In the Interest of: J.B. Appeal of: R.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.B., MOTHER :
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: No. 188 WDA 2023
Appeal from the Order Entered January 20, 2023
In the Court of Common Pleas of Erie County
Juvenile Division at No.: CP-25-DP-0000112-2022
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: July 31, 2023
Appellant R.B. (“Mother”) appeals from the January 20, 2023 order of
the Court of Common Pleas of Erie County (“juvenile court”),1 changing the
permanency goal for her son, J.B., born in August 2017 (“Child”), from
reunification to adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351. Upon
review, we affirm.
The facts and procedural history of this case are undisputed.2 Appellant
first became involved with the Erie County Office of Children and Youth
(“Agency”) on March 29, 2022, after the Agency received a referral that Child’s
sibling, B.B., tested positive for THC, opiates, fentanyl and methadone at
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1 Father is not a party to this appeal.
2 Unless otherwise noted, these facts are taken from the juvenile court’s March
15, 2023 Pa.R.A.P. 1925(a) opinion. See Juvenile Court’s Opinion, 3/15/23,
at 1-8.
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birth. Mother’s case was opened with the Agency for ongoing services on April
13, 2022, and shortly thereafter, B.B. passed away when Mother fell asleep
while feeding him. The Agency continued to assist Mother with referrals for
services; however, Mother refused to engage in any services.
On May 16, 2022, Mother tested positive for acetyl fentanyl, fentanyl,
fluorofentanyl, norfentanyl, and THC at which time the Agency sought an
emergency protective order for the removal of Child from Mother’s care. On
May 20, 2022, the Agency filed a dependency petition for Child alleging he
was a dependent child pursuant to 42 Pa.C.S.A. § 6302. The Agency averred
Child was without proper parental care or control and asserted the following:
On March 29, 2022, the Agency received a referral that at the time
of the birth of Child’s sibling, Mother tested positive for THC,
opiates, fentanyl, and methadone. On April 22, 2022, the Agency
received a report that Child’s sibling was unresponsive and had
been hospitalized after aspirating on formula when Mother fell
asleep while feeding him. The sibling was taken off of life support
and passed away on May 3, 2022. Subsequently, the Agency
arranged a Family Group Decision-making Meeting to address the
ongoing concerns and a plan to ensure Child’s safety, but Mother
refused the meeting. Mother has failed to engage in any of the
services the Agency has referred.
The Agency has concerns about Appellant’s substance abuse.
Appellant has a history of using heroin, fentanyl, opiates, and
THC. Mother has been participating in methadone treatment
through Esper. Mother admitted to relapsing on heroin during her
pregnancy with Child’s sibling as well as using THC. After opening
the family for ongoing services, the Agency requested Mother
attend a urine screen to alleviate concerns. However, she failed
to show for six scheduled one-time urines. Subsequently, Mother
did attend a urine screen on May 6, 2022, and the Agency received
the results on May 16, 2022. Those results were positive for
fentanyl, fluorofentanyl, norfentanyl, and THC.
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The Agency has concerns about Mother’s mental health. Mother
reports she has been diagnosed with bipolar disorder, depression,
anxiety, and unspecified mood disorder. She also reported a
history of postpartum depression. Mother stated she did not treat
her mental health during her recent pregnancy and it is not known
if she has since resumed treatment.
Mother has a history with the Agency dating back to 2017 for
concerns of substance abuse, when she and Child tested positive
for methadone and THC at birth. Mother tested positive for THC,
opiates, fentanyl, and methadone at the time of Child’s sibling’s
birth on March 29, 2022. Mother also has an older child who is in
the custody of her Father. Mother has a criminal history, including
simple assault, forgery, possession of a controlled substance,
resisting arrest, retail theft, and public drunkenness.
Dependency Petition, 5/20/22, at 3-4 (minor editing).
On May 25, 2022, following a shelter care hearing at which Mother
stipulated, through counsel, to Child’s continued Agency care pending an
adjudication hearing, a Juvenile Hearing Officer found sufficient evidence was
presented to establish that it was not in the best interest of Child to return to
the home of Mother. Therefore, the hearing officer recommended that Child
remain in kinship care. The juvenile court confirmed those recommendations
on May 26, 2022.
