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[U] In re J.M.D.

Superior Court of Pennsylvania

August 9, 2013

IN THE INTEREST OF: J.M.D., A MINOR
v.
APPEAL OF: M.A.D., MOTHER IN THE INTEREST OF: W.A.D., JR., A MINOR APPEAL OF: M.A.D., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Order entered January 30, 2013, in the Court of Common Pleas of Centre County, Civil Division, at No.: CP-14-DP-8-2011

Appeal from the Order entered January 30, 2013, in the Court of Common Pleas of Centre County, Juvenile Division, at No.: CP-14-DP-0000009-2011

BEFORE: DONOHUE, WECHT, and COLVILLE [*] , JJ.

MEMORANDUM

WECHT, J.

M.A.D. ("Mother") appeals from the orders of court dated January 29, 2013, and entered on January 30, 2013, which changed the permanency goals for her dependent sons, W.A.D., Jr., ("W.A.D.") (born in July of 2008) and J.M.D. (born in January of 2010) (collectively "the Children"), from reunification to adoption. See 42 Pa.C.S.A. § 6351. Following review, we affirm.

In 2010, Centre County Children and Youth Services ("CYS") began to receive referrals concerning Mother, although CYS previously had contact with Mother following W.A.D.'s birth. CYS received reports that Mother failed to properly supervise the Children for periods of time and failed to secure responsible adult supervision for the Children during periods of her absence.[1] For instance, on June 6, 2010, Mother left the Children unattended while she drove her then-boyfriend to his place of residence. Notes of Testimony ("N.T."), 2/22/11, at 20. At that time, a neighbor called police, who gained entry to Mother's residence and found the Children asleep. Mother testified that she had asked a neighbor to watch the Children, but a miscommunication resulted in the Children not being supervised. Id. at 20-22. As a result of this incident, Mother was arrested and pleaded guilty to endangering the welfare of a child. She received a sentence of probation. Id. at 25-26.

In addition, on September 21, 2010, Mother left her home in order to chase J.M.D., her younger son, who had run from her home toward a neighbor's house. At the time, Mother had left W.A.D. inside her residence in his highchair. Id. at 23. W.A.D. was discovered unattended by a Parenting Plus representative. Id.

On February 7, 2011, CYS filed dependency petitions for W.A.D. and J.M.D.. On February 22, 2011, the trial court adjudicated the Children dependent. Id. at 24-26. However, the Children were not taken from Mother's home at that time. Instead, the trial court ruled that the Children would be removed and placed in the custody and control of CYS, only if they were left without adult supervision again. Id. at 26-27.

On August 10, 2012, at Mother's housing complex, W.W., Mother's then paramour, now fiancé, was supervising the Children in a common area filled with many adults and children, while Mother cooked dinner inside the residence. At the time, W.W. also was holding baby B.W., the biological daughter of Mother and W.W. and the Children's half-sister. B.W. threw up on W.W., who then stepped inside Mother's residence to clean off the vomit. W.W. testified that he believed that the other adults in the common area would monitor the Children. N.T., 10/24/2011, at 11-12. However, as W.W. stepped back outside, a neighbor informed him that J.M.D. had stepped off the curb into the parking lot. Id. at 13. A relative of that neighbor, who had been present, testified that J.M.D. had nearly been struck by a vehicle in the parking lot. N.T., 8/12/11, at 7. An argument developed between W.W. and the individuals who returned J.M.D. to W.W.'s care. Shortly thereafter, a referral was made to CYS, and the Children were placed in the custody and control of the agency pursuant to the earlier court order. N.T., 2/22/2011, at 43.

Following the Children's placement, services were offered through Family Intervention Crisis Services ("FICS"), with the goal of reunifying the Children with their natural parents. N.T., 1/26/12, at 6. Initially, FICS engaged in regular supervised visits. Later, FICS conducted planned and unannounced visits at Mother's residence. Id. at 7. FICS established three major goals for Mother: (1) to promote the healthy growth and development of the Children; (2) to maintain a safe and clean home environment; and (3) for Mother and W.W. to explore and improve their relationship in order to create a stable environment for themselves and the Children.

