J-S03045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.L.J., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: C.J., NATURAL FATHER            :   No. 1482 WDA 2016

               Appeal from the Order Entered September 7, 2016
                  in the Court of Common Pleas of Erie County
                 Domestic Relations at No(s): No. 218 of 2015

BEFORE:      OLSON, SOLANO, and STRASSBURGER*, JJ

MEMORANDUM BY STRASSBURGER, J.:                      FILED FEBRUARY 10, 2017

        C.J. (Father) appeals from the order entered September 7, 2016, in

the Court of Common Pleas of Erie County, which changed the permanency

goal for his minor daughter, A.L.J. (Child), born in July 2015, to adoption.1

After careful review, we affirm.

        The trial court summarized the relevant factual and procedural history

of this matter as follows.

              On September 23, 2015, the Erie County Office of Children
        and Youth ([OCY]) filed an Emergency Protective Order ([EPO])
        Application in regards to … [Child]. Father and D.P. ([Mother])
        were listed as [Child’s] parents. In its EPO Application, OCY
        stated that it had received a referral on September 15, 2015[,]
        from Warren County Children and Youth Services (Warren
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Mother’s parental rights to Child were terminated by consent on September
19, 2016.
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     County CYS]). Father and Mother had an open case in Warren
     County since August 11, 2015[,] and were receiving services.
     Father and Mother moved with [Child] to Erie County on
     September 10, 2015. Warren County indicated Father as a
     perpetrator of physical abuse regarding [Child.] According to the
     EPO Application, in the summer of 2015 Father “had slammed
     [C]hild into his chest and caused visible injury to [C]hild.” As a
     consequence of Father’s actions, Father was charged with simple
     assault and harassment in connection to this incident. As of the
     time of filing the EPO Application, Father was only allowed
     supervised contact with [Child]. OCY alleged that both Mother
     and Father are “limited,” as Father has been diagnosed with
     mental retardation ([MR]) and Mother has been diagnosed with
     Depressive Bipolar Disorder. The EPO also set forth OCY’s
     concern that [] Mother could not adequately supervise Father’s
     time with [C]hild because of her limited mental capacity and the
     fact that she would leave [Child] alone with Father who was
     mandated to only have supervised custody of [C]hild.

           The Honorable Daniel J. Brabender, Jr. issued an EPO on
     September 23, 2015[,] for [Child], finding that removal of
     [Child] was necessary for the welfare and best interest of [Child]
     and that, due to the emergency nature of the removal and safety
     considerations of [C]hild, any lack of services to prevent removal
     were reasonable.     Consequently, [Child] was placed in the
     temporary protective physical and legal custody of OCY.
     Thereafter, [Child] was placed in the [B.] foster home. [C]hild
     was, at this time, two months old. Also, [C]hild has consistently
     presented with special needs to include Gastroesophageal Reflux
     Disease ([GERD]), far sightedness requiring her to wear glasses,
     and developmental delays requiring both “physical and
     occupational” therapy.

           Subsequently, a [s]helter [c]are [h]earing pursuant to 42
     Pa.C.S. § 6332 was held before the Juvenile Master, Carrie
     Munsee, Esquire, on September 24, 2015. Mother stipulated to
     continued shelter care pending an adjudication hearing. The
     Master conducted a colloquy with Father and was not convinced
     that Father was able to represent himself, even though he
     wished to do so, because of Father’s cognitive limitations,
     including [his] MR diagnosis. Out of an abundance of caution,
     the Master secured counsel for Father and he returned the
     following day, September 25, 2015, with counsel.        At this
     hearing, Father stipulated to continued shelter care pending an

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     [a]djudication [h]earing. [Child’s] guardian ad litem, Patricia
     Ambrose, Esquire, was also in agreement.        Master Munsee
     recommended that [Child] remain in the [B.] foster home, which
     was subsequently signed as an [o]rder by the Honorable Robert
     Sambroak on October 1, 2015.

            A [d]ependency [p]etition for [Child] was filed by OCY on
     September 25, 2015. The [d]ependency [p]etition incorporated
     the allegations set forth in the EPO Application. The [p]etition
     continued and recognized that Father had a history with Warren
     County CYS involving [Child] based on Father’s “cognitive
     limitations, physical abuse, lack of supervision, lack of parenting
     skills, and being uncooperative with service providers.” OCY
     further noted that Father continued to reside in the home with
     Mother and [Child and] was often left alone and unsupervised
     with [Child], “despite being court ordered to have no contact
     [with Child] as a condition of his bond.” OCY was additionally
     concerned that Father was unable to safely parent [Child] due to
     his “significant cognitive limitations.”

