J.S15034/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: N.D.B., A MINOR, :            IN THE SUPERIOR COURT OF
                                     :                 PENNSYLVANIA
                                     :
                                     :
APPEAL OF: A.A.B.                    :
                                     :
                                     :            No. 2011 MDA 2013


                Appeal from the Order Entered October 14, 2013
                In the Court of Common Pleas of Centre County
                 Civil Division No(s).: CP-14-DP-0000034-2012

BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 29, 2014



October 14, 2013, in the Centre County Court of Common Pleas, changing



reunification to adoption. Father contends the court erred in changing the



progress in alleviating the conditions which led to the placement, (2) there is

a strong parent                                      ad litem opposed the goal

change.     We remand for the trial court to file a supplemental Pa.R.A.P.

1925(a) opinion addressing the guardian                  opposition to the goal




*
    Former Justice specially assigned to the Superior Court.
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change and we order the guardian ad litem to file a brief with this Court in



      The trial court summarized the facts and procedural posture of this

case as follows:


         been involved with [Father] intermittently since June 10,
         1997, when the agency received a referral due to concerns
         that [Father] had been physically violent with his then
         infant son (A.A.B. born December 22, 1996). A.A.B. was
         placed, through an agreement with his parents, with his
         paternal grandparents. On September 9, 1998, the court
         determined that A.A.B. was no longer dependent, and
         since that time, A.A.B. has continued in the care and

         son, J.M.B., was born on January 31, 1999, and is not in



            [Father] has a significant criminal history. [Father] has
         previously been charged with receiving stolen property,
         burglary, theft by unlawful taking, simple assault,

         use/possession      of   drug    paraphernalia,  recklessly
         endangering another person, fleeing or attempting to elude
         an officer, reckless driving, careless driving, and DUI:
         Controlled Substance. [Father] is currently incarcerated
         for violating his probation on the DUI charge by driving on
         a suspended license.


         mother of [Child]. CYS has been involved with [Mother]
         since the birth of her first child on November 10, 2006,
         and has previously placed her five older children in foster

         involuntarily terminated to her oldest child, D.A., and he
         was adopted on November 20, 2008. Her parental rights
         were involuntarily terminated to her twins, D.H. and H.J.,
         on April 1, 2009, and the twins were adopted on June 24,
         2009. On February 25, 2010, her parental rights were
         involuntarily terminated to Z.N., and Z.N. was adopted on


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           April 16, 2010. On April 3, 2012, her parental rights were
           involuntarily terminated to E.I., her fifth child, and he was
           subsequently adopted on July 3, 2012.

              CYS became involved with the family once again upon
           learning that [Mother] was pregnant with N.D.B. due to

           involvement with the family.      The agency had concerns

           limitations; substandard home conditions including
           overcrowding, an overabundance of pets, atrocious and
           lingering stench of body odor and ammonia, and no
           running water; financial troubles; transportation problems,
           poor parenting skills; relationship problems; and lack of
           cooperation with available support services. [Father and
           Mother] cancelled initial home visits scheduled in May and
           June 2012. After [Father and Mother] failed to appear for
           appointments, the case was closed in June 2012. On
           August 27, 2012, [Mother] contacted CYS and requested
           that a caseworker meet with her and [Father] to develop a
           plan for their unborn son. [Father and Mother] failed to
           appear at the scheduled meeting on September 6, 2012.

           until September 10, 2012. The home visit was scheduled
           for September 11, 2012, but was not completed because
           [Child] was born that day.


           emergency petition for protective custody and ordered that
           [Child] be placed in foster care. The agency took custody
           of [Child] at the hospital.      A hearing was held on
           September 13, 2012. At that time, reunification services
           were initiated with Family Intervention Crisis Services

           from Centre County Base Service Unit, Centre County WIC,
           Catholic Social Services, and Clear Concepts.        On
           September 19, 2012, after a dependency hearing, the
           Court declared [Child] a dependent child under the
           Pennsylvania Juvenile Act at 42 Pa.C.S. § 6302(1),[1]

1
    A dependent child is defined as

            A child who:



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         ordered that [Child] continue to remain in foster care, and
         ordered reunification. At review hearings on December 11,
         2012, March 5, 2013, and April 2, 2013, the court


         goal change hearing scheduled for July 8, 2013 was
         continued to October 14, 2013. On October 14, 2013,


                                                      oward alleviating
         the   circumstances      that    necessitated  the    original
         placement.

