J-S26016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.L., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


APPEAL OF: C.L., MOTHER
                                                    No. 2080 MDA 2014


             Appeal from the Order Entered on November 10, 2014
               In the Court of Common Pleas of Schuylkill County
                 Civil Division at No.: CP-54-DP-0000296-2010


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                             FILED APRIL 23, 2015

       C.L. (“Mother”) appeals the November 10, 2014 order that was

entered following a permanency review hearing. The order changed the goal

for C.L. (“Child”) (born in August 2008) from reunification to adoption with a

concurrent goal of placement with a legal custodian. The order also placed

Child with J.R. (“Aunt”), Child’s maternal aunt, who lives in Utah. We affirm.

       Child came to the attention of the Schuylkill County Children and Youth

Services (“the Agency”) in October 2009 when the Agency received reports

concerning Mother’s mental health, drug use, and parenting ability.1       On

November 17, 2010, the Agency received a report that Delaware County

Children and Youth Services obtained emergency custody of Child following a


____________________________________________


1
     Child’s father’s identity is unknown, although, at a 2013 hearing,
Mother identified the father as “Habib from Syria” with whom she had not
had contact since before Child’s birth.
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report that Mother was living in her car with Child. When Child was taken

into custody, Mother became combative and was hospitalized.

     On November 23, 2010, the Agency filed a dependency petition. On

December 13, 2010, the Schuylkill County Court of Common Pleas entered a

protective order that granted the Agency custody of Child and scheduled a

dependency hearing. At the hearing on December 20, 2010, the court found

that Child was dependent.      The court placed Child in a foster home.

Although Mother initially was uncooperative, she began to make progress in

meeting her goals for reunification.   In January 2011, Aunt, who was in

Utah, contacted the Agency about being a resource for Child, but preferred

to afford Mother the opportunity to regain custody.

     On January 16, 2012, Child was returned to Mother’s care after Mother

had complied substantially with the permanency plan.       Mother had been

successfully discharged both from a partial hospitalization program for her

mental health issues and from drug and alcohol treatment.          However,

Mother continued to receive services with the Agency, and Child remained

dependent. On July 30, 2012, the court terminated the dependency.

     On September 4, 2012, the Agency filed another dependency petition.

The Agency alleged that, on August 29, 2012, it received a referral regarding

Mother’s mental health.     The referral described Mother as delusional,

paranoid, and rambling.    The Agency required police intervention to get

access to assess Child’s safety. Mother was transported to the hospital but

was released after an evaluation.      The Agency obtained an emergency

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custody authorization for Child.           Mother suggested Aunt as a possible

resource for Child, but Aunt suggested other relatives who lived closer to

Mother.     On September 10, 2012, the court again found Child to be

dependent and ordered him to be placed with a foster family.              Also in

September 2012, Mother was arrested in Montgomery County.2

       Aunt again contacted the Agency about being a resource for Child, but

was ruled out due to the distance and concerns about the depth of her

relationship with Child.         However, the Agency initiated phone contact

between Child and Aunt. Despite a lack of initial compliance, on August 12,

2013, Child was returned to Mother’s care. The court found that Mother had

made substantial progress at that time, although the Agency continued in-

home supervision and the court noted that Child “is at imminent risk of

removal from [his] home.” Order, 8/12/2013, at 2. On February 10, 2014,

the court terminated the dependency.

       On July 31, 2014, the Agency filed the dependency petition from which

this appeal stems. The Agency received reports concerning Mother’s mental

health and Child’s safety.       The Agency attempted to assess Child’s safety,

but Mother refused access.         The police were called to assist.   The Agency




____________________________________________


2
     Mother was incarcerated from September 5 through November 9,
2012. She pled guilty to disorderly conduct and received a probationary
sentence.



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received emergency custody of Child. On August 4, 2014, the court found

Child to be dependent and ordered placement with a foster family.

       The trial court summarized the factual record of this dependency as

follows:

       [O]n July 28, 2014, the Agency was again contacted with
       concerns regarding Mother’s mental health, allegations of drug
       use, and an inappropriate person residing in the home, leading
       to further Agency involvement. As a result of those reports,
       police intervention was required and emergency custody of
       [Child] was granted by [the trial court] on July 29, 2014.
       Following the dependency finding of [the trial court] on August
       4, 2014, [Mother] was hospitalized in the behavioral health unit
       at the Schuylkill Medical Center on August 6, 2014, as a result of
       intervention by the Shenandoah Police Department due to
       reports of Mother being disruptive in various businesses, walking
       in town naked, and being suicidal. Some of the conduct leading
       to that hospitalization is outlined in the Affidavit submitted as
       testimony and dated October 29, 2014.[3]            [Mother] was
       discharged from the hospital on August 20, 2014, and diagnosed
       with Major Depressive Disorder, Post-Traumatic Distress
       Disorder, Polysubstance Abuse, and Personality Disorder.
       Discharge instructions included follow-up treatment as well as a
       prescription regimen. Following [Mother’s] discharge from the
       hospital, the Agency caseworker reported that [Mother]
       continued to maintain verbally aggressive actions toward the
       Agency and Court staff, and continued to have racing and
       scattered thoughts.      As noted by the caseworker in that
       Affidavit, [Mother] had no compliance with the permanency plan
       in that she simply refused to participate in Agency services,
       specifically to address her mental health and drug abuse history.

                                        *      *   *


____________________________________________


3
      The trial court noted that, at many of the dependency and review
hearings, “testimonial affidavits” were offered by the Agency caseworkers
and were made part of the record.



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     The requirements of Mother to achieve reunification under the
     service plan were set forth by Caseworker [Marcia] Hoke at the
     hearing of November 10, 2014, as follows: “To submit to random
     drug screens; if recommended, participate in a drug and alcohol
     program; complete a psychological eval (sic); and intake at
     Service Access and Management for case management; engage
     in medication management; counseling; allow access to her
     home; and maintain appropriate contact with [Child].” Due to
     [Mother’s] failure to adequately address any goals of the service
     plan, the Agency filed for a placement review hearing seeking to
     alter the placement plan and change the goal of the original plan
     from reunification to adoption, with a concurrent goal of
     placement with a legal custodian.       That goal change was
     implemented by the Order of November 10, 2014.

     [Child] has been in foster care for 28 months out of his 6 years
     of life.

                                 *    *    *

     The testimony of [Ms. Hoke] at the review hearing of November
     10, 2014, demonstrated that [Mother] had essentially refused to
     comply with any of the identified needs within the service plan.
     This was consistent with the prior testimonial affidavits where
     [Mother] would engage in service while [Child] was in
     placement, [Child] would be returned to [Mother]; however,
     primarily due to mental health issues, conditions for [Child]
     would deteriorate resulting in subsequent placement outside of
     the home. As noted by Ms. Hoke, ongoing efforts were made by
     the Agency to attempt to maintain [Child] in [Mother’s] home,
     and yet non-compliance by [Mother] was the eventual result. As
     reflected by the caseworker[, Mother] would make some
     progress, but it would inevitably be short lived. Ms. Hoke
     testified as to the service plan developed to return [Child] to
     [Mother] . . . but there simply was no compliance with those
     goals. Under cross-examination by [Mother’s] attorney as to the
     issue of drug use, it was instructive that one of the involvements
     in 2014 involved synthetic marijuana use with [Child] in the
     home, although [Mother] did not test positive for drugs. The
     only component of the service plan that Mother engaged in
     involved visitation of [Mother] with [Child]; however, that was
     problematic. Mother refused visits through one referral [agency]
     (Access Services) and when referred to another resource (Family
     Support Unit), visitation was cancelled due to Mother’s cursing
     and being belligerent to staff. On one visit being supervised by

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     the Agency, Mother attempted to remove [Child] from the court-
     ordered custody of the Agency requiring police intervention.

     The testimony of [Mother] confirmed [the trial court’s] belief that
     she is not capable of providing a safe and nurturing environment
     for [Child.     Mother] appeared agitated during questioning,
     disputed that any intervention for any service was required, and
     essentially engaged in an attack on any service provider that
     attempted to provide necessary services. When asked simple
     questions, such as her interaction with [Child] during periods of
     visitation, she would redirect the question and blame others,
     including foster parents, for any problems related to [Child].
     Although she had been diagnosed, and both mental health
     treatment and medication [were] recommended, [Mother]
     insisted that she had already studied psychiatry and that she
     knew that these people were mistaken. Rather than focusing on
     needs she and [Child] might require to direct toward
     reunification, she merely rambled about unsubstantiated reports
     of [Child] in the foster home, and allegations against the Agency
     for not getting her other “son off drugs in Gilbertsville” and use
     of a “power wheel” against Agency workers. When questioned
     about her walking around town without clothing, she talked
     about having a little outfit on, and then moved into police
     violations of her Fourth Amendment right to retreat and
     suggested that the incident was the result of gossip, and
     because she would not sleep with the female neighbor who made
     the report. When questioned about her compliance with mental
     health treatment and following medication requirements, she
     simply dismissed them because her faith does not agree with
     psychiatry.

Trial Court Opinion (“T.C.O.”), 1/12/2015, at 2-6 (citations to record

omitted).

     Aunt was licensed as a foster placement in Utah and had maintained

telephone contact with Child.   On November 10, 2014, the court changed

Child’s goal from reunification with Mother to adoption, with a concurrent

goal of placement with a legal custodian. The court also ordered that Child

be placed with Aunt in Utah.


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      On December 8, 2014, Mother 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). On January 12, 2015, the trial court filed its opinion

pursuant to Pa.R.A.P. 1925(a).

      Mother raises two issues for our review:

      A. Did the trial court err and commit an abuse of discretion when
         it determined that [Child’s] best interest would be served by
         changing the goal from reunification to the concurrent goals
         of adoption and placement with a legal custodian?

      B. Did the trial court err and commit an abuse of discretion when
         it determined that the best placement for [Child] was with
         [Aunt] in Utah, even though contact with Mother would be
         almost impossible?

Mother’s Brief at 3.   Because the issues are necessarily intertwined, we

consider them together.

      Our standard of review in dependency cases requires us to review the

trial court’s decision for an abuse of discretion.    We must “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record,” but we need not accept “the lower court’s

inferences or conclusions of law.”   In re R.J.T., 9 A.3d 1179, 1190 (Pa.

2010).   Further, “[s]afety, permanency, and well-being of the child must

take precedence over all other considerations.” In re S.B., 943 A.2d 973,

978 (Pa. Super. 2008) (quoting In re N.C., 909 A.2d 818, 823 (Pa. Super.

2006)) (emphasis in original).   “In a change of goal proceeding, the best

interests of the child, and not the interests of the parent, must guide the



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trial court, and the parent’s rights are secondary.”    In re D.P., 972 A.2d

1221, 1227 (Pa. Super. 2009).

     The relevant statute provides in pertinent part:

     (a) General rule.--If the child is found to be a dependent child
     the court may make any of the following orders of disposition
     best suited to the safety, protection and physical, mental, and
     moral welfare of the child:

                                  *    *    *

        (2) Subject to conditions and limitations as the court
        prescribes transfer temporary legal custody to any of the
        following:

           (i) Any individual resident within or without this
           Commonwealth, including any relative, who, after
           study by the probation officer or other person or
           agency designated by the court, is found by the
           court to be qualified to receive and care for the child.

           (ii) An agency or other private organization licensed
           or otherwise authorized by law to receive and
           provide care for the child.

           (iii) A public agency authorized by law to receive and
           provide care for the child.

                                  *    *    *

     (e) Permanency hearings.--

        (1) The court shall 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. . . .

                                  *    *    *

     (f) Matters to be determined at permanency hearing.-- At
     each permanency hearing, a court shall determine all of the
     following:


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       (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.

       (7) If the child has been placed outside the
       Commonwealth, whether the placement continues to be
       best suited to the safety, protection and physical, mental
       and moral welfare of the child.

                                *    *    *

       (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 unless:

          (i) the child is being cared for by a relative best
          suited to the physical, mental and moral welfare of
          the child;

          (ii) the county agency has documented a compelling
          reason for determining that filing a petition to
          terminate parental rights would not serve the needs
          and welfare of the child; or


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          (iii) the child’s family has not been provided with
          necessary services to achieve the safe return to the
          child’s parent, guardian or custodian within the time
          frames set forth in the permanency plan.

                                *     *      *

     (f.1)     Additional    determination.--Based        upon    the
     determinations made under subsection (f) and all relevant
     evidence presented at the hearing, the court shall determine one
     of the following:

       (1) If and when the child will be returned to the child’s
       parent, guardian or custodian in cases where the return of
       the child is best suited to the safety, protection and
       physical, mental and moral welfare of the child.

       (2) If and when the child will be placed for adoption, and
       the county agency will file for termination of parental
       rights in cases where return to the child’s parent, guardian
       or custodian is not best suited to the safety, protection and
       physical, mental and moral welfare of the child.

       (3) If and when the child will be placed with a legal
       custodian in cases where the return to the child’s parent,
       guardian or custodian or being placed for adoption is not
       best suited to the safety, protection and physical, mental
       and moral welfare of the child.

       (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.

       (5) If and when the child will be placed in another living
       arrangement intended to be permanent in nature which is
       approved by the court in cases where the county agency
       has documented a compelling reason that it would not be
       best suited to the safety, protection and physical, mental
       and moral welfare of the child to be returned to the child’s
       parent, guardian or custodian, to be placed for adoption, to
       be placed with a legal custodian or to be placed with a fit
       and willing relative.



