Opinion
J-A07013-14 No. 1663 MDA 2013
03-21-2014
IN THE INTEREST OF: M.Y., JR., A MINOR APPEAL OF: T.J., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 16, 2013
In the Court of Common Pleas of Berks County Juvenile Division
At No(s): CP-06-DP-0000036-2013
BEFORE: GANTMAN, P.J., DONOHUE, J., and STABILE, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, T.J. ("Mother"), appeals from the order entered in the Berks County Court of Common Pleas, which granted the goal change petition filed by Berks County Children and Youth Services ("BCCYS"), with respect to her minor child, M.Y. Jr. ("Child"). We affirm.
The relevant facts and procedural history are as follows. Mother and M.Y. ("Father") are the biological parents of Child. Father is not a party to this appeal. Mother has a younger child, T.J., with her current husband, R.J. ("Stepfather"), who is also involved in the family's broader case with BCCYS. BCCYS initially became involved with the family in connection with an unsubstantiated allegation of abuse by Father against Child. Subsequently, in January 2013, BCCYS learned Stepfather was living in the home with Child, and that Stepfather was a lifetime registered sex offender. BCCYS was unable to confirm whether Stepfather had completed any sexual offender treatment, and Stepfather was unwilling to leave the home where Child lived, to allow BCCYS time to undertake further investigation and evaluations. BCCYS sought emergency custody of Child and filed a dependency petition with respect to Child. The trial court explained:
Following an adjudicatory and dispositional hearing held on March 20, 2013, the [c]ourt found that the allegations in BCCYS' dependency petitions [concerning both children] were proven by clear and convincing evidence and declared the minor children dependent. Parents were ordered to: (1) cooperate with parenting education; (2) cooperate with casework services and any recommendations; and (3) visit with the minor children and interact in an appropriate manner. Mother was further ordered to cooperate with a non-offending parent evaluation and any recommended treatment. [Stepfather] was ordered to cooperate with sexual offender treatment as well as anger management evaluation and any recommended treatment.(Trial Court Opinion, filed October 15, 2013, at 2-3). On September 13, 2013, Mother timely filed a notice of appeal and simultaneously filed her concise statements of errors complained of on appeal.
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The [c]ourt held a permanency review hearing on August 14, 2013. Mother and [Stepfather] were present and represented by Sharon L. Gray, Esquire. At this hearing, BCCYS requested that the placement goals be changed to adoption. [(N.T., 8/14/13, at 6)]. The [c]ourt took all of the exhibits and argument under advisement and deferred decision on BCCYS' request. On August 16, 2013, the [c]ourt entered a PERMANENCY REVIEW ORDER. The [c]ourt found that Mother and [Stepfather] had been only minimally compliant with the permanency plan and that there had been no progress made towards alleviating the circumstances which originally necessitated placement of the minor children. The [c]ourt also found that reasonable efforts had been made by BCCYS to reunify Parents and the minor children. Based on those findings, the [c]ourt ordered that the children's placement goals be changed to adoption.
Mother's Pa.R.A.P. 1925 statement was not entered in the trial court docket but appears in the record with her notice of appeal. Additionally, the statement is stamped as filed on the same date.
Mother raises two issues for our review:
HAS BERKS COUNTY CHILDREN AND YOUTH AGENCY SHOWN COMPETENT EVIDENCE THAT REASONABLE EFFORTS HAVE BEEN MADE TO PROMOTE REUNIFICATION OF THE CHILD AND PARENTS?(Mother's Brief at 3).
DID THE HONORABLE TRIAL COURT ERR IN CHANGING THE PERMANENCY PLAN GOAL TO ADOPTION?
In her first issue, Mother argues BCCYS failed to prove it had provided reasonable efforts to reunify Child with Mother. Mother avers the result of a psychiatric evaluation and IQ test were traumatic to her. Mother asserts the agency's recommendation that Stepfather temporarily move out of Mother's home does not promote reunification. Mother acknowledges she did not attend non-offender therapy sessions although they were ordered. She presumes Stepfather's status as a sex offender is being used as a deterrent to reunification and believes there has never been a reasonable effort made by BCCYS to preserve the family. Mother distinguishes any threat to Child's safety as a "perceived threat" rather than a "real threat." Mother contends unsubstantiated allegations concerning Child's birth father are contained in the petition for goal change solely "because they are salacious details." (Mother's Brief at 10). She avers the record in the August 14, 2013 hearing does not support a finding of reasonable efforts at reunification. Mother concludes BCCYS failed to make reasonable efforts to finalize the permanency goal of reunification.