Trial Ct. Op., 12/5/13, at 1-3.

      At the hearing on April 2, 2013, Lindsay Schreffler, the CYS

caseworker, testified. N.T., 4/2/13, at 3.2 She indicated that a hearing was

held on March 5, 2013 and continued until April 2, 2013. On April 2nd, CYS



progress in meeting the goals set for them. Id. at 4-



            (1) is without proper parental care or control,
            subsistence, education as required by law, or other care
            or control necessary for his physical, mental, or
            emotional health, or morals. A determination that there
            is a lack of proper parental care or control may be
            based upon evidence of conduct by the parent, guardian
            or other custodian that places the health, safety or
            welfare of the child at risk, including evidence of the
            parent's, guardian's or other custodian's use of alcohol
            or a controlled substance that places the health, safety
            or welfare of the child at risk[.]

42 Pa.C.S. § 6302(1).
2
  We note there are two transcripts in the certified record dated April 2,
2013. Instantly, we refer to the notes of testimony filed of record on
December 13, 2013.



                                         -4-
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a three-month review to ch

Id. at 5. Ms. Schreffler testified as follows:

         [Counsel for CYS]: You wrote that placement was due to

         substandard home conditions including overcrowding, and
         overabundance, atrocious, and lingering stench of body
         odor and ammonia and no running water, financial
         troubles, transportation problems, poor parenting skills,
         relationship problems, and lack of cooperation with
         available support services. I would like to know, since the
         time that you authored this review plan, which I believe

         later, what has transpired that makes those circumstances
         better?

         A: Throughout our work regarding [Child] with [Father and
         Mother], there were no issues as far as far as
         overcrowding in their [ ] home, or the animals. . . .
         However, the other issues as far as the parenting skills,
         concerns about the relationship, and lack of cooperation or
         support services have remained an issue.

                                   *    *    *

         Q: Tell me about [the] house . . . .

         A: . . . I have not been able to see the house during this
         review period.      And neither [Mother] nor [Father]
         contacted me, after leaving a voicemail, to see their home
         prior to court. When I did go to see their home to look
         over the heating issue in March, the heating registers were
         not appropriate that they had in the home. But I am not
         aware they have made those changes.

         Q: What are the circumstances now?          What are the
         circumstances for [Father]?

                                   *    *    *

         A: There were concerns about past anger issues that
         resulted in criminal charges, use of drugs. Also, concerns



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       throughout the reunification process, and a concern
       whether or not he would be able to care for [Child], given
       that he has not provided care for a long period of time for
       his other two children.

                               *    *    *

       Q: You indicated that he has a history as well with regard
       to other children in his care. What does that mean?

       A: That is correct. He does not have custody of either of
       his two children, two sons, [A.A.B.] or [J.M.B.]. . . .

       Q: And why is that?

       A: I believe due to past custody issues and concerns about
       his ability to parent his children.

       Q: There is a history of [Father] having shaken baby
       problems; is that correct?

       A: That is correct. There was a report that he had been
       physically violent with [A.A.B.] back in, I believe, 1997 or


                               *    *    *

       Q: What has changed with respect to [Father]?        If you
       know.

       A: I am not aware of any changes within the last three
       months, if he has attended any of the counseling that was

       received any documentation of attendance or completion
       of any programs.

       Q: How did he do with respect to the opportunity afforded
       to him for reunification services?

       A: He was not compliant with the request of reunification
       services. He did not complete any of the goals that were
       asked of him by that program.         And he was not
       accountable for his behavior as far as drug use or
       parenting inabilities.


                                   -6-
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Id. at 8-9, 10-11, 12-13.

     Father testified at the hearing.

        [Counsel for Father]: When you were involved with [FICS],
        it sounds like you did not get along with the folks that you
        were assigned to?

        A: No.

                                   *    *    *

        Q: Did you ever register any official complaints with the
        FICS supervisors or CYS?

        A: Numerous times.

        Q: What would you tell them?


        the past course of time.

        Q: What specifically about? Did you register complaints
        with CYS and/or with supervisors at FICS about how you
        proceed (sic) or how you felt you were being treated by
        the people assigned to you?


        against the head person I can find, whoever it was. I
        would try to find whoever I could find and file a report and
        complain to them. I did, I complained. I complained to by
        governor and everybody.

        Q: What response, if any, did you get from the FICS
        supervisors about that, about your complaints?



                                   *    *    *

        Q: And despite all that, did you attempt to do your best to
        cooperate and comply with the goals they set for you.



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J. S15034/14

         A: Yes. I did everything they asked. I answered all their

         the questions, I was told I had to answer the questions, I
         answered them anyway.

Id. at 37, 38, 39.

      Sandra K. Richer testified at the hearing on October 14, 2013 that she

works for FICS and provides services for CYS. N.T., 10/14/13, at 49.

         [Counsel for CYS]: You began your services, I believe, in
         May of 2013?



         Q: And your role is after reunification ended as a result of
                                                              sibility
         of supervising visits fell to [CYS]?


         FICS?

         A: Correct.

                                    *    *    *

         Q: You had eight visits?



                                    *    *    *

         Q: Is [Child] old enough to walk at this point?

         A: He walks around the furniture. He pulls himself up, and
         he walks around the furniture.

         Q: What is the response of [Mother and Father] to that?


         especially wants him to be on that blanket. . . .




                                        -8-
J. S15034/14

         Q: Do you see them encouraging [Child] to move around;
         do (sic) see anything other than just the holding of the
         child at these visits?

         A: No.

                                  *    *    *

         [Counsel for Father]: Did [Father] or [Mother] ever
         indicate they wanted [Child] to stay on that blanket
         because of their concern about the condition of the floor?

         A: Yes.

Id. at 49, 57, 59, 74-75.




failure to progress toward alleviating the circumstances that necessitated the



filed a simultaneous statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and the trial court filed a responsive opinion.

      Father raises the following issue for our review:3

            Did the lower court err in changing the placement goal

         Father] continued to make progress towards alleviating the
         conditions which led to the placement of [Child] even after
         formal reunification services had ended, a strong parental-
                                                   ad litem strongly

3
  We note that Father does not provide any legal authority in support of his
argument. See
with citation to, and analysis of, relevant authority waives that issue on
                                   -Penn,Inc., 880 A.2d 1270, 1279 (Pa.
Super. 2005). However, because this defect does not impede our ability to
conduct appellate review, we decline to find waiver.



                                      -9-
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        interests?



standard:

        [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

        Accordingly, we review for an abuse of discretion.

                                 *     *      *

        . . . [A]ppellate courts must employ an abuse of discretion
        standard of review, as we are not in a position to make the
        close calls based on fact-specific determinations. Not only
        are our trial judges observing the parties during the
        hearing, but usually . . . they have presided over several
        other hearings with the same parties and have a
        longitudinal understanding of the case and the best
        interests of the individual child involved. Thus, we must
        defer to the trial judges who see and hear the parties and
        can determine the credibility to be placed on each witness
        and, premised thereon, gauge the likelihood of the success
        of the current permanency plan. Even if an appellate court
        would have made a different conclusion based on the cold
        record, we are not in a position to reweigh the evidence
        and the credibility determinations of the trial court. . . .

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

        As has been often stated, an abuse of discretion does not
        result merely because the reviewing court might have
        reached a different conclusion. Instead, a decision may be
        reversed for an abuse of discretion only upon
        demonstration of manifest unreasonableness, partiality,
        prejudice, bias, or ill-will.

In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (citations omitted).




                                     - 10 -
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      This matter is controlled by the Juvenile Act, 42 Pa.C.S. § 6301 et seq.

