Opinion
J-A07012-14 No. 1661 MDA 2013
03-21-2014
IN THE INTEREST OF: T.J., A MINOR APPEAL OF: R.J., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-0000075-2013
BEFORE: GANTMAN, P.J., DONOHUE, J., and STABILE, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, R.J. ("Father"), 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 the minor child, T.J. ("Child"). We affirm.
The relevant facts and procedural history are as follows. Father and Ti.J. ("Mother") are the biological parents of Child. Mother has an older child, M.Y. Jr., from another relationship, who is also in the family's broader case with BCCYS. BCCYS became involved with the family prior to Child's birth when, in January 2013, it received a report that Father was a registered sex offender living in regular contact with Mother's child, M.Y. Jr. BCCYS was unable to confirm whether Father had completed any sexual offender treatment, and Father was unwilling to leave the home where M.Y. Jr. lived, to allow BCCYS time to undertake further investigation and evaluations. BCCYS sought emergency custody of M.Y. Jr. and filed a dependency petition with respect to that child. Child was born in February 2013. In March 2013, when BCCYS learned Child was ready to be discharged from the hospital, BCCYS filed a petition for emergency custody, which the court granted. Subsequently, BCCYS filed a petition for dependency 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 M.Y. Jr. and Child] 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. Father was ordered to cooperate with sexual offender treatment as well as anger management evaluation and any recommended treatment.(Trial Court Opinion, 10/15/13, at 2-3). On July 5, 2013, Father timely filed a notice of appeal and simultaneously filed his statement of errors complained of on appeal.
On May 28, 2013, BCCYS filed a motion requesting that Father's visitation with [Child] be temporarily suspended based on Father's history of sexual contact with minors and lack of cooperation with sexual offender treatment. After a hearing held on June 5, 2013, the [c]ourt entered an order suspending Father's visitation and directing Father to continue with sexual offender treatment. To date, no order has been entered by the [c]ourt reinstating Father's visits with [Child].
The [c]ourt held a permanency review hearing on August 14, 2013. Mother and Father 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 Father 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.
Father 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?(Father's Brief at 3).
DID THE HONORABLE TRIAL COURT ERR IN CHANGING THE PERMANENCY PLAN GOAL TO ADOPTION?
In his first issue, Father argues BCCYS did not prove it provided reasonable efforts to reunify Child with Father and Mother. Father asserts the agency's recommendation that he temporarily move out of Mother's home does not promote reunification. He reasons an emergency petition for custody of Child at birth does not promote reunification. Father contends BCCYS made no reasonable efforts to reunify, because it sought the suspension of Father's supervised visits with Child. Father concedes he was denied visitation after refusing to comply with sex offender therapy. Tangentially, Father suggests the use of a polygraph as a condition on visitation violates the Fifth Amendment of the United States Constitution. Father submits BCCYS has not made reasonable efforts to reunify because it has largely interfered with Father's visitation with Child. Father concludes BCCYS failed to make reasonable efforts to finalize the permanency goal of reunification.
In his second issue, Father avers insufficient evidence supported the goal change from reunification to adoption. Father contends he cannot resolve the conditions which gave rise to placement of Child, because he is unable to alleviate his status as a sex offender. He claims neither Child nor M.Y. Jr. was given the opportunity to communicate through the guardian ad litem. Finally, Father concludes the record lacks sufficient evidence to support the goal change to adoption. We disagree.
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).
* * *
(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.
* * *
(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.(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:
(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.
* * *
(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 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.(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.
(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,In re R.M.G., 997 A.2d 339, 345 (Pa.Super. 2010), appeal denied, 608 Pa. 648, 12 A.3d 372 (2010).
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.
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 child permanency plan, among other things. BCCYS provided recommendations directed toward Mother's and Father's mental health. BCCYS' permanency plan proposed mental health evaluations and encouraged following any recommendations developed in a mental health evaluation. It endeavored to monitor parents' cooperation and progress with mental health treatment. These preliminary efforts, ostensibly aimed at diagnosing the family's needs in order to provide further services, are competent evidence to support the trial court's conclusion that BCCYS provided reasonable efforts to reunify Father and Child. See In re N.C., supra at 822-23.
To the extent Father argues BCCYS' recommendation against visitation demonstrates disingenuous motive or belies a finding of "reasonable efforts," the suspension of visitation, based on concern for Child's safety, is a distinct issue and does not call into question BCCYS' efforts to provide services to Father. Additionally, while not an issue in this appeal, the use of a polygraph was not a condition on visitation. It was only one recommendation, among others, tailored to address Father's pattern of sexually inappropriate behavior. ( See Trial Court Opinion, 10/15/13, at 6) (citing Psychosexual Evaluation of Father).
Moreover, Child was adjudicated dependent based on Father's history of sexual contact with minors and his failure to cooperate with sexual offender treatment, and on Mother's inability to recognize the risk Father posed to the children. A review of the record establishes the following: Father participated in a psychosexual evaluation in February 2013, shortly after Child's birth. The evaluator noted concerns with Father minimizing the seriousness of his past crimes, his anger issues, and his pattern of sexually inappropriate behavior. The evaluator recommended Father participate in group therapy sessions, submit to a therapeutic polygraph examination, have no contact with minors, and attend counseling to deal with stress and anger management. Father failed to cooperate with sexual offender treatment and has not participated in parenting education or an anger management evaluation. BCCYS scheduled casework sessions, which neither parent regularly attended. Both parents failed to cooperate with court-ordered services and ignored referrals and attempts by BCCYS to assist the parents in engaging in the services.
As to Father's assertion that the guardian ad litem failed to communicate the child's wishes to the trial court, pursuant to 42 Pa.C.S.A. § 6311(b)(9), this issue is not fairly encompassed in Father's issues on appeal. Moreover, Father concedes the child relevant to this appeal is an infant.
Father's failure to comply with BCCYS recommendations, failure to make independent efforts towards assuring the safety of children in his presence, and failure to make any demonstrable progress toward resolving the issues which gave rise to placement, constituted sufficient evidence to support the goal change to adoption. Accordingly, we affirm.
Order affirmed.
*JUDGE DONOHUE CONCURS IN THE RESULT. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary