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In re D.P.

May 6, 2009

IN THE INTEREST OF: D.P., MINOR APPEAL OF: A.M.
IN THE INTEREST OF: D.M., MINOR APPEAL OF: A.M.
IN THE INTEREST OF: J.M., MINOR APPEAL OF: A.M.



Appeal from the Order Entered July 10, 2008, Court of Common Pleas, Lancaster County, Juvenile Division, at Nos. 1012, 1013 & 1014 of 2005 Formerly CP-36-DR-00000597-2005.

The opinion of the court was delivered by: Shogan, J.

BEFORE: PANELLA, SHOGAN and KELLY, JJ.

OPINION

¶ 1 In these consolidated appeals, Appellant, A.M. ("Mother"), appeals from the dispositional order in dependency proceedings which changed the permanency goal for Mother's three male children, D.P. (D.O.B. 2/2/94), D.M. (D.O.B. 12/23/95), and J.M. (D.O.B. 3/9/98) (collectively, "Children").

The Children were previously adjudicated dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. In the order on appeal, the trial court changed the goal for the family from reunification to adoption, and ordered a concurrent permanency goal of "placement in another planned living arrangement intended to be permanent."*fn1 We affirm.

¶ 2 The trial court's Opinion sets forth the extensive procedural history of this case and makes numerous factual findings. We will recite only those parts of the trial court's opinion that bear upon this appeal.

¶ 3 The Lancaster County Children and Youth Social Services Agency ("Agency") first became involved with Mother and her children in July, 1998, when Mother was arrested in the course of a drug raid. At that time, it was reported that, during the raid, Mother was smoking crack cocaine in front of her four children, who included D.P., D.M., and J.M.*fn2 Protective services were provided to the family. After Mother completed her goals in the Family Service Plan, the Agency closed the case on August 25, 2000.

¶ 4 Next, on April 28, 2004, the Agency received a report that Mother was not properly supervising her children. Thus, on May 21, 2004, the Agency filed a petition for legal custody of the Children. The Children were found to be dependent, pursuant to 42 Pa.C.S.A. § 6302(1),*fn3 and physical custody was given to the Agency. A new, second Family Service Plan was approved to address Mother's drug addiction, the Children's educational needs, stable and sanitary housing, Mother's supervision of the Children, stable and adequate income, parenting education, and provision of the Children's basic needs. Thereafter, Mother made minimal progress on her plan and was uncooperative with the Agency. Although the Agency continued to have concerns about the Children, the Children were attending school and their basic needs were being met. Accordingly, the Agency filed a petition to release custody of the Children. The trial court granted the petition on April 4, 2005, and custody was returned to Mother.

¶ 5 On July 26, 2005, the Agency received a referral alleging that Mother was again actively using cocaine, and that her addiction was negatively impacting the Children. On August 19, 2005, the Agency filed a petition requesting custody of the Children. At Mother's request, on August 23, 2005, the trial court continued the matter to September 20, 2005. As part of the continuance order, the trial court listed a set of eight conditions with which Mother was required to comply. These conditions included, inter alia, requirements that Mother allow unannounced home visits and submit to random unannounced drug screens. The trial court further directed the Agency to immediately file a petition for physical custody of the Children if Mother failed to comply with any of the conditions in the order.

¶ 6 Immediately after the court session on August 23, 2005, the Agency caseworker visited Mother's home. The home was found to be in a state of disarray. Clothes were scattered throughout the home and were piled up in the various rooms, and the home's floors were dirty and littered with trash.

There were beer cans inside the home and in the recycling bin outside of the home. At this same home visit, Mother tested positive for cocaine. Mother denied any drug use, but agreed to make arrangements for her children to stay with her mother until she could access drug treatment and provide the Agency with clear urine screens. These arrangements were short term, however, because the maternal grandmother resided in a recreational vehicle at a campground, and she was leaving in October 2005 to travel during the winter months.

¶ 7 On August 24, 2005, the Agency filed a petition for physical and legal custody of the Children. The trial court granted the Agency immediate temporary custody. The trial court held a Shelter Care Hearing on August 29, 2005, and, at that time, ordered that the Agency would retain custody of the Children until the Adjudication/Disposition hearing scheduled for September 20, 2005.

¶ 8 At the hearing on September 20, 2005, the trial court found the Children to be dependent, and continued them in the custody of the Agency.

The trial court also approved Child Permanency Plans, setting forth numerous goals for Mother to address in order to achieve reunification with the Children. The Primary Permanency Goal in the plans was "Return to parent, guardian or other custodian."

¶ 9 A Master held a review hearing on February 6, 2006. The Master's recommendation noted that Mother was making substantial progress toward compliance with her plan components. The trial court approved the Master's recommendation, and continued the Children in the care of the Agency.

¶ 10 At a subsequent review hearing on June 26, 2006, the Master found that Mother had completed group counseling, but she was terminated from individual counseling for missed appointments, and that she no longer had employment. The Master characterized Mother's compliance with her plan as "partial." The Master found aggravated circumstances with regard to Father, because of his lack of contact with the Children. The goal for the Children remained to return home to Mother.

