Opinion
J-S43001-16 No. 21 MDA 2016
06-27-2016
IN THE INTEREST OF: R.M.R, A MINOR APPEAL OF: C.M., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Dispositional Order December 11, 1015
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000258-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, C.M. ("Father"), appeals from the order entered in the Lancaster County Court of Common Pleas, which adjudicated his minor daughter, R.M.R. ("Child"), dependent, approved a child permanency plan with the primary goal set as adoption, and suspended Father's visitation with Child. We affirm.
The juvenile court's opinion sets forth the relevant facts and procedural history of this case as follows:
On November 20, 2015, the Lancaster County Children and Youth Social Services Agency ("[CYS]") received reports that Mother had given birth to her third child, R.M.[R]. [On November 23, 2015, CYS filed a petition for dependency and motion for the finding of aggravated circumstances.] Both Mother and Father have history with children services agencies. As of December 8, 2015, Father had fathered at least twelve children, only one of [whom] was in his care. Father previously had his parental rights involuntarily terminated as to another child in Lancaster County. At the time of the hearing, Mother had given birth to three children, none of whom were in
her legal or physical custody. Mother also previously had her parental rights involuntarily terminated as to another child in Montgomery County, Pennsylvania. Neither Mother nor Father had completed a child permanency plan for reunification, despite having been afford[ed] plans and provided services. Based on the family's history, [CYS] took emergency custody of the newborn and placed her in [a CYS] approved resource home. [CYS] filed a Petition for Dependency and a Motion for Finding of Aggravated Circumstances based on Mother's...prior involuntary termination of [her] parental rights [to another child].(Juvenile Court Opinion, filed February 1, 2016, at 1-3) (citations to record and footnotes omitted). On January 5, 2016, Father filed a timely notice of appeal and a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
The Shelter Care hearing was held on November 24, 2015. Both parents were present and indicated through their respective attorneys that they wished to waive the shelter care hearing without admitting any of the allegations set forth in the petition for dependency and without prejudice. The [c]ourt granted temporary legal and physical custody of the Child to [CYS]. Given the age of the [C]hild, the [c]ourt granted parents supervised, one-hour weekly visits at [CYS] pending the Adjudication/Disposition hearing.
The Adjudication/Disposition hearing was held on December 8, 2015. [CYS] presented the testimony of the caseworker.... Father was present, represented by counsel, and testified on his own behalf. Mother was also present, represented by counsel, and testified on her own behalf. The [c]ourt found [CYS] presented clear and convincing evidence establishing that the parental rights of the parent have been involuntarily terminated with respect to another child of the parent, proven as to Mother and Father, and found that aggravated circumstances existed as to both Mother and Father. An Aggravated Circumstances Order was issued on December 8, 2015. The [c]ourt also found that the [C]hild was without the proper care or control necessary for her physical, mental, and emotional health, or morals and adjudicated her dependent. The [c]ourt issued an Order of Adjudication and Disposition on December 8, 2015, which approved a child permanency plan with no goals from reunification with parents and the primary placement goal set as adoption. Parents are appealing that Order.
Father raises the following issues on appeal:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FINDING THE AGENCY MET ITS BURDEN TO FIND CHILD DEPENDENT WHEN FATHER TESTIFIED CONCERNING HIS STEADY INCOME, STEADY HOUSING, AND TREATMENT PROGRAMS HE COMPLETED IN THE PAST THAT ADDRESSED THE AGENCY'S CURRENT CONCERNS?(Father's brief at 7).
DID THE TRIAL COURT ABUSE ITS DISCRETION BY APPROVING A CHILD PERMANENCY PLAN THAT FAILS TO PROVIDE ANY GOALS FOR REUNIFICATION WITH FATHER WHEN FATHER TESTIFIED CONCERNING HIS STEADY INCOME, STEADY HOUSING, AND TREATMENT PROGRAMS HE COMPLETED IN THE PAST THAT ADDRESSED THE AGENCY'S CURRENT CONCERNS?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FINDING IT WAS NOT IN CHILD'S BEST INTEREST TO CONTINUE VISITATION BETWEEN FATHER AND CHILD WHEN FATHER TESTIFIED CONCERNING HIS STEADY INCOME, STEADY HOUSING, AND TREATMENT PROGRAMS HE COMPLETED IN THE PAST THAT ADDRESSED THE AGENCY'S CURRENT CONCERNS?
For purposes of disposition, we combine Father's issues. Father argues CYS failed to prove by clear and convincing evidence that Child was dependent because Father has completed all CYS programs, has maintained gainful employment, has a home large enough to accommodate Child, and cared for Child in the hospital after her birth without concern raised by CYS. Father also claims Child should not have been found dependent based on Father's prior involuntary termination of parental rights for another child because the termination occurred outside of the three-year statutory period within which a subsequent child must be adjudicated dependent. Alternatively, Father avers that if Child is dependent, CYS failed to prove it was clearly necessary to remove Child from Father's custody because he had not been offered any services since 2011, and is willing to complete any treatment or goals necessary to reunite with Child. Father insists his actions warrant a child permanency plan with a primary goal of reunification because CYS failed to provide adequate services to Father, hospital staff did not raise concerns about Father's care of Child, and Father has a steady income and appropriate housing for her. Father asserts that if a child permanency plan has a goal of reunification, the grave threat standard must be applied in the court's denial of visitation with Child. In this case, Father maintains CYS did not meet the standard because it failed to prove he had ongoing mental health issues that posed such a threat to Child. Conversely, Father maintains that if a child permanency plan with the goal of adoption is appropriate, his continued visitation with Child is in her best interest because Father has an emotional relationship with Child based on his willingness to reunite with her and because CYS failed to prove otherwise.
Our standard and scope of review from an adjudication of dependency is as follows:
The standard of review which this Court employs in cases of dependency is broad. However, the scope of review is
limited in a fundamental manner by our inability to nullify the fact-finding of the [trial] court. We accord great weight to this function of the hearing [court] because [it] is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before [it]. Relying upon [the court's] unique posture, we will not overrule [its] findings if they are supported by competent evidence.In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006) (quoting In re D.A., 801 A.2d 614, 617-18 (Pa.Super. 2002) (en banc)). The Juvenile Act defines a dependent child, in pertinent part, as follows:
§ 6302. Definitions42 Pa.C.S.A. § 6302(1), (10). A court may adjudicate a child as dependent if the child meets the statutory definition by clear and convincing evidence. E.B., supra. Additionally, "[a] finding of dependency can be made based on prognostic evidence and such evidence is sufficient to meet the strict burden of proof necessary to declare a child dependent." In re R.W.J., 826 A.2d 10, 14 (Pa.Super. 2003). "The court must make a comprehensive inquiry into whether proper parental care is immediately available or what type of care [father] could provide in the future." Id.
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"Dependent child." A child who:
(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [her] physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]
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(10) is born to a parent whose parental rights with regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within three years immediately preceding the date of birth of the child and conduct of the parent poses a risk to the health, safety or welfare of the child.
If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or a private or public agency, or transferring custody to the juvenile court of another state.E.B., supra at 1112.
Upon a finding of dependency, the court must focus on the child's best interests and order a disposition best suited to the child's safety and well-being. In re S.B., 943 A.2d 973 (Pa.Super. 2008); In re L.C., II , 900 A.2d 378, 381 (Pa.Super. 2006) (citing 42 Pa.C.S.A. §§ 6341(a), 6341(c), 6351(a)); 42 Pa.C.S.A. § 6351(g)). The court may not separate the child from her parent unless it finds that the separation is clearly necessary. In re G.T., 845 A.2d 870 (Pa.Super. 2004). Such necessity is implicated where the child's welfare, safety, or health demands she be taken from her parent's custody. Id .; In re R.W.J., supra ; 42 Pa.C.S.A. §§ 6301(b), 6351(b).
Aggravated circumstances may be alleged during dependency proceedings where "[t]he parental rights of the parent have been involuntarily terminated with respect to a child of the parent." 42 Pa.C.S.A. § 6302.
If the county agency or the child's attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether...reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a [permanency] hearing as required in section 6351(e)(3) (relating to disposition of dependent child).42 Pa.C.S.A. § 6341(c.1). See also 42 Pa.C.S.A. § 6351(e)(2). The existence of aggravated circumstances militates against returning the dependent child to her parents. In re A.H., 763 A.2d 873, 878 (Pa.Super. 2000).
Section 6351(f) provides in relevant part as follows:
§ 6351. Disposition of dependent child
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(f) Matters to be determined at permanency hearing.—At each permanency hearing, a court shall determine all of the following:
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(9) if the child has 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 home or to preserve and reunify the family need not
be made or continue to be made, determine 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 adopt the child....42 Pa.C.S.A. § 6351(f)(9).
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Additionally, in reviewing an order suspending visitation, our standard of review is as follows:
The polestar and paramount concern in evaluating parental visitation, in dependency as well as non-dependency situations, is the best interests and welfare of the children. Once a child is adjudicated dependent, the issues of custody and continuation of foster care are determined according to a child's best interests. Thus, it has been said that the sole concerns of a court called upon to enforce a parent's right of visitation are the welfare and best interests of the child.
