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In re T.J.J.M.

Superior Court of Pennsylvania

June 13, 2018

IN THE INTEREST OF: T.J.J.M., A MINOR APPEAL OF: C.M., FATHER IN THE INTEREST OF: T.M., A MINOR APPEAL OF: C.M., FATHER

          Appeal from the Order Entered August 4, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000447-2017, CP-51-DP-0002285-2016

          BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM [*] , J.

          OPINION

          OTT, JUDGE

         CM. ("Father") appeals from the August 4, 2017 decree involuntarily terminating his parental rights and the order changing the placement goal to adoption with respect to his female child, T.J.J.M. a/k/a T.M. ("Child"), born in July of 2016.[1] Upon careful review, we vacate and remand in accordance with the following decision.

         Child was born prematurely at 35 weeks gestation, and she had cocaine, opiates, and benzodiazepines in her system. Trial Court Opinion, 11/27/17, at 3; N.T., 8/4/17, at 38-39. She remained hospitalized for approximately three months. N.T., 8/4/17, at 42. Around the time of Child's birth, the apartment where Father and Mother resided sustained property damage due to a flood. Id. at 68-69. Upon Child's discharge from the hospital in October of 2016, Father did not have housing. Id. at 68. The court placed Child in the care of the Department of Human Services ("DHS"). The court adjudicated Child dependent on October 28, 2016, and assigned her the placement goal of reunification. DHS did not request a finding that aggravated circumstances existed as to Father. As such, there is no order attributing aggravated circumstances to him.

         Father was required to satisfy Single Case Plan ("SCP") goals to attend supervised visitation at the office of the Community Umbrella Agency ("CUA"), and to participate in a parenting and housing program. N.T., 8/4/17, at 42. The CUA scheduled weekly visitation for Father with Child. Id. at 43. Father attended three supervised visits after Child's discharge from the hospital in October 2016, which "went pretty well." Id. at 43, 69-70. In October 2016, subsequent to his supervised visits, Father was incarcerated for a probation violation. Id. at 43, 101. Father remained incarcerated for two months. Id. Upon his release, Father was required to reside in a self-help program for 90 days. Id. at 88-89.

         The CUA caseworker's first contact from Father after his release from prison was on February 23, 2017, when he was in the self-help program. Id. at 43. By that time, Father had obtained employment, for which he explained he was on a probationary period for an unspecified amount of time.[2] [3] Id. at 92. Father attended two supervised visits at an unspecified time in 2017, but he did not consistently attend visits thereafter because of his work schedule[4]and his responsibilities and/or restrictions in the self-help program. Id. at 44, 48. Specifically, Father testified that the CUA office was a distance by public transportation of approximately one hour and 45 minutes from his place of employment. Id. at 92. Nevertheless, the CUA caseworker testified that Father stayed in contact with her on "at least [a] monthly" basis. Id. at 45-46.

         To accommodate his work schedule, the CUA scheduled one Saturday visit for Father with Child, and, on June 30, 2017, Father confirmed that he would attend the visit. Id. at 73, 76. However, the visit did not occur because the foster parent was unavailable to bring Child. Id. at 73, 76. There is no evidence that the CUA attempted to accommodate Father's schedule for supervised visits during April, May, or June of 2017. Id. at 77-81. During Father's phone call to the CUA caseworker on June 30, 2017, wherein he confirmed the Saturday visit, Father informed the caseworker that, effective July 17, 2017, his work schedule would change, and that he would be available for supervised visits during the agency's daytime hours. Id. at 46, 78-79.

         With respect to his parenting and housing goals, the CUA referred Father to the Achieving Reunification Center ("ARC") on December 14, 2016. Id. at 48. Father reported to ARC for his orientation meeting on December 20, 2016, but ARC closed his case on February 23, 2017, due to his non-participation. Id. at 48; DHS Exhibit 7.