An adjudication hearing was held on May 31, 2022, before the juvenile
court. Mother stipulated to the allegations set forth in the dependency
petition. With all interested parties, including Child’s guardian ad litem
(“GAL”) in agreement, the matter proceeded to a dispositional hearing and a
pre-dispositional summary was admitted without objection. Based on the
allegations set forth in the dependency petition, on June 2, 2022, the juvenile
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court determined that clear and convincing evidence existed to adjudicate
Child dependent pursuant to 42 Pa.C.S.A. § 6302(1). Mother was given the
following treatment plan:
1. Submit to genetic testing to assist in establishing paternity;
2. Complete an assessment for her eligibility for Treatment Court.
If deemed appropriate, Mother shall participate in all
recommended services through treatment court;
3. Remain drug and alcohol free and participate in random color
code urinalysis screenings through Esper Treatment Center;
4. Obtain gainful employment and provide proof of employment
to agency;
5. Obtain and maintain safe and stable housing and provide proof
of residency to agency;
6. Receive a mental health evaluation and follow any and all
recommendations; and
7. Participate in an agency approved parenting class and
demonstrate the ability to appropriately parent her child during
visitation.
Order of Adjudication and Disposition, 6/2/22, at 3.
The juvenile court established Child’s permanent placement goal as
return to parent or guardian concurrent with adoption and scheduled a three-
month permanency review hearing for September 26, 2022. The three-month
review would enable the court to closely monitor Mother’s progress and allow
her sufficient time to work on the treatment plan and demonstrate compliance.
At the September 26, 2022, permanency review hearing, the testimony
and evidence presented revealed that Mother entered an inpatient
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rehabilitation facility in Allenwood, Pennsylvania, from which she was
discharged in early July, 2022. Additional testimony revealed that Mother was
called to submit to random urinalysis testing seventeen times following her
discharge. Mother had eight no-show positive results, and nine positive
results for marijuana, even though she does not have a medical marijuana
card, fentanyl, norfentanyl, methadone, and EDDP (methadone metabolite).
Mother was aware that if the circumstances that led to placement were not
alleviated, the Agency would request a goal change to adoption. On October
4, 2022, the juvenile court issued a permanency review order, finding, among
other things, that Mother had been moderately compliant with the June 2
permanency plan and had made moderate progress toward alleviating the
circumstances that necessitated Child’s removal.
The court further ordered Mother to refrain from drugs and/or alcohol;
to submit to color code urinalysis screens at Esper Treatment Center; to
participate in drug and alcohol services; to continue to participate in and
complete Project First Step, Family Engagement through Erie Homes for
Children and Adults; continue to participate in and complete Family Behavioral
Therapy through Family Services, and complete a psychological assessment
with Dr. Peter von Korff; and attend all medical appointments and provider
meetings for Child. Mother was permitted to have weekly supervised visitation
with Child and was informed that her visits would increase in frequency and/or
duration if she complied with the court-ordered services. Child remained in
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foster care and another permanency review was scheduled for January 18,
2023. The goal remained unchanged: reunification concurrent with adoption.
On January 4, 2023, the Agency filed the instant motion to change the
permanency goal to adoption. In support, the Agency averred Mother “has
continued to test positive for illicit substances in her urine screens.” Motion,
1/4/23, at ¶ 7. The Agency further claimed that Mother “has also made
minimal progress with her treatment plan.” Id. Thus, given the lack of
compliance and failure to alleviate the circumstances of placement, the
Agency moved to change the permanency goal for Child to adoption. Id. at ¶
9.
Prior to the second permanency review hearing, held on January 18,
2023, the juvenile court directed Mother to urinalysis testing. Mother tested
presumptive positive for amphetamines, cocaine, ecstasy, methadone, THC,
fentanyl, morphine and heroin. Mother admitted to a probation officer that
she last used fentanyl and cocaine on January 15, 2023 and TCH and
methadone on January 18. She was unable to account for the remaining
substances in her system. Mother’s urinalysis results, as well as the court
summary and its accompanying attachments, were made part of the record
without objection.
At the permanency hearing, the juvenile court heard testimony that
during the review period Mother returned to inpatient rehabilitation in
Allenwood, Pennsylvania. However, she left the facility after only six days and
continued her drug use. The court summary reflects Mother continued to test
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positive for fentanyl throughout the review period.3 Significantly, the court
heard testimony that Child, who is five years old, is autistic and had “out of
control behaviors” requiring him to be placed in shelter care shortly after his
removal. Child remained in shelter care for approximately five months before
the Agency was able to set up and provide support for him to assist the foster
mother with his care. Child’s behaviors have drastically improved in the foster
home.
Additionally, Agency caseworker, Danielle Urban testified that the foster
mother was not a pre-adoptive resource and it was her belief that at this point
Child needed permanency. Ms. Urban further testified that the goal change
would open the Agency’s ability to fund an adoptive resource able to handle
Child’s needs.