Incidents involving the Children's health and safety continued to arise throughout the reunification period, during which time Mother worked toward reunification. A FICS caseworker stated that J.M.D. got away from Mother in a public park. N.T., 1/29/13, at 105. In addition, at a doctor's appointment, Mother did not adequately supervise the Children and left them with FICS case workers in order to retrieve a snack for them from her vehicle. N.T., 12/13/12, at 59-63.

During the Children's placement, disagreements developed between W.W. and FICS and CYS personnel concerning the efforts that were being made concerning reunification and W.W.'s refusal to accede to their directives. Id. at 63-64. FICS began to consider W.W.'s vocal disagreements with their directives as safety risks to baby B.W. These disagreements contributed to the agency's position that the Children's permanency goals should be changed from reunification to adoption.

In July of 2012, CYS filed petitions requesting that the permanency goals of the Children be changed from reunification to adoption, which the trial court denied. CYS renewed these petitions before the next permanency hearing. By order on January 30, 2013, the trial court granted CYS's petitions to change the permanency goals of the Children from reunification to adoption.

On February 28, 2013, Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the cases at 400 MDA 2013 and 401 MDA 2013 sua sponte on March 27, 2013.

On appeal, Mother raises the following five issues:
1. Did the Court err, abuse its discretion, and misapply the law when it premised its goal change determination, in part, upon its finding that [M]other had made only "minimal compliance" with the permanency plans for the above-initialed minor children, and had likewise made "no progress" toward alleviating the circumstances which necessitated the original placement of the children, findings which enjoy inadequate support by the facts of record?
2. Did the Court err, abuse its discretion, and misapply the law when it premised its goal change determination upon the finding that reasonable efforts were made by Centre County Children and Youth Services (CYS) to "finalize" the above-initialed children's permanency plans, without a specific finding that reasonable efforts were first made to return the children to their natural mother, thereby prematurely permitting CYS to give up on Mother as a suitable parent for the minor children?
3. Did the Court err, abuse its discretion, and misapply the law by giving excessive focus and weight to impertinent considerations, which did not bear directly upon the health, welfare and safety of the above-initialed minor children, but rather evidenced: (i) a battle of wills and opinions between Mother's fiancé and the county agency and its subagents and (ii) disputable safety hazards which were alleged to potentially endanger Mother's younger daughter and which were inconsequential to, or at least bore an insufficient nexus to, the ultimate "best interests" analysis which the Court should have applied with regard to the above-initialed minor children under the Juvenile Act, where the above-initialed minor children were the only subjects of dependency proceedings and placement with the county agency in this matter?
4. Did the Court err, abuse its discretion, and misapply the law when it premised its goal change determination, in part, upon its finding that Mother failed to accept responsibility for the events surrounding the Court's dependency determination regarding the above-initialed minor children, and their placement in the custody and care of the [c]ounty agency?
5. Did the Court err, abuse its discretion, and misapply the law when it determined that the current placement goal of "return to parent or guardian" is no longer appropriate by failing to apply appropriate legal principles in light of all of the facts of record and failing to give adequate consideration, in particular, to the effects on the children of the severance of the bond between them and Mother?

Mother's Brief at 6-7.

Preliminarily, we review the policy concerns regarding the placement of dependent children. Placement issues regarding dependent children are governed by the Juvenile Act, 42 Pa.C.S.A. §§ 6301-65. As this Court previously has noted:

The policy underlying these statutes is to prevent children from languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. Consistent with this underlying policy, the 1998 amendments to the Juvenile Act, as required by the [federal Adoption and Safe Families Act], place the focus of dependency proceedings, including change of goal proceedings, on the child. Safety, permanency, and well-being of the child must take precedence over all other considerations, including the rights of the parents.

In re N.C. , 909 A.2d 818, 823 (Pa. Super. 2006) (emphasis in original, internal citation omitted).

Section 6351(f) of the Juvenile Act provides that trial courts are required to consider the following statutorily-mandated factors each time the courts conduct a review hearing for a dependent child who has been removed from the parents' home:

the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.

N.C. , 909 A.2d at 823 (internal citations omitted). When a child welfare agency has made reasonable efforts to return a child to the biological parents but those efforts have failed, the agency must then focus its efforts upon placing the child in an adoptive home. Id. When the trial court permits the child welfare agency to change the goal to adoption, the trial court has decided that the agency has provided proper and adequate services to the parents, but that the parents nonetheless are unable to care for the child, so that adoption has become the favored disposition: "[T]he trial court order is the decision that allows the agency to give up on the parent[s]." Id. at 824.

With this understanding, we turn our attention to the appeal before us. In cases involving a change of the placement goal for a dependent child, we review the trial court's decision for an abuse of discretion. In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008). We will find that the trial court abused its discretion only where its judgment was manifestly unreasonable, where it disregarded the law, or where its action was the result of partiality, prejudice, bias or ill will. Id. We are bound by the trial court's factual findings so long as they are supported by the record. N.C. , 909 A.2d at 823.

The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witnesses 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. (internal citations omitted).

In a change of goal proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent's rights are secondary. In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007). The burden is on the Agency to prove that the goal change would be in the child's best interests. In the Interest of D.P., 972 A.2d 1221, 1227 (Pa. Super. 2009).

Mother first argues that the trial court erred in changing the goal from reunification to adoption because she substantially had complied with the requirements set forth by the court in its January 30, 2013 Order, and with the permanency plan, and had made progress toward alleviating the circumstances that necessitated the original placement. Mother's Brief at 18-26.

After a review of the record, the trial court found that Mother failed to comply with the permanency plan in numerous ways. Mother failed to alter her behavior based upon FICS feedback, failed to follow her written visit plan each month, failed to develop an appropriate plan to provide supervision of the Children, failed to supervise the Children at all times in order to make sure that they were safe, and failed to identify and utilize appropriate discipline for the Children. Trial Court Opinion ("T.C.O."), 4/1/13, at 1. The evidence revealed that Mother had made improvement in disciplining the Children, but that she failed "to discuss the issue with the [C]hildren afterwards which confuse[d] them." Id. at 2. Evidence also revealed that Mother was consistently unable "to make decisions without seeking the advice or confirmation from a third party." Id. These crucial decisions included whether to take one of the Children to the emergency room after a doctor recommended that she do so, and whether one of the Children should receive stitches for a wound. Mother also was unable to recall which child had which medical condition, and was overheard at the hospital asking J.M.D., who was two at the time, "[A]re you my bleeder?" Id. The trial court was troubled most by the fact that Mother was "still unable to identify or act upon threats to the [C]hildren, such as choking hazards and sharp objects, and is still unable to appropriately supervise the [C]hildren when they are in her care." Id.

The trial court noted that, although Mother had not left the Children unattended since the incident where J.M.D. was almost hit by a car, she no longer had custody of the Children, and had to attend supervised visits. We conclude that the trial court was within its discretion to find that the Children's welfare would best be served by changing the goal to adoption. As this determination is supported by the record, we will not disturb it on appeal. See N.C. , 909 A.2d at 823.

In her second issue, Mother argues that the trial court failed to make a specific finding that FICS and CYS made reasonable efforts to return the Children to Mother. Mother's Brief at 26-27. After a review of the record, we disagree.

Whether the agency made reasonable efforts is part of what the court must determine in permanency review hearings. 42 Pa.C.S.A. § 6351(f)(5.1). It is also a consideration in goal changes.

When parents have cooperated with the 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 her parents. However, when the child welfare agency has made reasonable efforts to return a foster child to . . . 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 S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (internal citations and quotation marks omitted).

After reviewing all the evidence, the trial court determined that, although Mother and the Children have been receiving services since 2010 from both agencies, she had not been able to move beyond supervised visits. T.C.O. at 2, 5. Mother has had difficulties setting rules and boundaries for the Children during her visits, losing track of one or both of the Children, and allowing them to run away from her because she was not holding their hands or properly supervising them. On multiple occasions, FICS and CYS supervisors had to intervene because the supervisor felt one or both of the Children were in danger. Id. at 2-3.