         On April 19, 2017, DHS filed a petition for the involuntary termination of Father's and Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). On the same date, DHS filed a petition for a goal change to adoption.

         On August 4, 2017, a hearing occurred on the petitions, during which DHS requested termination of Father's parental rights pursuant to Section 2511(a)(1), (2), and (b). DHS presented the testimony of the CUA caseworker, Amanda Mosley. Father testified on his own behalf. Mother did not appear for the hearing, but she was represented by counsel. Child was represented by a Child Advocate and a Guardian Ad Litem ("GAL").

         At the conclusion of the testimonial evidence, counsel for the parties made closing arguments. See N.T., 8/4/17, at 112-121. The GAL stated, in part, "I don't think [Father's] got [sic] a settled intent to abandon the child and I think that he's made some strides towards (inaudible) the dependent issues which brought the case to [c]ourt. So I'm not sure [DHS has] met its burden. And I'd hate to lose the possibility of [him as a] reunification resource. . . ." Id. at 115. Thereafter, the trial court granted the involuntary termination petition on the record in open court pursuant to 23 Pa.C.S. § 2511(a)(1) and (2). Id. at 126. The court did not address Section 2511(b) on the record in terminating Father's parental rights. Further, the court did not dispose of the goal change petition on the record in open court.

         By decree dated and entered on August 4, 2017, the court granted the involuntary termination petition pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). By separate permanency review order dated August 4, 2017, the court changed Child's goal to adoption. Father timely filed a notice of appeal along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte. The trial court filed its Rule 1925(a) opinion on November 27, 2017.[5]

On appeal, Father presents the following issues for our review:

1. Did the [t]rial [c]ourt commit reversible error, when it involuntarily terminated Father's parental rights where such determination was not supported by clear and convincing evidence under the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8)?
2. Did the [t]rial [c]ourt commit reversible error, when it involuntarily terminated Father's parental rights without giving primary consideration to the effect that the termination would have on the . . . developmental, physical and emotional needs of the child as required by the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)?
3. Did the [t]rial [c]ourt commit reversible error, when it terminated Father's parental rights and changed the child's goal to adoption as substantial, sufficient, and credible evidence was presented at the time of trial which would have substantiated denying the [p]etition for [g]oal [c]hange?
4. Did the [t]rial [c]ourt commit reversible error when it involuntarily terminated Father's parental rights and changed the child's goal to adoption where Father was not provided adequate services for a sufficient period of time?

Father's brief at 4.[6]

         We begin with Father's third and fourth issues regarding the goal change order, which we review for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). The Juvenile Act provides that it "shall be interpreted and construed as to effectuate" its purposes. 42 Pa.C.S. § 6301(b). The Juvenile Act's first purpose is "[t]o preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained." 42 Pa.C.S. § 6301(b)(1).

         The Juvenile Act provides that the court shall conduct periodic permanency hearings "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). Specifically, Section 6351(f) provides as follows, in relevant part.

(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.
. . .
(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 . . . 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)(1)-(6), (9) (emphasis added). "These statutory mandates clearly place the trial court's focus on the best interests of the child." In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (citation omitted). "Safety, permanency, and well-being of the child must take precedence over all other considerations." Id. (citation omitted) (emphasis in original). Moreover, the burden is on the child welfare agency "to prove the change in goal would be in the child's best interest." In re D.P., 972 A.2d 1221, 1227 (Pa. Super. 2009).

         Instantly, Father asserts that he was "working full time, " which "was the best way to obtain the stable housing needed for him to be reunited" with Child. Father's brief at 19-20 (citation to record omitted). Father argues that changing Child's placement goal to adoption was against the weight of evidence, as follows.

Despite being in regular contact with the CUA social worker, DHS and CUA failed to offer Father any visits at a time that was compatible with his work schedule. Similarly, Father is willing to attend parenting and housing classes, but was not offered these services at a time compatible with his work schedule. If DHS and CUA worked with Father to establish a consistent visitation schedule and other reunification services that did not conflict with his work schedule he would be able to complete his goals, reunite with [Child] and preserve the family.

