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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: T.M., A MINOR,            IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: G.L.M., JR., FATHER,               No. 961 MDA 2015


               Appeal from the Order Entered April 28, 2015,
         in the Court of Common Pleas of Franklin County, Juvenile
                Division, at No(s): CP-28-DP-0000069-2013

IN RE: T.R.M., A MINOR,                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: G.L.M., JR., FATHER,               No. 963 MDA 2015


               Appeal from the Decree Entered April 27, 2015,
         in the Court of Common Pleas of Franklin County, Juvenile
                      Division, at No(s): 2 Adopt 2015

BEFORE: SHOGAN, JENKINS, and PLATT*, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 05, 2015

     In these related matters, G.L.M., Jr. (“Father”) appeals from the

April 27, 2015 decree and the April 28, 2015 order1 that, respectively,



* Retired Senior Judge specially assigned to the Superior Court.
1
   Pennsylvania Rule of Appellate Procedure 108(b) designates the date of
entry of an order as “the day on which the clerk makes the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis added). See also In re
L.M., 923 A.2d 505, 508 (Pa. Super. 2007) (quoting Frazier v. City of
Philadelphia, 557 Pa. 618, 621-622, 735 A.2d 113, 115 (1999)), for the
proposition that the appeal period has not started to run where there is no
indication on the docket that notice pursuant to Pa.R.C.P. Rule 236(b) has
been given. The trial court’s docket indicates that the permanency review
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granted the petitions filed by the Franklin County Children and Youth Service

(“CYS” or the “Agency”) to terminate Father’s parental rights to his son,

T.R.M. (“Child”), and to change Child’s permanency goal to adoption.       We

affirm the termination decree and the goal change order.

      In its opinion to this Court, the trial court summarized the factual

background and procedural history of this case as follows:

            [Child] was born [in August of 2013], in Chambersburg,
      Pennsylvania.    A.R.M. (“Mother”) is the natural mother of
      [Child,] and G.L.M. (“Father”) is his natural father. [Child] came
      into the care of [the Agency] pursuant to an Emergency Verbal
      Order on September 11, 2013. The placement was a result of
      ongoing concerns the Agency had regarding [Child’s] weight.
      [Child] has remained in the custody of the Agency in foster care
      since the September 11, 2013 placement. On February 11,
      2015, the Agency filed a Petition for the Involuntary Termination
      of Parental Rights (“Petition”) seeking the termination of the
      parental rights of Mother and Father. Concurrently, in the on–
      going dependency action, the Agency requested that this [c]ourt
      change the permanency goal to adoption.               A three-day
      evidentiary hearing was held on February 24, 2015, March 13,
      2015, and April 13, 2015.

Trial Court Opinion, 6/5/15, at 1.

      At the commencement of the February 24, 2015 hearing, Father

requested a continuance because Child’s paternal grandmother (“Paternal

Grandmother”) had applied to become Child’s kinship care placement and

had submitted most of the paperwork. N.T., 2/24/15, at 5. CYS and the

guardian ad litem opposed the request for a continuance because the kinship


order dated April 27, 2015 was served on the parties and their counsel on
April 28, 2015. We have amended the caption accordingly.


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care application process had been ongoing since November of 2013, and the

parties had unnecessarily delayed the application process by failing to

provide the information CYS requested. Id. Counsel for CYS informed the

trial court that the kinship care study process would continue, but in the

meantime, CYS was seeking to terminate Mother’s and Father’s parental

rights to Child and change Child’s placement goal to adoption. Id. The trial

court denied Father’s continuance request “on the basis of a potential

kinship   home   through    Father’s   mother”   because   “[t]hat   process   is

independent of what’s happening here today.” Id. at 5-6. Thereafter, CYS

presented the testimony of Nicole Weller (“Caseworker”), the caseworker for

CYS assigned to Child, and Father testified on his own behalf. Id. at 6–65,

67–96.    At the hearing on March 13, 2015, Mother testified on her own

behalf.   N.T., 3/13/15, at 4–69.       After the record was closed, Mother

requested an additional hearing to correct the record. That hearing was held

on April 13, 2015, during which Mother clarified her previous testimony.

