J-S48045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.M.-F., a/k/a             IN THE SUPERIOR COURT OF
A.M.-F., a Minor Adjudicated Child                   PENNSYLVANIA



APPEAL OF: S.F., Natural Father                      No. 340 WDA 2016


              Appeal from the Order entered February 1, 2016,
                in the Court of Common Pleas of Erie County,
                    Domestic Relations, at No.: 64 of 2015

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 22, 2016

     S.F. (“Father”) appeals from the permanency review Order, issued in

response to a request by the Erie County Office of Children and Youth

(“OCY”), changing the permanency goal for his daughter, A.M.-F. (“Child”)

(born in October 2014), to adoption, pursuant to the Juvenile Act, 42

Pa.C.S.A. § 6301, et seq. (“the Act”). We affirm.

     The juvenile court set forth the factual background and procedural

history of this appeal in its March 11, 2016 Opinion (regarding Father),

which we incorporate herein. See Juvenile Court Opinion (Father), 3/11/16,

at 2-6. On February 17, 2016, Father timely filed a Notice of Appeal, along

with a Concise Statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).   The juvenile court then issued a Pa.R.A.P.

1925(a) Opinion.

     On appeal, Father presents the following issues for our review:
J-S48045-16


      1. Whether the Juvenile Court committed an abuse of discretion
      and/or error of law when it made the findings/conclusions that
      [OCY] had established a basis to change the goal to [a]doption
      when it found that there had been minimal compliance with the
      permanency plan[?]

      2. Whether the Juvenile Court committed an abuse of discretion
      and/or error of law when it made the findings/conclusions that
      [OCY] had established that [] Father failed to remedy the
      conditions that led to the placement of … [C]hild[?]

      3. Whether the Juvenile Court committed an abuse of discretion
      and/or error of law when it determined that [] [F]ather did not
      comply with services and the court [O]rder[?]

      4. Whether the Juvenile Court committed an abuse of discretion
      and/or error of law when it concluded that appropriate and
      necessary services were provided to [] [F]ather[?]

      5. Whether the Juvenile Court committed an abuse of discretion
      and/or error of law by failing to consider the entire record in the
      case, when prior permanency review hearings reflected that
      Father was in compliance[?]

Father’s Brief at 5 (capitalization omitted).1

      We first note our standard of review:

      When we review a [juvenile] court’s order to change the
      placement goal for a dependent child to adoption, our standard
      is abuse of discretion. In order to conclude that the [juvenile]
      court abused its discretion, we must determine that the court’s
      judgment was manifestly unreasonable, that the court did not
      apply the law, or that the court’s action was a result of partiality,
      prejudice, bias or ill will, as shown by the record. We are bound
      by the [juvenile] court’s findings of fact that have support in the
      record. The [juvenile] court, not the appellate court, is charged
      with the responsibilities of evaluating credibility of the witnesses
      and resolving any conflicts in the testimony. In carrying out
      these responsibilities, the [juvenile] court is free to believe all,
      part, or none of the evidence. When the [juvenile] court’s

1
  Father stated his issues somewhat differently in his Concise Statement;
nevertheless, we find the issues preserved for review.
                                      -2-
J-S48045-16


      findings are supported by competent evidence of record, we will
      affirm even if the record could also support an opposite result.

In re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007) (citation omitted).

      When considering a petition for goal change for a dependent child

under the Act, the juvenile 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.

Id. at 533 (citing 42 Pa.C.S.A. § 6351(f)).        Moreover, “in matters of

placement for a dependent child, the [juvenile] court must be guided by the

best interests of the child--not those of his or her parents.” In re A.K., 936

A.2d at 533.

      Additionally, Section 6351(f.1) of the Act requires the juvenile court to

make a determination regarding the child’s placement goal:

         (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
            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.

42 Pa.C.S.A. § 6351(f.1)(2).

                                     -3-
J-S48045-16


      We will address Father’s issues simultaneously, as they are related.

Father argues that the juvenile court abused its discretion by changing

Child’s permanency goal to adoption where (1) the evidence established that

Father previously showed some compliance with his permanency plan; (2)

Father remedied the conditions that led to Child’s placement (namely, the

concerns related to his epilepsy); and (3) OCY failed to provide Father with

adequate and appropriate services. See Father’s Brief at 8-13.

      In its Pa.R.A.P. 1925(a) Opinion, the juvenile court aptly discussed the

applicable law in addressing Father’s claims, and determined that (1) his

claims did not establish any abuse of discretion; (2) Father had failed to take

appropriate action to remedy the conditions that led to the placement of

Child; (3) OCY, in fact, provided Father adequate services, but he declined

to utilize those services; and (4) continued, indefinite placement is contrary

to Child’s best interests. See Juvenile Court Opinion (Father), 3/11/16, at

7-10. The juvenile court’s reasoning and determination is supported by the

law and the record, and we thus affirm on this basis with regard to Father’s

issues on appeal. See id. Accordingly, we discern no abuse of discretion by

the juvenile court, and affirm its Order changing Child’s permanency goal to

adoption.

      Order affirmed.




                                     -4-
J-S48045-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2016




                          -5-
                                                                                              Circulated 07/28/2016 12:34 PM




                                                   F11

               -
IN THE INTEREST OF:             {\ :. ~{.-                          IN THE COURT OF COMMONPLEAS
                          k/a ,              r-,                    OF ERIE COUNTY, PENNSYLVANIA
.a                      § I                        t,,            · JUVENILEDIVISION
A minor adjudicateddependent                             ..         NO. 64 of 2015

                            1925(a) OPINION(APPEALOF FATHER)

       On January 29, 2016, an order was entered in a dependency case changing the goal to

adoption for the child, A.F. The father of A.F.,              I   3 I   now challenges the order contending

this court erred in several respects when it eliminated reunification as a goal. 1 The record

supports the finding the change of goal to adoption was established by clear and convincing

evidence and is in the best interests of the child. It is therefore requested the Superior Court:

affirm the order.

                                              ISSUES PRESENTED

        Appellant raises the following issues in his Statement of Errors Complained of on~·::
                                                                                                      '~ ..• 7

Appeal:

        First, this court committed abuse of discretion or an error of law when it made findings

the Appellant had only minimally complied with the permanency plan, specifically regarding

treatment of his epilepsy.

          Second, this court committed abuse of discretion or an error of law when it made findings

the Appellant failed to participate with Healthy Families of America despite evidence to the

 contrary.

          Third, this court committed abuse of discretion or an error of law when it made findings

 the Appellant failed to participate in or schedule a psychiatric evaluation despite evidence to the

 contrary.



 I
   Mother has also appealed the termination order. That appeal is docketed at 292 WDA 2016. The issues she raised
 are addressed in a separate opinion.

                                                              l
       Fourth, this court committed abuse of discretion or an error of law when it made findings

the agency assisted in referrals or services as needed, despite evidence to the contrary.

       Fifth, this court committed abuse of discretion or an error of law when it determined the

Appellant was not making an effort to remedy the conditions that initiated dependency

proceedings and by granting the agency's request to change the goal to adoption after the child

had been in placement for only nine months.

        Sixth, this court committed abuse of discretion or an error of law when it failed to

provide additional time for the Appellant to obtain additional necessary services to facilitate his

compliance with the treatment plan.

        Seventh, this court committed abuse of discretion or an error of law when the court

changed the goal to adoption after failing to consider the status of the July 6, 2015 and October

21, 2015 permanency review hearings.

                            PROCEDURAL HISTORY AND FACTS

        In March 2015, the child was removed from mother's care due to the mother's significant

 cognitive limitations. At the time of the child's removal, the Appellant was not a primary

 caregiver for the child. Since her birth, Appellant had been only minimally involved in the

 child's life. Appellant has epilepsy, and, at the time of the child's removal, received no regular

 medical care to treat his condition for at least one year. Court Summary, 1/25116,p. J.

         On March 25, 2015, the child was adjudicated dependent. Each parent stipulated to the

 facts underlying the basis for adjudication, including the Appellant's minimal involvement with

 the child and untreated epileptic condition. Court Summary, 7/6/15, p. l. A dispositional hearing

 took place on April 22, 2015.




                                                   2
       A permanency review hearing followed on July 6, 2015. At the conclusion of this

hearing, the court ordered that the child remain in foster care. Permanency Review Order, 7/8/15,

p. 2. Appellant, though compliant with the treatment plan, had yet to obtain stable or suitable

housing. Domestic violence between his roommates was still an issue in his current living

arrangements. Appellant was also not medically cleared by his neurologist to provide care for his

daughter unsupervised, though he was receiving medication to control his seizures. Court

Summary, 7/6/15, p. 6. A review was set for ninety (90) days.