When considering a petition for goal change for a dependent child, the trial

court considers:

         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.
         [42 Pa.C.S.A. § 6351(f)].

In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (some citations omitted).

      Additionally, section 6351(f.1) requires the trial court to make a

                                                               tion 6351(f.1)

states, in pertinent part:

         (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:

                                 *     *      *

            (2) If and when the child will be placed for adoption,
            and the county agency will file for termination of

            parent, guardian or 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]

4
 We note Father avers the court erred in failing to consider the parent-child
bond. We need not address this issue because it is not one of the statutory
                                                                         See
42 Pa.C.S. § 6351(f).



                                     - 11 -
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      On the issue of a placement goal change, this Court has stated:



         interest, not on what the parent wants or which goals the
         parent has achieved. See In re Sweeney, 393 Pa. Super.

         is adjudicated dependent . . . the issues of custody and

         best
         of the family is a purpose of [the Juvenile Act], another

         wholesome mental and physical development of children
         coming within the provisions
         §
         child is a status and not a property right, and one in which
         the state has an interest to protect the best interest of the
                  In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263,
         1267 (1983) (citation omitted).

In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).

      The guardian ad litem



duties of a guardian ad litem as follows:

                                         The guardian ad litem shall
         be charged with representation of the legal interests and
         the best interests of the child at every stage of the
         proceedings and shall do all of the following:

            (1) Meet with the child as soon as possible following
            appointment pursuant to section 6337 (relating to
            right to counsel) and on a regular basis thereafter in

            maturity.

            (2) On a timely basis, be given access to relevant
            court and county agency records, reports of
            examination of the parents or other custodian of the



                                    - 12 -
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          child pursuant to this chapter          and   medical,
          psychological and school records.

          (3) Participate in all proceedings, including hearings
          before masters, and administrative hearings and
          reviews to the degree necessary to adequately
          represent the child.

          (4) Conduct such further investigation necessary to
          ascertain the facts.

          (5) Interview potential witnesses, including the
          child's parents, caretakers and foster parents,
          examine and cross-examine witnesses and present
          witnesses and evidence necessary to protect the best
          interests of the child.

          (6) At the earliest possible date, be advised by the
          county agency having legal custody of the child of:

          (i) any plan to relocate the child or modify custody or
          visitation arrangements, including the reasons
          therefor, prior to the relocation or change in custody
          or visitation; and

          (ii) any proceeding, investigation or hearing under
          23 Pa.C.S. Ch. 63 (relating to child protective
          services) or this chapter directly affecting the child.

          (7) Make specific recommendations to the court
          relating to the appropriateness and safety of



          (8) Explain the proceedings to the child to the extent

          and emotional condition.


          extent that they can be ascertained and present to
          the court whatever evidence exists to support the

          or mental and emotional condition of the child,
          determine to the fullest extent possible the wishes of


                                  - 13 -
J. S15034/14

           the child and communicate this information to the
           court. A difference bet
           this paragraph and the recommendations under
           paragraph (7) shall not be considered a conflict of
           interest for the guardian ad litem.

42 Pa.C.S. § 6311(b)(1)-(9) (emphasis added).         A guardian

opinion is advisory. In re Adoption of R.J.S., 889 A.2d 92, 100 n.8 (Pa.

Super. 2005).




                               was given undue weight by the agencies and




                                                                        at the

supervised visits clearly shows that they are capable of parenting [Child]

                          ad litem



     The trial court determined that changing the placement goal from



           Despite the efforts of multiple service providers, [Father
        and Mother] have not made necessary progress to assure
        the Court that it would be safe to return [Child] to their
        care and custody. [Father and Mother] have failed to meet
        the three goals that were set out for them in October 2012

        and meeting his ever-changing developmental needs. The
        three goals were: (1) [Father and Mother] demonstrate the
        ability to take care of [Child]; (2) [Father and Mother] take
        care of themselves, including cooperating with services as


                                   - 14 -
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       recommended; (3) to secure and maintain stable housing
       and manage money carefully.            Over the course of
       reunification, [Father] has failed to progress on these goals
       in large part due to his lack of cooperation with FICS.
       [Father] has demonstrated an unwillingness to learn to
       become a better parent by telling [CYS] workers that they
       were unable to teach him anything, by being
       argumentative, and by being unresponsive to basic
       questions.