N.T., 4/13/15, at 4–8. Importantly, Father and Mother were incarcerated on

September 30, 2014, for theft charges, and they remained incarcerated at

the time of the hearings.

      As stated above, by decree entered on April 27, 2015, the trial court

terminated Mother’s and Father’s parental rights.     In the decree, the trial

court made findings of fact based on the testimonial and documentary




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evidence it had received.   Decree, 4/27/15, at 1–11.     The trial court also

filed a permanency review order, directing Child to remain in the legal and

physical custody of CYS, in foster care placement, with a goal change to

adoption. Order, 4/28/15. On May 27, 2015, Father filed notices of appeal,

along with concise statements of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).    On June 25, 2015, this Court entered

orders listing the appeals consecutively. Father raises one issue on appeal:

      [Whether t]he trial court erred in not ordering “permanent
      placement with a fit and willing relative” as Father’s other
      children reside with his mother[?]

Father’s Brief, at 4.

      Initially, we note that Father does not challenge the sufficiency of the

evidence supporting the termination of his parental rights pursuant to the

Adoption Act, 23 Pa.C.S. § 2511(a) and (b).2      Rather, Father focuses his

challenge to the decree and the goal change on the trial court’s refusal to




2
  Had Father raised such a challenge, we would conclude that the trial court
appropriately considered all of the factors to be assessed under 23 Pa.C.S.
§ 2511(a)(2), (5), (8), and (b), and that its analysis is consistent with our
Supreme Court’s decisions in In re Adoption of S.P., 47 A.3d 817 (Pa.
2012) (setting forth the standards and scope of review applied to the
involuntary termination of the parental rights pursuant to 23 Pa.C.S.
§ 2511(a)), and In re: T.S.M., 71 A.3d 251 (Pa. 2013) (discussing the
analysis required pursuant to 23 Pa.C.S. § 2511(b)). Decree, 4/27/16, at
11–19.    Further, we would hold that the trial court’s conclusions are
supported by competent evidence in the record. As such, we would find no
abuse of the trial court’s discretion in terminating Father’s parental rights.
Adoption of S.P., 47 A.3d at 826–827.


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order Child’s “permanent placement with a fit and willing relative,” pursuant

to 42 Pa.C.S. § 6351(f.1)(4), namely, Parental Grandmother.

      As discussed below, the term “fit and willing relative” appears in the

Juvenile Code, 42 Pa.C.S. § 6351(f.1)(4). Because placement with a fit and

willing relative is one of the enumerated considerations in determining

permanency, Father’s assertion of the argument in the context of the

involuntary termination of his parental rights is misplaced. The Adoption Act

does not require a trial court presented with an involuntary termination of

parental rights petition to consider placement of a dependent child with a fit

and willing relative.   23 Pa.C.S. § 2511(a) and (b).     Thus, we limit our

review of Father’s argument to the trial court’s goal change order.

             Our standard of review of an order granting permanent
      legal custody is abuse of discretion.

         When reviewing such a decision[,] we are bound by the
         facts as found by the trial court unless they are not
         supported in the record. Furthermore, in a change of goal
         proceeding, the trial court must focus on the child and
         determine the goal in accordance with the child’s best
         interest and not those of his or her parents. At each
         review hearing concerning a child who has been
         adjudicated dependent and removed from the parental
         home, the trial court must consider: 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.




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In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011) (quoting In re A.K., 906

A.2d 596, 599 (Pa. Super. 2006) (citations and brackets omitted)).

     Once the court makes these findings, it must determine whether
     reunification, adoption, or placing the child with a legal guardian
     is best suited to the child’s safety, protection, and physical,
     mental and moral welfare. In re B.S., 861 A.2d 974, 976–[9]77
     (Pa.Super.2004). If the court decides that neither reunification,
     adoption, or [sic] placement with a legal guardian is appropriate,
     the court may place the child with a fit and willing relative. 42
     Pa.C.S.A. § 6351(F.1)(4); see also In re B.S., 861 A.2d at 977.