Since the last permanency review hearing on July 23, 2012, when the trial court denied the requested goal change, services continued to be offered by both agencies without modification. The trial court noted that Mother received over two thousand hours of services in the prior year. In addition, increased efforts were made to ensure that Mother understood what was discussed at each session because Mother argued at the July 23, 2012 permanency hearing that she was not progressing satisfactorily because she did not understand what the agencies asked her to do with regard to the Children. Id. at 5.

FICS and CYS caseworkers testified that, at this stage, Mother still would require almost constant supervision in order to adequately and safely care for the Children. Thus, the court determined that Mother "has clearly reached the limit of her parenting abilities, and is unable to make any further improvements even with additional services." Id. at 3.

Based upon this evidence, we conclude that the trial court was within its discretion to find that the agencies made reasonable efforts to return the Children to Mother. T.C.O. at 5. We reiterate that this Court does not weigh the evidence or determine matters of credibility; rather, we are bound by the trial court's factual findings so long as they are supported by the record. N.C. , 909 A.2d at 823.

In her third issue, Mother contends that the trial court placed excessive focus and weight upon impertinent considerations that did not directly touch on the health, welfare, and safety of the Children, specifically the on-going disagreements between W.W. and FICS and CYS concerning the disputable safety hazards, which were alleged to have endangered baby B.W. Mother also believed FICS focused improperly upon her relationship with W.W., which she contends was not relevant. Mother's Brief at 28-31.

The trial court determined that W.W. constantly demonized FICS, CYS, and the foster parents. The court found that this adversely affected the health, safety, and welfare of the Children in this case, and consistently impeded the reunification efforts. The trial court noted that W.W. had been included in the reunification process as Mother's fiancé, and that goals had been identified for him to complete together with Mother. However, W.W. repeatedly told Mother that FICS and CYS only wanted to alienate her from the Children and that she need not listen to them. T.C.O. at 3. Thus, the trial court determined that W.W.'s refusal to cooperate was impeding the reunification process and should be considered. Id. at 5. In addition, the trial court acknowledged that it also considered hazards concerning baby B.W., such as choking hazards, access to scissors sharp enough to cut hair, and Mother permitting B.W. to climb on furniture and other items without supervision. The trial court noted that it did not consider whether these were safety hazards specific to B.W. Rather, the court found that these hazards were indicative of Mother's inability to recognize or act on dangers to the Children in this case, and her inability to parent the Children without ongoing assistance from other adults. T.C.O. at 6. The trial court's findings are supported by competent evidence of record, and we cannot say that the trial court weighed these findings inappropriately in determining that a goal change was in the Children's best interests. N.C. , 909 A.2d at 823.

In her fourth issue, Mother contends that the trial court erred when it premised its goal change determination, in part, upon its finding that Mother failed to accept responsibility for events surrounding its dependency determination. Mother's Brief at 31-33. At the January 29, 2013 hearing, Mother continued to insist that, although she had entered a guilty plea to the charges of child endangerment, she had not actually left the Children alone because a neighbor was supposed to watch them. In addition, Mother refused to take responsibility for a report that her older son had been left home alone in his high chair while she was outside on the lawn. The trial court found, and evidence confirmed, that Mother was unable to appreciate that her actions place her children at risk of harm. T.C.O. at 7; N.C. , 909 A.2d at 823.

In her final issue, Mother asserts that the trial court did not conduct a comprehensive inquiry or apply the appropriate legal principles in light of the fact that Mother and Children have a bond, and that a goal change is the first step toward termination of parental rights. Mother's Brief at 33-37. The trial court acknowledged that testimony showed that Mother and Children have a bond. Testimony also showed that the Children and their foster parents have a bond. The trial court determined that the Children were increasingly confused by the differences between the structure and rules set up and enforced by the foster parents and the visits with Mother, which lacked structure. In addition, the Children were confused about their relationship with Mother, her fiancé, and the foster parents. After reviewing a plethora of evidence, the trial court found this confusion to be detrimental to the Children's well-being, safety, and mental health. The trial court recognized that Mother loved the Children, but found that Mother has reached the limit of her parenting skills, and is incapable of further improvement. T.C.O. at 7-9. The record supports this determination. Accordingly, we affirm the trial court's decision. N.C. , 909 A.2d at 823.

Orders affirmed.


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