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In the Interest of R.J.T.

December 28, 2010


Appeal from the Order of the Superior Court entered February 19, 2010 at No. 269 WDA 2009, reversing the Order of the Court of Common Pleas of Allegheny County entered January 23, 2009 at JV-: 07-000237, and remanding. 990 A.2d 777 (Pa. Super. 2010)

The opinion of the court was delivered by: Mr. Justice Baer


ARGUED: October 19, 2010


This case comes before this Court as a Children's Fast Track matter involving the potential change of the goal of a dependent child's permanency plan from reunification with his parents to adoption. We granted review to consider whether the Superior Court erred in determining that the trial court abused its discretion in denying the goal change requested by the Allegheny County Office of Children, Youth, and Families ("CYF"). Upon review, we conclude that the Superior Court erred. Accordingly, we reverse the Superior Court's decision and reinstate the trial court's order.

On January 23, 2007, less than a month after his birth, R.J.T. ("Child") was removed from his parents' care following an incident of domestic violence between R.T. ("Mother") and J.T. ("Father") (collectively, "Parents"). Initially, Child was placed with his paternal grandmother. In February 2007, the trial court adjudicated Child dependent based on the domestic violence concerns and Parents' drug and alcohol use, and placed Child in foster care. A Family Service Plan ("FSP") was developed by CYF to address the domestic violence, drug, and alcohol issues that led to Child's placement. Permanency review hearings were held in May 2007, August 2007, December 2007, March 2008, June 2008, and August 2008, and, relevant to the current appeal, in January 2009, pursuant to 42 Pa.C.S. § 6351.

During this time, Child resided with foster parents ("Foster Parents").*fn1 Foster Parents, however, filed a request in October 2008 for Child's removal from their home citing Child's difficult behavior, including three-hour temper tantrums, Father's recent release from prison,*fn2 and pressure from Foster Parents' extended family. Notes of Testimony ("N.T."), 1/23/09, at 63. Foster Parents withdrew their request for removal the following month, citing a reduction in the duration of the temper tantrums and Child's increased ability to communicate his needs. N.T. at 63.

The relevant permanency review hearing was held on January 23, 2009, exactly two years after Child's initial removal from Parents' care. As of that date, Child resided with Foster Parents, who did not testify at the hearing; however, CYF represented that Foster Parents desired to pursue adoption of Child, despite the recently recanted request for removal of Child from their home. Mother and Father were married but not living together at the time of the hearing, and Mother had recently requested modification of a Protection From Abuse ("PFA") order to allow contact with Father, which would permit marriage counseling.*fn3 Additionally, Mother was pregnant with another man's child. Testimony was presented that Mother was working full-time and living on her own. She also stated that she was trying to make all her appointments but had difficulty coordinating her work schedule, her domestic violence counseling with Pittsburgh Action Against Rape, her mental health counseling, and her visits with her son. N.T. at 110-113. Father testified that he was pursuing many of his goals and that he hoped to reunify as a family with Mother, Child, and Mother's expected child. N.T. at 139. Father also testified that he had approximately seventy days left on probation with no pending charges and that he was attempting to find employment and to move out of his mother's house. N.T. at 140, 149.

Evidence was presented that Child visited with both Mother and Father.*fn4 Father acknowledged that he had only visited Child twice in the past year, due to his incarceration and his inability to afford the cost of a deputy sheriff, which was required for his visits under a prior trial court order.*fn5 CYF presented testimony that the visits with both Mother and Father had been successful and that Child interacted well with Mother and Father. N.T. at 60. Dr. Neil Rosenblum, the court-appointed psychologist, testified that he performed interactional interviews between Father and Child and between Mother and Child, as well as individual interviews with Mother. Dr. Rosenblum testified that during the interaction with Child, Father was warm and nurturing, and was very invested in Child. N.T. at 21. The psychologist observed that Father came prepared with age-appropriate toys for Child and exhibited intuitive skills and enthusiasm for interacting with Child. N.T. at 21. Dr. Rosenblum further noted that Child interacted happily with Father. N.T. at 21-22. Dr. Rosenblum also testified that Mother "has very good parenting skills." N.T. at 18.