            An [a]djudicatory [h]earing was held on October 1,
     2015[,] before Master Munsee.       Master Munsee found that
     [C]hild was dependent without proper care or control and
     recommended the continued placement of [Child] in the [B.]
     foster home. This recommendation was subsequently signed as
     an Order by this Court on October 5, 2015.

           A [d]ispositional [h]earing was held before this Court on
     October 28, 2015. At the [d]ispositional [h]earing, [C]hild was
     represented by her guardian ad litem, Emily M. Merski, Esquire.
     Mother was not present, however her attorney, Justin D.
     Panighetti, Esquire, was present.     Father was present and
     represented by Anthony R. Himes, Esquire. OCY caseworker
     Patty Bush was present, as well as OCY solicitor Anthony G.
     Vendetti, Esquire. The [c]ourt incorporated the Court Summary
     into the Record and received testimony from the OCY
     caseworker. At the conclusion of the hearing, the [c]ourt found
     that [Child] was dependent as she was without proper parental
     care or control.     The permanency goal was established as
     “Return to Parent or Guardian.”

                                    ***




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        [C]hild continued to be placed in the [B.] foster home where she
        was being well cared for and her special needs were being met.
        Visitation with the parents was to continue and be increased in
        accordance with the parties’ progress and compliance. A six
        month Permanency Review Hearing was ordered.

              In February 2016, Father pleaded guilty to the simple
        assault of [Child from the summer of 2015.]         Father was
        sentenced on February 19, 2016[,] to a term of incarceration of
        one to two years, with the earliest possible release date being
        February 17, 2017. Additionally and importantly, as a condition
        of his supervision, Father was Court ordered not to have any
        contact with the victim of the assault, [Child]. However, Judge
        Hammond did denote that any contact Father would have with
        [C]hild would be further determined by the Dependency Court.
        Accordingly, Father’s last visit with [C]hild was February 12,
        2016.

Trial Court Opinion, 10/31/2016, at 1-5 (footnotes and citations to the

record omitted).

        The trial court conducted a permanency review hearing on June 27,

2016.     On July 5, 2016, the court entered a permanency review order

changing     Child’s   permanency   goal   from   reunification   to   reunification

concurrent with adoption.     The court conducted an additional permanency

review hearing on August 31, 2016.          On September 7, 2016, the court

entered a permanency review order changing Child’s goal from reunification

concurrent with adoption to adoption only.        Father timely filed a notice of

appeal on September 30, 2016, along with a concise statement of errors

complained of on appeal.

        Father now raises the following claims for our review.

        1. Whether the [trial] court committed an abuse of discretion
        and/or error of law when it determined that [OCY] had presented

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     sufficient evidence as a basis to change the goal to adoption in
     regards to [Father]?

     2. Whether the [trial] court committed an abuse of discretion
     and/or error of law when it determined that [Father] had not
     been compliant with the permanency plan and/or court order?

Father’s brief at 6 (trial court answers and suggested answers omitted)

(unnecessary capitalization omitted).

     We consider Father’s claims mindful of the following.

     [T]he standard of review in dependency cases requires an
     appellate court to accept the findings of fact and credibility
     determinations of the trial court if they are supported by the
     record, but does not require the appellate court to accept the
     lower court’s inferences or conclusions of law. Accordingly, we
     review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

           Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
     when considering a petition for a goal change for a dependent
     child, the juvenile court is to consider, inter alia: (1) the
     continuing necessity for and appropriateness of the placement;
     (2) the extent of compliance with the family service plan; (3) the
     extent of progress made towards alleviating the circumstances
     which    necessitated      the   original placement;     (4)   the
     appropriateness and feasibility of the current placement goal for
     the children; (5) a likely date by which the goal for the child
     might be achieved; (6) the child’s safety; and (7) whether the
     child has been in placement for at least fifteen of the last
     twenty-two months. The best interests of the child, and not the
     interests of the parent, must guide the trial court. As this Court
     has held, a child’s life simply cannot be put on hold in the hope
     that the parent will summon the ability to handle the
     responsibilities of parenting.

In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and

quotation marks omitted).




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      Instantly, Father’s claims on appeal are interrelated, so we address

them together.    Father’s first claim is that OCY failed to present sufficient

evidence to support changing Child’s permanency goal to adoption. Father’s

brief at 15-19. Specifically, Father argues that it was improper for the trial

court to change Child’s goal to adoption following the August 31, 2016

permanency review hearing, given that the court declined to change Child’s

goal to adoption following the prior permanency review hearing on June 27,

2016. Id. Father argues, “There was insufficient testimony and evidence

presented at the final permanency review hearing as it related to any

changed circumstances and/or adoption at that time but not at the prior

permanency review hearings where the same goal was recommended and

requested by [OCY].” Id. at 15. In his second claim, Father argues that the

court abused its discretion by concluding that he failed to comply with Child’s

permanency plan and/or court orders. Id. at 15, 19-23. Father argues that

he completed or began most of his court-ordered services prior to his

incarceration, and that he “remained willing and anticipatory to participate in

further services both while incarcerated and following his release.”      Id. at

15.

      In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court explained

that it changed Child’s permanency goal to adoption “based on Father’s

inability to safely parent [Child], … his admitted assault on [Child], his issues

of anger and hostility, and [because psychologist, Peter von Korff, Ph.D.,

who performed a psychological evaluation of Father,] opined that Father

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would not benefit from further counseling or parenting classes.” Trial Court

Opinion, 10/31/2016, at 12.      The court also emphasized that Child has

resided in same pre-adoptive foster home since she was two months old,

and that this foster home can provide Child with safety, stability, and love.

Id. at 14-15.

      After a thorough review of the record in this matter, we conclude that

the record supports the trial court’s decision to change Child’s permanency

goal to adoption, although our reasoning differs somewhat from that of the

trial court. Initially, we note that the court appears to have misinterpreted

the conclusions contained in Dr. von Korff’s psychological evaluation. In its

opinion, the court indicated that it “glean[ed] from Dr. von Korff’s report

that … Dr. von Korff does not see any benefit for services for Father.” Id. at

7. Our review of Dr. von Korff’s psychological evaluation does not support

this interpretation.   The relevant portion of the psychological evaluation

provides as follows.

             [Father] has been referred for the treatments appropriate
      to his circumstance. The writer sees no benefit to any additional
      services at this time. The client’s progress will be measured by
      his ability to make use of his current treatment program of
      supervised visitations, anger management, and parent-child
      training. The current assessment did not find evidence of a
      super ceding [sic] psychological or psychiatric disorder. Rather,
      the data suggested a chronically inhibited, mildly depressive and
      socially awkward individual who has a great deal of work to do in
      establishing a healthy and productive adult life pattern.

Dr. von Korff’s psychological evaluation, at 10.




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       Thus, it does not appear that Dr. von Korff concluded that providing

Father with services would be futile as the trial court suggests. Instead, Dr.

von Korff concluded that the services Father was receiving were “appropriate

to his circumstance,” and that Father would not benefit from receiving

services in addition to the services that he was already receiving. Id. This

interpretation is further supported by Dr. von Korff’s statement that Father’s

“progress will be measured by his ability to make use of his current

treatment program.” Id.

       Nonetheless, we conclude that the other evidence relied upon by the

trial court more than sufficiently supports its decision to change Child’s

permanency goal to adoption. Most notably, the court emphasized Father’s

struggle to parent Child appropriately during visits prior to his incarceration,

as well as Father’s dismal performance caring for a baby simulator doll. Trial

Court Opinion, 10/31/2016, at 13-14.

       Father’s parenting deficits during visits were detailed in a report

prepared by Erie Homes for Children and Adults, Inc. (EHCA). 2 In its report,

dated February 18, 2016, EHCA explained that Father was “very careless

when handling [Child] and … limited in his overall interactions with her.”


____________________________________________


2
  Neither the EHCA report, nor Dr. von Korff’s psychological evaluation, was
presented to the trial court during the August 31, 2016 permanency review
hearing.     However, the court indicated that these reports would be
incorporated by reference. N.T., 8/31/2016, at 6. The reports are contained
in the certified record as attachments to a court summary.



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EHCA Report, at 1 (unnumbered pages). EHCA staff attempted to improve

Father’s interactions with Child by providing one-on-one instruction and

demonstrations. Id. at 2. While Father would listen to this instruction, and

would participate occasionally, “when left to do some of the tasks

independently, he often wouldn’t at all or would revert back to unsafe

practices.” Id.

      The report provided the following example.