Mother testified that, while she was never in denial of her drug problem,
she “was not really telling everybody how much I was really doing to deal with
everything.” N.T., Hearing, 1/18/23, at 13. Mother stated she now
understood she needs to deal with the grief from losing Child’s sibling (B.B.)
and intended to re-enter inpatient rehabilitation the following Monday. Id. at
13-14. Mother asked the court to give her additional time to work on her
treatment and sobriety.
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3 Mother claimed that her testing positive for THC could be explained by her
alleged possession of a medical marijuana card and prescription for
methadone.
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At the conclusion of the testimony, the court sought the position of the
GAL, who stated as follows.
Your Honor, I’ve struggled with this case. I think that because
Child has only been in care for eight months—and I know that
addiction is hard to beat, and, obviously, Mother’s severely,
severely addicted. But it’s my goal—it’s my place, I guess to say
at this point what’s in the best interest of Child. And I personally
have never seen a little boy as crazed, I guess, would be the word
as Child when I saw him at Edmund L. Child was like a pinball
bouncing off the walls I mean he was just crazed. Now that Child’s
in a home that is stable that the services are being provided that
are hooked up for him, that things are in place for him and he’s
doing so well—this was a five year old who wasn’t potty trained,
and now he’s potty trained or at least almost fully potty trained.
I just think it’s in his best interest that we do change the goal at
this time because Mother is still—she’s had opportunities to get
her drug addiction under control, and I do feel bad. She did lose
a baby. I understand that. And there is grief involved with that
and I understand that as well. But in the best interest of this
Child—and I did talk to the foster mom as well, who is not an
adoptive resource. So she doesn’t really have anything to gain by
sharing a lot of information with me, which, I believe, is—a lot of
it is in the resource reporting report. But it indicates that Child is
able to function so much better now with some—in the home that
he’s in. And I just think that’s in his best interest to move forward,
because he is such a young age, and he does definitely need
permanency. Child is only five years old.
Id. at 18-19 (minor editing).
Based on the court summary and the attached reports, the testimony at
the permanency review hearing, Mother’s continued drug use, including the
cocktail of substances in her system at the time of the January 18 hearing,
and the position of the GAL, the juvenile court issued an order on January 20,
2023, concluding that Mother failed to comply with the permanency plan and
failed to alleviate the circumstances leading to the removal of Child from her
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care. Significantly, the court found that the change of goal to adoption was
in Child’s best interest as his needs and life could not be put on hold in the
hopes that Mother would be successful in her third attempt at rehabilitation in
the eight months since Child had been in care. Mother timely appealed.
Although the juvenile court did not direct Mother to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, she still filed one asserting a
single claim. In response, the juvenile court prepared a Rule 1925(a) opinion.
On appeal, Mother presents the following issue for our review:
[I.] 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 (unnecessary capitalization omitted). At the core, Mother
claims that the juvenile court abused its discretion in changing Child’s
permanency goal to adoption because the court failed to consider adequately
her efforts at seeking treatment. Specifically, Mother points out that “she was
only given eight short months to comply with all aspects of the treatment plan
all while dealing with the throws (sic) of an active addition to opiates and the
trauma of the loss of her infant son.” Id. at 10.
It is well settled that the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365,
governs the placement and custody of a dependent child. See In re N.C.,
909 A.2d 818, 823 (Pa. Super. 2006). This Court reviews an order regarding
a dependent child’s placement goal pursuant to an abuse of discretion
standard. See Interest of H.J., 206 A.3d 22, 25 (Pa. Super. 2019). “In
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order to conclude that the [juvenile] 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.” In re N.C., 909 A.2d at
822-23 (internal citations and quotations omitted).
Our scope of review is of the broadest possible nature, and this Court
will ensure that the record represents a comprehensive inquiry and that the
hearing judge has applied the appropriate legal principles to that record. See
In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011). It is the responsibility of the
juvenile court to evaluate the credibility of the witnesses and resolve any
conflicts in the testimony. In re N.C., 909 A.3d at 823. Accordingly, “the
[juvenile] court is free to believe all, part, or none of the evidence.” Id.
(citation omitted). Thus, this Court affords great deference to the juvenile
court’s findings of facts that are supported by the record. See Interest of
H.J., 206 A.3d at 25. If the record supports the juvenile court’s findings, this
Court will affirm, even if the record could also support an opposite result. See
id.When reviewing the juvenile court’s goal change order, we are mindful
that the focus of all dependency proceedings, including goal change
proceedings, is on the safety, permanency, and well-being of the child and
that the best interest of the child must take precedence over all other
considerations. See id. Pursuant to 42 Pa.C.S.A. § 6351(f), the juvenile court
must consider numerous factors, including the extent of progress made
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toward alleviating the circumstances which necessitated the original
placement. See 42 Pa.C.S.A. § 6351(f)(3). If the juvenile court determines
that reunification with a parent is not in a child’s best interest, the court may
change the child’s goal to adoption. See 42 Pa.C.S.A. § 6351(f.1)(2). A goal
change to adoption does not terminate parental rights to a child, but “is a step
in that direction.” See Interest of H.J., 206 A.3d at 25.
