10/12/22, at 54-55, 73-74. Further, K.L. pleaded guilty and, in March
2022, was sentenced to five years’ probation in New York. Id. at 55-56, 75-
76. However, Ms. Amoroso stated that the transfer of K.L.’s probation to
Pennsylvania was denied as her housing was not approved. As such, K.L. was
required to reside in New York and was residing with a family friend at an
address provided by K.L.’s probation officer. Id. at 41-42, 56, 59, 77-78, 80-
81. Ms. Amoroso testified that, despite inquiry, K.L. did not provide any
information regarding this residence in New York.17 Id. at 56-57, 59, 77, 92-
93.
Finally, Father had criminal matters pending in Pennsylvania and New
York and remained incarcerated in New York. Id. at 59-60. Given his
incarceration, Ms. Amoroso acknowledged that Father was unable to attain his
goals of maintaining housing or financial stability. Id. at 60-61, 86.
Significantly, Ms. Amoroso indicated the Children are happy and doing
well in foster care. She stated, “[J.B. (II), J.B. (III), and J.B. (IV)] have a
significant relationship with their foster parents, and they’re doing extremely
well and wish to remain in the home.” Id. at 61. J.B. (II) described a “very
strong” relationship with her foster parents and indicated that she would “like
to stay in foster care a little bit longer, because I feel like my parents are
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17 When questioned on cross-examination regarding an ICPC, Ms. Amoroso
explained that it would be the parent’s responsibility to request an ICPC and
K.L. never requested one. Id. at 81-82, 92.
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maturing up a little bit.” Id. at 28, 31. Further, while confirming J.B. (I)’s
desire to reside with his mother, id. at 66, Ms. Amoroso indicated that J.B. (I)
“reports being very happy and content” in his current foster home, id. at 62.
Based on the foregoing, we hold that the juvenile court abused its
discretion in denying the Agency’s petition for a goal change. After 37 months,
Parents had yet to satisfy their established goals toward reunification. Father
remained incarcerated. While L.G. and K.L. made some progress, housing
remained a significant issue for both women. Furthermore, K.L. remained on
long-term probation in New York and awaited sentencing in Pennsylvania. As
indicated, “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.”
N.C., 909 A.2d at 824. The Children are all in pre-adoptive homes where they
are happy and doing well. Accordingly, as the Children are entitled to
permanency and stability, the juvenile court erred in failing to recognize it is
in their best interests for their permanency goals to be changed to adoption.
For the foregoing reasons, we reverse. We remand to the juvenile court
for orders changing the Children’s permanency goals to adoption.
Orders reversed. Cases remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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