Testimony revealed that Mother and Father had made some progress toward addressing their domestic violence and drug and alcohol problems, as well as their other goals. CYF, however, emphasized that Parents had not attained all the goals at the time of the hearing, as discussed below.

At the hearing, CYF made an oral motion for a permanency plan goal change from reunification with Parents to adoption.*fn6 N.T. at 165. KidsVoice, the guardian ad litem for Child, joined the goal change request. Counsel for CYF asserted that CYF would continue to provide services to Mother and Father in the event of a goal change to adoption. Mother and Father objected to the goal change and testified to their strong desire to be reunited as a family with Child.

Dr. Rosenblum recommended dual-tracking, also known as concurrent planning. In In re Adoption of S.E.G., 901 A.2d 1017, 1019 (Pa. 2006), we observed that concurrent planning "is a dual-track system under which child welfare service agencies provide services to parents to enable their reunification with their children, while also planning for alternative permanent placement should reunification fail." Dr. Rosenblum testified that Mother and Father were actively pursuing their goals and that reunification was still possible despite continuing serious issues. N.T. at 9-11. Conversely, Dr. Rosenblum recognized that Child had been in placement for an extended time, which would counsel in favor of a goal change, but noted that Foster Parents' recent filing and recantation of their request to remove Child from their home raised doubts about their commitment to Child. N.T. at 9-11. Premised upon these concerns, Dr. Rosenblum testified that he would like to conduct further evaluations of Foster Parents. After considering Dr. Rosenblum's testimony and the other evidence presented, the trial court denied the motion for goal change for the reasons set forth below.

In considering the goal change motion, the trial court correctly observed that it had a "responsibility to look to the best interests of Child and not those of Child's parents." Tr. Ct. Op. at 4; see, e.g., 42 Pa.C.S. § 6351(g). Noting that the relevant statute, 42 Pa.C.S. § 6351(f.1), provided several permanency plan options for Child, including reunification and adoption, the court opined that reunification is the "preferred option" and that "[i]n order for the goal to be changed to adoption, it must be proven that this option is best suited to the child's safety, protection, and physical, mental, and emotional welfare and reunification is not the best option." Tr. Ct. Op. at 4. The court further viewed the law to require that "when the parents of a dependent have cooperated with [the] child welfare agency, achieved the goals of their permanency plans, and alleviated the circumstances that necessitated the child's original placement, the agency should continue to put forth efforts to reunite the child with [his] parents." Tr. Ct. Op. at 4-5.

The trial court determined, based on the facts at the time of the hearing, that "reunification is best suited to Child's safety, protection and physical, mental, and emotional welfare and adoption is not best suited for several reasons." Tr. Ct. Op. at 5. As the first reason for its conclusion regarding adoption, the court stated that "it is uncertain whether Foster Parents are fully dedicated to Child, thus calling into question the long-term stability of Child's current placement." Tr. Ct. Op. at 5. As evidence to support its finding, the court noted that "Dr. Rosenblum testified that the [October 2008 notice requesting removal of Child] changed his opinion of the situation and [that Dr. Rosenblum] would want to conduct further evaluations with Foster Parents and Child to determine if this home is the best fit for Child." Tr. Ct. Op. at 5. The court also expressed concern regarding the "pressure exerted by [Foster Parents'] extended family [that] shows that the extended family does not have a close relationship with Child or see him as part of the family, which could be detrimental to the emotional and mental welfare of Child." Tr. Ct. Op. at 5.

As a second reason for rejecting the goal change to adoption, the trial court found that "both Father and Mother have been adamant in their pursuit to regain custody of Child by working toward their Family Service Plan (FSP) goals and become a family." Tr. Ct. Op. at 5. The trial court was not blind to issues that remained as obstacles to reunification including Mother and Father's history of domestic violence. The court, however, noted that Father had attended a seventeen-week anger management and domestic violence class and that Mother intended to withdraw the PFA order she attained against Father to allow them to attend marriage-counseling classes together. The court also observed that both Mother and Father had attended at least some of the required behavioral health therapy sessions. In addition, the trial court noted that Father testified that he would treat Mother's unborn child (for which he was not the biological parent) as his own, if reunification was granted. The court emphasized evidence, some of which was introduced by CYS, indicating that both Mother and Father interacted well with Child and showed positive parenting skills. The court also noted that Mother had attained her goals of securing housing and full-time employment.

The court concluded, "the best interests and permanent welfare of Child at this time is to not change the goal to adoption, but for the goal to remain reunification." Tr. Ct. Op. at 7. Although the court did not use the term "concurrent planning" in the phrasing of its conclusion, his final two sentences address the consideration of two tracks for Child. First, the court observed that not changing the goal would allow Mother and Father to come into full compliance with their FSP goals. Second, the court noted that not changing the goal would also allow "additional time to satisfy this Court's serious concerns about the permanence of Child's current placement and Child's attachment to Foster Parents." Tr. Ct. Op. at 7. Nothing in the trial court's order or opinion closed the door to CYF's pursuit of the goal of adoption through termination proceedings.

CYF appealed the denial of the goal change to the Superior Court, asserting that the trial court had abused its discretion in denying the goal change motion for a two-year-old child who had been in placement for twenty-two months. In a published opinion of a three-judge panel with one dissenting judge, the Superior Court reversed and remanded for entry of an order changing the goal to adoption. In re: R.J.T., 990 A.2d at 788.

The Superior Court stated that the proper standard of review in dependency cases is whether the trial court abused its discretion, noting that the appellate court must accept the facts as found by the trial court, unless they are not supported by the record, but that the court is not bound by the trial court's inferences or legal conclusions. Id. at 780; see also, e.g., In re D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009); In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008). As did the trial court, the Superior Court emphasized that the focus at a permanency plan hearing is on the best interests of the child, not the parent. Further, the court stated that the burden of proof is on the agency seeking the goal change.*fn7

The Superior Court next turned to the statutory requirements of the Juvenile Act for disposition of a dependent child as set forth in 42 Pa.C.S. § 6351, with special focus on the dictates of subsection (f).*fn8 It noted that § 6351 requires trial courts to conduct a "permanency hearing for the purpose of determining or reviewing the permanency plan of the child, the date by which the goal of permanency for the child might be achieved and whether placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child." 42 Pa.C.S. § 6351(e)(1). The Superior Court observed that § 6351(f), requires trial courts to consider numerous, specified matters at each permanency hearing, including subsection (f)(9), which serves as a focal point of the current appeal:

(f) Matters to be determined at permanency hearing. - At each permanency hearing, a court shall determine . . .

(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 child's parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, 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. § 6351(f)(9) (emphasis added, language omitted relating to exempted circumstances not applicable to the case at bar).

In summarizing the state of the law, the Superior Court extensively quoted the decision of this Court in In re S.E.G., 901 A.2d 1017, in which we addressed the incorporation of concurrent planning into Pennsylvania's Juvenile Act, 42 Pa.C.S. ยง 6301, et seq., pursuant to the Federal Adoption and Safe Families Act of 1997, Pub L. 105-89 ("ASFA"). As previously stated, concurrent planning involves a dual-track system by which agencies are encouraged to provide simultaneous services aimed at both reunification and adoption. Id. at 1019. In In re S.E.G., we observed that concurrent planning developed to address the problem of foster care drift, where children languished in the foster care system while their parents unsuccessfully attempted to regain custody. Id. Rather than waiting to pursue adoption options until all reunification attempts fail, concurrent planning allows children to move more quickly through the dependency system and into the permanent placement best suited to their individual situation through ...

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