In re K.J., 27 A.3d at 242.

           These statutory mandates clearly place the trial court’s
     focus on the best interests of the child.

            In addition[, a]lthough bound by the facts as found by the
     trial court and supported by the record, we are not bound by the
     trial court’s inferences, deductions, and conclusions therefrom;
     we must exercise our independent judgment in reviewing the
     court’s determination, as opposed to its findings of fact, and
     must order whatever right and justice dictate. We review for an
     abuse of discretion. Our scope of review, accordingly, is of the
     broadest possible nature. It is this Court’s responsibility to
     ensure that the record represents a comprehensive inquiry and
     that the hearing judge has applied the appropriate legal
     principles to that record. Nevertheless, we accord great weight
     to the court’s fact-finding function because the court is in the
     best position to observe and rule on the credibility of the parties
     and the witnesses.

Id. at 241 (Pa. Super. 2011) (quoting In re A.K., 906 A.2d at 599 (citations

and brackets omitted)).

     We further reiterate:

     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, 532–533 (Pa. Super. 2007). The burden is on the Agency


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      to prove the change in goal would be in the child’s best interests.
      In the Interest of M.B., 674 A.2d 702, 704 (Pa. 1996).

In re M.T., 101 A.3d 1163, 1173 (Pa. Super. 2014).

      Father argues that Paternal Grandmother qualifies as a fit and willing

relative pursuant to section 6351 (f.1)(4) of the Juvenile Code. That section

provides as follows:

      Based upon the determinations made under subsection (f) and
      all relevant evidence presented at the hearing, the court shall
      determine one of the following: . . . (4) If and when the child will
      be placed with a fit and willing relative in cases where return to
      the child’s parent, guardian or custodian, being placed for
      adoption or being placed with a legal custodian is not best suited
      to the safety, protection and physical, mental and moral welfare
      of the child.

42 Pa.C.S. § 6351 (f.1)(4). Father asserts that Paternal Grandparents are

fit, as evidenced by the fact that they care for Child’s four siblings. 3 Father’s

Brief at 9. In support of his position, Father cites Caseworker’s testimony

that CYS would have concern for the three older siblings without the strong

support of Paternal Grandmother.       Id.; N.T., 2/24/15, at 62–63.       Father

further contends that Paternal Grandparents are willing, as evidenced by the

fact that Paternal Grandmother has applied for kinship care. Father’s Brief

at 9; N.T., 2/24/15, at 5.    According to Father, the advantages of placing

Child with Paternal Grandparents include not having to terminate the


3
   Child’s siblings are D.M., age 11; K.M., age 7; A.M., age 4, and J.M., a
newborn. N.T., 2/24/15, at 44. Trial Court Decree, 4/27/15, at 7, ¶ oo.
When Mother gave birth to J.M., she was placed on medical furlough from
prison from December 31, 2014, to January 29, 2015. Id. at ¶ jjj.


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parental rights of the parents; fostering a bond between Child and his

biological family, including Child’s four siblings; and preserving Child’s

cultural identity and heritage. Father’s Brief at 9.

      The trial court explained why it denied placement with Paternal

Grandparents as follows:

            Preliminar[il]y, this [c]ourt would note that it was informed
      by Father’s counsel at the hearing that Paternal Grandmother
      was available as a potential resource for [Child]. It was also
      clear that the Agency was aware that Paternal Grandmother was
      a potential resource for [Child] and that his siblings currently
      resided there. Thus, this [c]ourt did consider this fact when
      evaluating whether or not to terminate Father’s parental rights
      and make a goal change.