Id. at 20 (citations to record omitted). For the following reasons, we are constrained to agree.

         The juvenile court's certified record indicates that the first permanency review hearing occurred on March 9, 2017, which found minimal compliance by Father with the permanency plan. Contrary to Section 6351(f)(5), the order did not include the likely date by which the goal might be achieved. On April 19, 2017, DHS filed the petition for a goal change, which was approximately six months after Child was placed. The next permanency review hearing occurred on June 8, 2017, which maintained the placement goal of reunification, but made no findings with respect to either parent's compliance. Like the first permanency review order, the June 8, 2017 order did not include the likely date by which the goal might be achieved. Thereafter, on August 4, 2017, the goal change/termination hearing occurred, at which time Child was in placement for ten months, less than the statutory 15 - 22 months provided for in Section 6351(f)(9). The August 4, 2017 goal change order found that there was no compliance by Mother with the permanency plan, but omits any finding with respect to Father's compliance.

         During the subject proceedings, Ms. Mosley, the CUA caseworker, testified that Child was placed because Father did not have housing at the time of Child's discharge from the hospital. N.T., 8/4/17, at 68. She testified that Father was appropriate at the visits she supervised, and that the visits "went pretty well." Id. at 69-70. Ms. Mosley testified that Father has been cooperative with her. Id. at 83.

         It is undisputed that Father worked full-time and had maintained communication with Ms. Mosley regarding scheduling supervised visits. There is no evidence that Ms. Mosley attempted to accommodate Father's work schedule more than once, by scheduling a Saturday visit sometime after June 30, 2017, which never occurred because of the unavailability of Child's foster parents. Father testified that his new work schedule gives him off on Fridays. However, he testified that Ms. Mosley told him that the foster parents are only available on Mondays - Wednesdays, which are impossible for him due to his work schedule. Id. at 94-95. Father testified that it would be easier for him to visit with Child if she were placed in kinship care with her maternal aunt, who resides in South Philadelphia.[7] [8] Id. at 95, 97.

         With respect to his parenting and housing goals, the CUA referred Father to ARC on December 14, 2016, four months before filing the petition for the goal change. Father testified that he was in contact with ARC regarding his work schedule, and that he and the agency tried to work around it but had been unsuccessful. Id. at 95. Father testified that he is willing to participate in the required classes. Id.

         Ms. Mosley testified that Child currently receives early intervention services, which includes occupational therapy, and she is under the care of a medical specialist for gastrointestinal issues. Id. at 40. DHS did not present any evidence concerning Child's daily medical needs. As such, DHS did not focus on whether Father is capable of meeting Child's medical needs.[9]

         In sum, the court issued the goal change order when Child had been in placement for approximately ten months, and no likely date had ever been set for the achievement of Child's placement goal. Father participated in three supervised visits immediately after Child's placement and before his incarceration and two visits on an unspecified date after his release from prison. Upon his release, Father secured full-time employment, and he was working to obtain housing and be reunited with Child. Father maintained communication with the CUA caseworker after he secured employment in an attempt to resolve the conflict between his work schedule and the requisite supervised visitation. Likewise, Father communicated with ARC in an attempt to resolve the conflict between his work schedule and the requisite parenting and housing classes. Finally, the record reveals that Child is not placed with a pre-adoptive resource, and that the foster parents are limited in their availability to bring Child to supervised visits. Based on the foregoing, we conclude that the evidence does not support changing Child's placement goal to adoption. Therefore, the trial court abused its discretion in issuing the order, and we are constrained to vacate.

         It follows that we agree with Father's first and second issues on appeal, that the court abused its discretion in terminating his parental rights. We review these issues according to the following standard.

The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).

         In Santosky v. Kramer, 455 U.S. 745, 747-748 (1982), the United States Supreme Court held, "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." In addition, the Court explained:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ...

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