¶ 11 On November 30, 2006, the Master held another review hearing. The

Master found Mother in substantial compliance with her plan, but noted that Mother would be charged with felony and misdemeanor charges related to identity theft. The Master also indicated that Mother had done well on all other aspects of her Child Permanency Plan, and, if not for the criminal charges, the Children would be transitioning home. The Master also stated that, if Mother's criminal charges could be resolved, the Children would be able to return home in a reasonable period of time.

¶ 12 The Master next conducted a review hearing on April 30, 2007. In the intervening time since the previous review hearing, Mother had been charged with three felonies and two misdemeanors. The Master found that Mother was in partial compliance with her plan. The Master noted that Mother was incarcerated in December of 2006 based on felony charges, and the Master included a finding that Mother was to address her improper usage of the Children's social security numbers. The Master added the goal of maintaining a crime-free lifestyle to Mother's plan. The Master also stated that the then-current placement goal of return home was appropriate, but indicated that termination of parental rights and goal change petitions would be filed. The trial court adopted the Master's recommendation.

¶ 13 On September 18, 2007, a Master held a subsequent permanency review hearing. The Master found Mother to be in substantial compliance with her permanency plan, but found that she still needed to complete parenting classes and to resolve the criminal charges against her. The Master ordered D.M. to remain in the legal and physical custody of the Agency, increasing the visitation between Mother and D.M., with the goal of transitioning him to home. The review order for J.M. made the same findings. Regarding D.P., the oldest of the three children, however, the review order returned him to Mother's physical custody.

¶ 14 On October 11, 2007, Mother filed a Petition to Transition Children Home, citing the positive review findings regarding Mother from the review hearing of September 18, 2007. In the petition, Mother asserted that she had cooperated with the court regarding her outstanding criminal charges, but claimed that she was not in a position to expedite the resolution of the outstanding charges. Mother also asserted that the Agency had not complied with the court order because Mother's visitation with J.M. and D.M. had not been increased to transition them home. The trial court, by an order entered on October 18, 2007, granted Mother relief, and ordered transitional visits with Mother. Additionally, the trial court ordered the Agency to schedule a hearing before a judge to review the progress.

¶ 15 As a result of postponement, a Master conducted the review hearing on March 4, 2008. The Master recommended, and the court approved, an order which returned physical custody of D.M. and J.M. to Mother, with legal custody remaining with the Agency. D.P. continued to remain in the physical custody of Mother, and the Agency retained legal custody of him. Mother was directed to abide by a new Family Service Plan that was to be submitted.

¶ 16 On April 11, 2008, the Agency filed new petitions seeking the return of D.M. and J.M. to the Agency's physical custody. The petitions alleged that Mother had violated the Family Service and Safety plans that were in place, in that D.M. and J.M. had missed numerous therapy sessions while they were in Mother's care, and that Mother had permitted an unidentified adult male to reside in her home with the Children. Based upon the allegations in the petitions, the trial court ordered that the Agency would have temporary custody.

¶ 17 After the hearings were continued, on April 23, 2008, upon agreement by the Agency, Mother and the guardian ad litem, the trial court entered orders retaining D.M. and J.M. in the legal and physical custody of the Agency pending a dispositional hearing, which was scheduled for May 21, 2008. On May 9, 2008, the Agency presented a petition for the return of D.P. to the Agency's physical custody. The Agency alleged, inter alia, that D.P. had left Mother's home after witnessing Mother consume illegal drugs ith an unidentified adult male. The trial court granted the request in a temporary order. On May 16, 2008, the trial court held a Shelter Care hearing, and D.P. was ordered to be retained in the Agency's physical and legal custody.

¶ 18 Because all three Children had already been ruled dependent, a disposition hearing was commenced on June 2, 2008, and continued to July 2, 2008, for additional testimony. Following the conclusion of testimony, on July 10, 2008, the trial court entered orders with regard to each of the Children that found they continued to be dependent, and which retained legal and physical custody in the Agency. The trial court approved new Child Permanency Plans. In these plans, the Primary Permanency Goal was changed to "Place for Adoption," and the Concurrent Placement Goal directed, "Placement in another planned living arrangement intended to be permanent."

¶ 19 On August 8, 2008, Mother filed timely notices of appeal from the dispositional order. Thereafter, on August 12, 2008, the trial court entered orders directing Mother to file a Concise Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b), within twenty-one days. Mother complied by filing her Rule 1925(b) Statements on August 21, 2008.*fn4

ΒΆ 20 The questions before the Court are: 1) whether the trial court erred in failing to give Mother a Child Permanency Plan to complete; 2) whether the trial court erred in not giving proper weight to the fact that Mother had completed a Child Permanency Plan and would be capable of completing an additional plan for the return of the Children; and 3) whether the trial court erred in not giving proper weight to the wishes of the Children, at ages 14, 13, and 10, to be returned to ...


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