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42 Pa.C.S.A. § 6351.

      When the court allows CYS to change the goal to adoption, it has
      decided “CYS has provided adequate services to the parent but
      that he/she is nonetheless incapable of caring for the child and
      that, therefore, adoption is now the favored disposition.” In re
      A.L.D., 797 A.2d 326, 339 (Pa. Super. 2002).

In re S.B., 943 A.2d at 978.

      Mother argues that the trial court erred in changing the goal to

adoption when Child had been in foster care only for three months and the

previous two times Child had been in care, Child was returned to Mother.

Mother also argues that there were other placement options besides Aunt

that would have permitted reunification to remain the goal.              Mother

contends that it is not in Child’s best interest for the court to limit contact

with Mother, as the Utah move would require. Mother’s Brief at 9-12.

      At a permanency hearing, the court must determine whether the

current placement continues to be best-suited for the child’s needs and

interests.   42 Pa.C.S.A. § 6351(e).    The court must consider the progress

toward alleviating the circumstances that led to placement and the

appropriateness of the current goal for the child.     42 Pa.C.S.A. § 6351(f).

Although the court is required to consider whether termination of parental

rights should be filed if the child has been in placement fifteen out of the last

twenty-two months, see 42 Pa.C.S.A. § 6351(f)(9), there is no specified

amount of time that a court must give a parent before a goal change may be

considered.



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       Here, the trial court properly considered that, although Child had only

been in placement three months during the current dependency, Child had

been in placement a total of twenty-eight months since December of 2010.

The history of the case demonstrated that, while Mother might make

progress, she was unable to sustain that progress, and Child has been

returned repeatedly to the Agency’s care after short periods in Mother’s

custody. The court also considered Ms. Hoke’s testimony that Mother was

not complying with the service plan, and that Mother’s visitation with Child

was difficult and included an incident when Mother attempted to remove

Child from the Agency. Further, the record supports the trial court’s finding

that Mother was not capable of caring for Child.     Mother’s testimony was

rambling, inconsistent, and sometimes incoherent.4

____________________________________________


4
      For example, in explaining the incident in which she was accused of
walking around town without clothes, Mother offered the following
testimony:

       I know exactly where that came from, a gossiper who has
       connections with the police because she’s the one who was
       gossiping with him while they tried to falsely commit me the last
       time they took my son illegally without allowing me to have my
       Fourth Amendment rights to retreat into my home for safety for
       my family.

Notes of Testimony, 11/10/2014, at 28. When explaining why she was no
longer seeing her therapist, Mother stated:

       Whatever the police told her, [the therapist] has stopped seeing
       me. But she did say that I was able to work, which is why I
       reopened my business, Crystal’s Spirit Shop of reading tarot
(Footnote Continued Next Page)


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      The statute contemplates that a child may be placed with a relative

who is qualified to care for the child. 42 Pa.C.S.A. § 6351(a)(2)(i). Based

upon the findings that the court makes at a permanency review, the court

shall determine whether the goal should remain reunification or change to

adoption or placement with a legal custodian. 42 Pa.C.S.A. § 6351(f.1).

      Although the Agency was concerned about the depth of relationship

between Aunt and Child, the Agency now is satisfied with that relationship.

Ms. Hoke testified that she had observed phone contact between Aunt and

Child, and that Child was comfortable with Aunt.              Notes of Testimony

(“N.T.”), 11/10/2014, at 10-11.              Further, Ms. Hoke opined that Child

understood that he would be living with Aunt and what the move to Utah

would entail.    Id. at 11-12.        Child believed that he would like living with

Aunt. Id. at 11.

      Given the record, the trial court did not abuse its discretion in

determining that Mother was unable to care for Child and that the current

goal of reunification was no longer in Child’s best interest.          Child’s best

interest is paramount in this determination.         See D.P., 972 A.2d at 1227.

Here, Mother repeatedly has made progress, only to revert to the behaviors

that have caused Child to become dependent.               Mother has refused the

                       _______________________
(Footnote Continued)

      cards and such and I have had it used against me, my religion
      which no one knows what it is because I haven’t decided yet.

Id. at 29-30.



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Agency’s assistance.       The record makes clear that Mother’s mental health

problems remain untreated. Aunt has offered herself as a resource for Child,

has developed a relationship with Child, and has become a licensed foster

parent.   Aunt offers Child stability and permanency that Mother has been

unable to provide. Thus, the trial court did not abuse its discretion in putting

Child’s best interests first in changing Child’s placement goal and in ordering

Child to live with Aunt.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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