In her second issue, Mother avers the evidence was insufficient to support the goal change from reunification to adoption. Mother explains her position is that the goal of the agency was adoption ever since her infant child was removed from the hospital and Child was removed from the home because Stepfather is a registered sex offender. Mother agrees Stepfather is unable to change his status as a "former" sex offender. Mother notes that neither child was present at the hearing, and their position was not placed on the record by the guardian ad litem, pursuant to 42 Pa.C.S.A. § 6311(b)(9). Mother stresses that the focus of the goal change hearing was Stepfather's prior criminality, rather than their recent parenting of the children. Mother concludes this Court should change the permanency goal to reunification or vacate the dependency order for lack of clear and convincing evidence. We disagree.
As to Mother's conclusion this court should vacate the adjudication of dependency, Mother did not appeal the dependency adjudication, so that issue is not properly before us.
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 relevant part:
§ 6351. Disposition of dependent child42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).
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(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.(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:
(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.
(6) Whether the child is safe.
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(10) If a sibling of a child has been removed from his home and is in a different placement setting than the child, whether reasonable efforts have been made to place the child and the sibling of the child together or whether such joint placement is contrary to the safety or well-being of the child or sibling.
(11) If the child has a sibling, whether visitation of the child with that sibling is occurring no less than twice a month, unless a finding is made that visitation is contrary to the safety or well-being of the child or sibling.
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(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.(f.2) Evidence.—Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the 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.
(4) If and when the child will be placed with a fit 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.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the child's parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and willing relative.
(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.
"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 (citing In re G.P.-R., 851 A.2d 967, 973 (Pa.Super. 2004)).
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, 1227 (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.In re R.M.G., 997 A.2d 339, 345 (Pa.Super. 2010).
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).
Instantly, BCCYS scheduled casework sessions, proposed safety plans, and developed a permanency plan, among other efforts to assist reunification. BCCYS provided recommendations directed toward Mother's mental health. BCCYS' permanency plan proposed mental health evaluations, encouraged Mother to follow any recommendations developed in a mental health evaluation, and endeavored to monitor her cooperation and progress with mental health treatment. These efforts, aimed at diagnosing the family's needs to provide further services, are competent evidence to support the trial court's conclusion that BCCYS provided reasonable efforts to reunify Mother and Child. See In re N.C., supra at 822-23.
Moreover, a review of the record establishes the following: Child was adjudicated dependent based upon Stepfather's status as a sex offender, Stepfather's history of sexual contact with minors, Stepfather's failure to cooperate with sexual offender treatment, Mother's inability to recognize that Stepfather posed a risk to minor children, and Mother's inability to keep her children safe from the risk. Mother attended a non-offending parent evaluation, from which an evaluator concluded Mother did not grasp the seriousness of Stepfather's past sexual contact with minors and Mother was susceptible to Father's continued influence. Consequently, Mother was referred to non-offending parent treatment, which she concedes she did not attend. Mother participated in visitation and combined parenting education. Still, Mother exhibited a lack of interaction with her children and poor parenting skills during the visitations. BCCYS scheduled casework sessions, which Mother failed to attend regularly. Mother failed to cooperate with court-ordered services and ignored referrals and other efforts by BCCYS to assist the parents in engaging in the services.
As to Mother's assertion that the guardian ad litem failed to communicate Child's wishes to the trial court, pursuant to 42 Pa.C.S.A. § 6311(b)(9), this issue is not fairly encompassed within the issues she has preserved for appeal. Moreover, our review of the record reveals that the guardian ad litem declined to provide testimony but ultimately provided closing statements in the hearing, communicating to the court no opposition to changing Child's goal to adoption. (N.T., 8/14/13, at 20-21).
Mother's failure to comply with BCCYS recommendations or to make any demonstrable progress toward resolving the issues which gave rise to placement, constituted sufficient evidence to support Child's goal change to adoption. Accordingly, we affirm.
Order affirmed.
*JUDGE DONOHUE CONCURS IN THE RESULT. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary