Appeal from the Order October 23, 2012 In the Court of Common Pleas of Allegheny County Family Court at No(s): Docket Number: 706-11
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J. [*] [**]
B.K., ("Mother") appeals from the order entered on October 23, 2012, by the dependency court that appointed educational and medical guardians for K.R. On appeal Mother argues the trial court abused its discretion by: 1) misapplying the law when it found it was in K.R.'s best interest to appoint educational and medical guardians; and 2) appointing educational and medical guardians when the record was absent any evidence Mother was unable or unwilling to maintain this role. After review of the record, the submissions of the parties, and case law, we affirm in part and vacate in part.
K.R. originally came to the attention of Allegheny County Office of Children, Youth, and Families ("CYF") on April 4, 2011. Mother was discovered to be homeless, using heroin and cocaine, and unable to provide for the basic needs of Child. Following a hearing, by order signed on April 7, 2011 and entered on April 11, 2011, K.R. was adjudicated dependent and removed to foster care. A family service plan ("FSP") was established requiring Mother to maintain sobriety, submit to urine screens, participate in drug and alcohol treatment, maintain visits with Child, and participate in family group decision making and parenting courses. The dependency court granted CYF temporary legal custody of K.R. and specifically directed "that in the event of a medical emergency; the Agency shall have the right to consent to necessary treatment for the child." Order of Adjudication and Disposition – Child Dependent, 4/11/2011 at 2.
During the June 24, 2011, dependency hearing the court found Mother was non-compliant with all aspects of the permanency plan. Further, because there was no appropriate kinship home, K.R. was placed in foster care. K.R. has remained in the same pre-adoptive foster care home since that time. The court modified the terms of the medical consent to permit CYF "to consent to routine treatment of the child." Permanency Review Order, 6/24/2011 at 2. This authorization has continued in every subsequent permanency review order.
On October 17, 2012, the guardian ad litem filed a motion seeking appointment of foster parents as the medical guardians for Child. The motion stated on October 6, 2012 K.R. was taken by ambulance to Children's Hospital of Pittsburgh after suffering a seizure. The child was released the next day with a diagnosis of febrile (fever related) seizure disorder. However, on October 9, 2012, K.R. was readmitted to Children's Hospital having suffered multiple seizures. K.R. was discharged on October 11, 2012, this time with a diagnosis of febrile seizure disorder or frontal lobe epilepsy. Because of the commencement of seizures, Child will have to undergo follow-up neurological testing, medication trials and changes, and medical appointments.
A hearing was held on the motion on October 22, 2012. CYF and foster parents testified that they tried to contact Mother during the hospitalizations but were unsuccessful. Multiple messages were left on phone numbers given by Mother but she never called back or came to the hospital. Although Mother testified that she called the hospital every morning and evening while Child was hospitalized the court did not find her to be credible. Dependency Court Opinion, 12/24/2012 at 7. Foster parents were thereafter appointed medical and educational guardians. Mother timely appealed.
Our 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., 208 Pa. Super. 21, 943 A.2d 973, 977 (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.
In re R.J.T., 9 A.3d 1179, 1185 (Pa. 2010).
Mother's issues can be considered together. Mother contends the court erred in finding the appointment of foster parents as the medical and educational guardians is in the best interest of K.R. when Mother continues to be willing and available to maintain this role.
The record belies both of Mother's contentions. K.R.'s medical condition arose suddenly in early October 2012. The need to have consistent and ongoing communication with Mother is most important because of K.R.'s need for continued follow up non-emergency testing, care and treatment. However, the dependency court record shows a lack of responsiveness by Mother to calls from CYF has been an ongoing problem since Child was adjudicated dependent. The permanency review orders from the inception of the case show a pattern of CYF and foster parent inability to contact Mother successfully. The court made findings of the many unanswered messages left on the various phone numbers given by Mother to CYF. On those few occasions when Mother did respond, ...