          First, [Father and Mother] have failed to show FICS that

       visits when [Child] was an infant, they had difficulty mixing
       his formula properly while preparing his bottles. [Father

       as when he was hungry or needed a diaper change. When
       [Child] graduated to eating whole foods, [Father and
       Mother] continued to feed him baby food for his snack.
       They also regularly brought him an insufficient amount of
       snacks. Neither parent was able to show that they could
       care for [Child] on their own . . . .

           Second [Father and Mother] have shown an inability to
       ta
       part to cooperate with services. Although he continues to
       receive drug and alcohol counseling as well as anger
       management counseling, he has failed to show
       commitment and stability by routinely switching providers.
       [Father] had been working with Clear Concepts for drug
       and alcohol counseling, but quit. He had been working
       with Catholic Social Services for anger management
       issues, but quit. Similarly, [Mother] had been working
                            esource Center, but quit. She has not
       followed through on her commitment to attend counseling
       to deal with previous domestic violence that she has
       experienced. This inability to commit to counseling was
       especially an issue because [Father and Mother] needed to
       demonstrate progress in a short period of time. [Father
       and Mother] have also shown an inability to take care of
       themselves by failing to refrain from criminality. At the
       time of the goal change hearing in October 2013, [Father]
       was incarcerated for driving on a suspended license.
       According to the Child Permanency Plan filed on November



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J. S15034/14

         21, 2013, [Mother] was incarcerated in November 2013 as
         well.

            Third, [Father and Mother] have failed to show FICS
         that they are capable of maintaining a safe home that is
         appropriate for a young child or to manage their money
         carefully.  [Father and Mother] have been unable to
         maintain stable housing because they spend half of the
         week at their home in Pine Glenn, Pennsylvania and half of

         Pennsylvania.    Although caseworkers repeatedly told
         [Father and Mother] that they needed to live in their home
         as though [Child] were there, they would not turn on the
         heat even when the outside temperatures necessitated
         doing so. They installed inappropriate and dangerous heat
         registers and left construction tools and materials
         unsecured throughout the house. . . .


         comply with the three goals set out for them over a year
         ago
         concern for the safety and well-being of [Child] if he were
         to return to their care.

Trial Ct. Op. at 3-5.

      Significantly, we note the trial court failed to address the guardian ad

       opposition to the goal change from reunification to adoption. At the

hearing, the guardian ad litem stated as follows:

            As guardian ad litem for [Child], I would like to voice a
         strong objection to the proposed goal change.

                                                       nd [Mother],


         personality conflicts that probably have been resolved at
         this point, perhaps conflicts between [Father] and
         members of FICS.


         relationship with his parents based upon a personality


                                    - 16 -
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           currently are unfit. I realize they have long histories. I
           realize that they come from circumstances more sad than

           the ability to raise [Child], and I just ask the [c]ourt to
           reinstate reunification services and give them the change


N.T., 10/14/13, at 134-35.

      In spite of the guardian                 unequivocal opposition to the

change of goal from reunification to adoption, the trial court did not address

this factor. Furthermore, we note the guardian ad litem has not filed a brief

in this appeal, despite his position before the trial court.     Although the

guardian              recommendations are advisory, see In Re Adoption of

R.J.S., 889 A.2d at 100 n.8, we remand for the trial court to file, within

thirty days, a supplemental Pa.R.A.P. 1925(a) opinion addressing the

guardian               opposition to the goal change from reunification to

adoption. Further, we order the guardian ad litem to file an appellate brief,



      Case remanded for a supplemental Pa.R.A.P. 1925(a) opinion and

filing of a brief in response thereto by the guardian ad litem.    Jurisdiction

retained.




                                     - 17 -