However, because of the constitutionally protected liberty interest parents have to such visitation, parental visitation is usually not denied or limited unless visitation with the parent poses a grave threat to the child. In fact:
It has long been the law in this Commonwealth that only when the evidence clearly shows that [parents] are unfit to associate with [their] children should [they] be denied the right to see them. ...
In re C.J., 729 A.2d 89, 94-96 (Pa.Super. 1999) (internal citations and footnote omitted). "[S]o as not to usurp the role of the lower court as factfinder, we will affirm only if the evidence is such that no two reasonable people could disagree that the grave threat standard has been met." In re B.G., 774 A.2d 757, 762 n.5 (Pa.Super. 2001).
In dependency cases such as this, the standard against which visitation is measured also depends upon the goal mandated in the family service plan. Where, as here, reunification still remains the goal of the family service plan, visitation will not be denied or reduced unless it poses a grave threat. If, however, the goal is no longer reunification of the family, then visitation may be limited or denied if it is in the best interests of the child or children. The "best interests" standard, in this context, is less protective of parents' visitation rights than the "grave threat" standard.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jay J. Hoberg, we conclude Father's issues merit no relief. The juvenile court's opinion comprehensively discusses and properly disposes of the questions presented. ( See Juvenile Court Opinion at 3-12) (finding: (1) Father was treated for depression in 1980's but has not participated in treatment since 1989; Father took some parenting and domestic violence classes in late 1990's and completed alcohol treatment program in 2001 but testified that he still drinks alcohol occasionally; Father recently was unemployed for period of six years due to his ex-wife's illness, his caring for her, and her death; Father was involved in domestic violence incident shortly after taking most recent domestic violence course in 2004; Father has not had stable living situation, as he has moved on numerous occasions and currently lives with Mother and his son/brother from Father's incestuous relationship with his own mother; Father's testimony regarding his participation in treatment was not credible; moreover, regardless of whether Father completed treatment, he did not address CYS' concerns regarding inappropriate caretakers and lack of appropriate supervision for his children, as well as Father's mental health and substance abuse; Father has history of allowing inappropriate individuals to supervise his children or otherwise have access to them, including individual who sexually abused one of Father's children; neither parent has made visible progress toward alleviating concerns which necessitated removal of other children from their care; court cannot return Child to Mother and Father without jeopardizing Child's safety due to family history of sexual abuse and inappropriate relationships, untreated mental health of both parents, statutory finding of aggravated circumstances against both parents, lack of response to remedial efforts taken by CYS, and current lack of realistic remedial services; CYS presented clear and convincing evidence that neither parent is able to parent Child; thus, Child is dependent; (2) CYS caseworker testified credibly; testimony of Father was not persuasive and was vague in specifics of past treatment; majority of Father's treatment was too far in past to address current concerns of CYS; Father has not completed plan for reunification with any of his children; out of Father's twelve children, only two were ever in his care, and CYS was involved with both; since Father's last participation in mental health treatment, he has twice been indicated as perpetrator of sexual abuse by omission, has had his parental rights involuntarily terminated to another child, has had incestuous relationship with his own mother resulting in birth of four children, moved to new residence on numerous occasions, went through six-year period of unemployment, and continued to use alcohol despite history of alcohol abuse; Father refused to accept responsibility for sexual abuse of his child and admitted he remained in contact with at least one indicator of abuse; given family history, sexual abuse of Father's other child, and lack of remedial actions taken by Mother or Father regarding abuse and mental health issues, it was not in Child's best interest to be reunified with Mother or Father; thus, child permanency plan with primary goal set as adoption was approved; (3) record is clear Mother and Father have extensive mental health and parenting issues, which justified goal of adoption based on concern for safety of Child if placed in custody of either parent; to that end, court suspended all visitation; Father's denial of need for mental health services does not bode well for Child's safety; decision to suspend visitation was appropriate). Accordingly, we affirm on the basis of the juvenile court's opinion.
With respect to Father's claim of a limited statutory look-back period of three years, we observe Father's reliance on the specific definition of dependency is inapposite. Although his claim implicates the definition of dependency, found in 42 Pa.C.S.A. § 6302, the specific subsection on which he relies does not apply to this case. The juvenile court was not precluded from finding dependency pursuant to 42 Pa.C.S.A. § 6302(1) (defining "Dependent Child" to include determination that conduct of parent "places the health, safety or welfare of the child at risk"). Accordingly, under subsection (1), the juvenile court's finding was not limited to a statutory look-back period and the finding of dependency was appropriate.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/27/2016
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