             On one occasion in particular, staff had just exited the
      visitation room after having a lengthy talk with [Father] about
      safe ways to hold [Child] and what not to do that could cause
      harm including excessive rocking or movement that would not
      support her head and neck. As soon as staff left the room,
      [Father] was seen tossing [Child] in the air in an unsafe manner.
      Staff immediately reentered the room and observed [Father]
      holding [Child] in a very awkward position while having a
      stunned look on his face. When staff inquired about why he was
      presenting this way, he asked[ “]Did you see that?” and then
      “Do you see everything[?”] Staff again asked why he was
      presenting this way and he stated “Because I knew it was
      wrong[.”] Staff then asked why he tossed her in the air then if
      he knew it was wrong and he stated “Because I wanted to[.]”
      This type of defiant and unsafe behavior is frequently observed.

Id.

      In addition, the report explained that Father participated in two

simulations using a baby simulator doll on February 5, 2016, and February

12, 2016. Id. Father did “very poorly” during both simulations. Id. During

the first simulation, Father failed to complete any parenting tasks with the

doll, including feeding, rocking, changing, or burping, and scored a -60%.

Id. Most troublingly, Father admitted to EHCA staff that he understood that



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he was to treat the doll exactly as he would treat Child. Id. Despite this

understanding, Father informed EHCA staff that he at one point left the doll

home alone because he “‘didn’t feel like carrying it around town,’” and also

left the doll in a closet because it was crying too much.        Id. Father even

acknowledged that he “struck the doll in the face because it would not stop

crying.”   Id.   While Father performed better during his second simulation

with the doll, he still failed to perform numerous parenting tasks, and scored

only a 32%. Id. at 3. Ultimately, EHCA found that Father “demonstrated

very questionable, dangerous[,] and overall unsafe practices with [Child]

and the real care simulator, so it would not be recommended that any

visitation be increased until he shows improvement.” Id. at 4.

       Thus, it is clear that Child’s best interest would be served by changing

her permanency goal to adoption. While the record reveals that Father was

minimally compliant by participating in services prior to his incarceration,

Father’s severe parenting deficits remained unresolved at the time he began

his   current    period   of   incarceration.    This   was   demonstrated   most

compellingly by Father’s performance with the baby simulator doll. Although

Father knew that he was to treat the doll exactly as he would treat Child, he

failed to care for the doll appropriately and even went so far as to strike the

doll in frustration.      Even after Father is released from incarceration no

sooner than February 2017, it is not clear when, if ever, Father will be

capable of parenting Child safely.       Finally, as observed by the trial court,




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Child has spent nearly her entire life residing in the same pre-adoptive foster

home.

       We also reject Father’s claim that it was improper for the trial court to

change Child’s goal to adoption following the August 31, 2016 permanency

review hearing, given that the court declined to change Child’s goal to

adoption following the prior permanency review hearing on June 27, 2016.

Father does not direct our attention to any authority indicating that a trial

court is prohibited from changing a child’s permanency goal if the court

previously declined to change that goal under the same circumstances. To

the contrary, in the context of a dependency proceeding, the fact that

circumstances have not changed can be an important and compelling reason

to change a child’s goal. In this case, by declining to change Child’s goal to

adoption following the hearing on June 27, 2016, the court provided Father

with an additional two months to demonstrate that he someday will be able

to resolve his parental incapacity and care for Child.       The fact that the

circumstances did not change, and that, therefore, Father’s likelihood of

being able to care for Child did not improve, actually supports the court’s

decision.3
____________________________________________


3
  Father also challenges the trial court’s finding of no compliance with the
permanency plan in the September 6, 2016 order. Specifically, Father
argues that this finding was in error because he had done and was doing
everything possible to comply with the plan despite his incarceration. See
Father’s Brief at 19-23. Despite the fact that Father included this issue in
his concise statement, the trial court did not address it in its opinion.
(Footnote Continued Next Page)


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      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by changing Child’s permanency goal to adoption, and we

affirm the court’s September 7, 2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




                       _______________________
(Footnote Continued)

Nevertheless, we conclude that even if Father had been substantially
compliant with his plan, the trial court could still have found that it was
appropriate to change the goal to adoption under these circumstances where
it was not likely that Father’s ability to parent would improve. See In re
N.C., 909 A.2d 818, 826 (Pa. Super. 2006) (holding that a goal change may
be proper where “there is ample evidence to support the trial court’s factual
finding that Mother’s parenting ability remained problematic, even though
she had substantially completed her permanency plan”).



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