This Court recognizes that “[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[,]” and that an agency should complete the
placement process within eighteen months. Id. (internal citation and
quotations marks omitted). Further, an agency must make reasonable efforts
to return a child to a biological parent. See Interest of T.M.W., 232 A.3d
937, 947 (Pa. Super. 2020). However, when an agency’s reasonable efforts
fail, the agency shall redirect its efforts towards placing the child in an
adoptive home. See N.C., 909 A.2d at 823. Once the juvenile court sets a
goal to adoption, an agency is no longer required to provide services to a
parent. In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008).
Instantly, upon our review of the record, as detailed above, and the
relevant case law, we conclude that the juvenile court accurately and
thoroughly addressed the merits of Mother’s sole argument challenging the
goal change to adoption. Juvenile Court’s Opinion, 3/15/23, at 13-15. The
evidence here established that, for the entire duration of this dependency
case, Mother failed to overcome her addiction to narcotics to properly care for
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Child who has special needs. Indeed, her struggle with sobriety was such that
she appeared at the January 18 permanency hearing with a cocktail of illicit,
and potentially life-threatening, substances in her system. As the juvenile
court explained:
[Mother] has failed to “alleviate the circumstances which
necessitated the original placement” and has demonstrated
minimal compliance with treatment plans designed to effectuate
reunification. See 42 Pa.C.S.A. § 6351(f). While [Mother]
demonstrated some compliance during the first review period, she
was unable to maintain her sobriety. In fact, the longer the
dependency action went on, the worse [her] drug use became.
[Mother’s] continued lack of any meaningful period of sobriety
demonstrates her inability to safely parent [Child]. As displayed
throughout this matter, [Mother] was well aware of what was
expected of her in order to safely reunify with [C]hild. The history
of [Mother’s] declining compliance with her treatment plan was
exhibited throughout the course of this matter. Despite concerns
of [Mother’s] abuse of drugs, [she] continued to either not show
up for her urinalysis screens or test positive. Most concerning is
that [Mother], who was well aware the Agency was requesting a
goal of adoption at her [permanency] review hearing, appeared at
the hearing and was able to function, with a cocktail of substances
in her system that quite frankly, should have killed her. This alone
demonstrates [her] significant addiction and ultimately her
inability to alleviate the circumstances that led to [Child’s]
removal.
Juvenile Court’s Opinion, 3/15/23, at 14. Given Mother’s ongoing addition
and consistently positive drug testing results, we agree with the juvenile court
that Child’s life cannot be placed on hold in the hopes that Mother’s “next
attempt at rehabilitation will be successful” and that she somehow will
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summon the ability to handle the responsibilities of parenting.” 4 Id. at 15
(citation omitted). Moreover, we also agree with the juvenile court’s
conclusion that Mother “has repeatedly demonstrated that she is not a reliable
reunification resource firmly committed to the exclusive health, safety, and
wellbeing of [C]hild. Consequently, based on the cumulative factors, the
change of goal to adoption is in [Child’s] best interest, and adoption is ‘best
suited to the children’s safety, protection, and physical and moral welfare.’”
Id. (citations omitted). Lastly, as the juvenile court found, the evidence
herein confirms, a goal change to adoption was in Child’s best interest because
his “physical and emotional needs are being met in his foster home and
changing the goal opens up the Agency’s resources to locate an appropriate
adoptive home able to address [his] autism and behavioral needs.” Id. at 14.
Accordingly, in light of the evidence adduced at the permanency
hearing, the juvenile court did not abuse its discretion in granting the Agency’s
motion to change the permanency goal to adoption. We, therefore, affirm the
juvenile court’s January 20, 2023 order. We further direct that a copy of the
juvenile court’s March 15, 2023 Rule 1925(a) opinion be attached to any
future filings in this case.
Order affirmed.
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4 To the extent Mother suggests that she made recent progress, we decline
her invitation to reweigh the evidence or disturb the juvenile court’s conclusion
that neither Mother’s minimal and declining compliance immediately before
the goal change, nor her hopes that she could summon the ability to handle
parenting responsibilities in the future outweigh Child’s need for permanency.
See Interest of H.J., 206 A.3d at 25.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2023
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