             Despite implications otherwise, there is no language in 23
      Pa. C.S. § 2511 that even suggests this Court cannot terminate
      an individual’s parental rights so long as a “fit and willing
      relative” is identified. Similarly, 42 Pa. C.S. § 6351, the statute
      controlling the disposition of dependent children, also features
      no such language. Section 6351 does state in subsection (10)
      that if a sibling is in a different placement this [c]ourt must
      determine whether reasonable efforts have been made to place
      the child and his sibling together or if such joint placement is
      contrary to [the] safety or well-being of the child or sibling. This
      [c]ourt found that the Agency did take reasonable steps to place
      [Child] and his siblings together. However, in this case it was
      clear that removing [Child] from placement with his foster family
      would be contrary to his well-being.          [Child] has been in
      placement with his foster family for all but roughly one month of
      his life. Testimony provided at the hearing illustrated that
      [Child] has developed a significant and loving bond with his
      foster family, who he recognizes as family, and to whom he
      turns for comfort, love, and nurturing.

            As Father does not assert that this [c]ourt’s decision was
      not properly supported by statutory authority, we find it would
      be superfluous to engage in a detailed analysis of each and



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      every element under 23 Pa. C.S. § 2511 and 42 Pa. C.S. § 6351.
      Furthermore, the evidence at the hearing overwhelmingly
      supported termination of Father’s parental rights and a change
      of goal to adoption. Despite the grounds under the statute
      having been clearly and convincingly proven, the [c]ourt takes
      no pleasure in the carrying out of its duty in ordering the
      termination of parental rights and finding the goal of
      reunification no longer appropriate.      Yet, [Child] deserves
      permanency and he is doing well with his foster parents. Father
      may love his children, but love alone is not enough when they
      also need protection, attention and care.

Trial Court Opinion, 6/5/15, at 7–8.

      Our review of the record confirms support for the trial court’s factual

findings. Child has been in placement for all but the initial month of his life.

In total, Child had been in placement for seventeen months at the time the

Petition for Termination of Parental Rights was filed by the Agency. Decree,

4/27/15, at 13; N.T., 2/24/15, at 37.        Father failed to exert himself and

maintain a place of importance in Child’s life even when Father was not

incarcerated. Decree, 4/27/15, at 16; N.T., 2/24/15, at 9, 11–13, 18–33,

39–41, 59–60, 74–81, 84–85, 88–89.            Although Paternal Grandparents

presented themselves as a placement resource, their application process was

not complete at the time of the February 24, 2015 hearing. N.T., 2/24/15,

at 5, 35–36. More importantly, as the trial court found:

      [Child] is thriving in his foster home and looks to his foster
      parents for love, care, and nurturing. They are able to comfort
      and soothe him when he is upset. Most importantly, there
      appears to be a deep loving and emotional bond between the
      foster parents and [Child] one that is reciprocated. [Child] has
      made significant strides in his foster home and his foster parents



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        desire to make him a part of their family. Testimony at the
        hearing suggests that if [Child] recognizes any individuals in his
        life as his parents, it is his foster parents. . . . [Child] deserves
        permanency now and not an undetermined future. His foster
        family is willing to provide that.

Decree, 4/27/15, at 18; N.T., 2/24/15, at 38, 40–43.4

        Exercising our independent judgment in reviewing the trial court’s

legal    conclusion,   we    are   satisfied    that   the   record   represents   a

comprehensive inquiry and that the trial court applied the appropriate legal

principles to that record. In re K.J., 27 A.3d at 241. Having considered all

of the statutory placement options, the trial court determined that adoption

by his foster parents was best suited to Child’s safety, protection, and

physical, mental, and moral welfare.             Moreover, contrary to Father’s

concern, nothing in the record suggests that the goal change would

undermine the fostering of a bond between Child and his biological family,

including his four siblings, or the preservation of Child’s cultural identity and

heritage.

        Thus, we discern no abuse of discretion or error of law in the trial

court’s decision not to place Child with Paternal Grandparents. Accordingly,

we affirm the trial court’s decree involuntarily terminating Father’s parental

rights to Child and its order changing Child’s permanency goal to adoption.



4
   Caseworker testified that the foster parents appropriately address a
medical issue involving Child’s kidneys, hydronephrosis, for which Child is
seen at Hershey Pediatric Urology. N.T., 2/24/15, at 38.


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     Decree and order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/5/2015




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