        A second permanency review hearing took place October 21, 2015. The court was

troubled by Appellant's new criminal charges, lack of suitable housing, and sporadic

participation with Healthy Families of America. Though the Appellant relocated in September

2015, at the time of the October hearing, he had yet to connect utility services to the home.

Permanency Review Hearing Transcript, 10121/15, p. 12; See also Court Summary, 10121115,

p.5. On several occasions, when the worker went to Appellant's residence to determine its

 suitability for visits, Appellant's roommates would not give the worker access to the home.

 Permanency Review Hearing, 10/21115, p. 21. Due to Appellant's living arrangements,

 visitation was no longer permitted in the home by the agency. Permanency Review Hearing

 Transcript, 10121 I 15, p.12.

         Testimony from the caseworker revealed the Appellant was difficult to contact and that

 Appellant did not reach out for services. Permanency Review Hearing Transcript, 10/21/15,

 p. J 0. He did not have a stable phone and switched phone numbers six times in as few as two

 months preceding the review hearing. Permanency Review Hearing Transcript 10/21/15, p. 19.

 Court Summary, 10/21I 15, p. 7.




                                                   3
       Appellant's neurological condition remained unaddressed. Appellant's caseworker

accompanied him to his last neurological appointment in September 2015. Staff informed the

worker that Appellant was a "noncompliant patient" to the point where they were "thinking of

discharging him from the practice." Since April 2015, the doctor's office ordered Appellant to

complete bloodwork on three separate occasions. Appellant did not follow through with any.

Prior blood level indicated Appellant was not taking his anti-convulsive medication. Permanency

Review Hearing Transcript, I 0121I I 5, p. 11. The neurologist reported significant concerns about

Appellant's ability to successfully and safely parent and care for himself so long as his

neurological condition remained unaddressed. Court Summary 10/21/15, p. 5.

        Though concerned with the Appellant's circumstances and lack of initiative and progress,

the agency felt he deserved more time to remedy the issues, and expressed a desire to continue to

work with the Appellant. Permanency Review Hearing Transcript, 10121/16, p. 9-10. At the

conclusion of this hearing, rather than change the goal to adoption, reunification remained, and a

concurrent goal of adoption was added. A review was set for ninety days.

        A third permanency review hearing took place on January 25, 2016. On this day,

Appellant was also arraigned on several minor misdemeanor criminal charges. The court also

 learned Appellant continued to reside in the home he obtained in September 2015, until January

 4, 2016, without utility services. At this time, he moved to a new residence, with two new

 roommates, whose full names he did not know. Permanency Review Hearing Transcript,

 1/25/16, p. 41.

        Appellant also remained inconsistent with his neurological medication and treatment

 recommendations, and failed to follow through with obtaining a blended case manager to help

 him with his medical care. Permanency Review Hearing Transcript, 1125/16, p. 17. His blood



                                                  4
work over the past year still indicated he had not consistently taken his medication.   Appellant's

caseworker attended a neurology appointment with him on September 30, 2015, and learned

from the doctor that Appellant "persistently   failed to follow through with the recommendations

made to manage his condition."    These facts were also noted at the time of the October hearing.

Court Summary, 1/25/16, p. 8. The agency noted they had been unable to facilitate reunification

because Appellant had not remedied any of the issues leading to the child's adjudication. Court

Summary, 1125/16,p. 5.

        At the time of the January hearing, Appellant had only sporadically participated in

treatment with Healthy Families of America and he still persisted in minimal follow-through. He

missed at least five (5) scheduled visits. At least one of these misses occurred because he was

"having seizures and" was "out of it." Court Summary, 1/25/16, p. 7.

        When Appellant did appear for scheduled visitation, his interactions and bond with the

child were minimal, until the visit prior to the January hearing, when the Appellant believed his

child was going to be put up for adoption. Court Summary, I /25116, p. 8. See also Permanency

Review Hearing Transcript. 1125/16, p. 19.

         Workers again testified it was often hard to reach the Appellant because he did not have

 a stable phone or phone number. At the time of the January hearing, he had changed residences

 at least three times and did not keep the workers updated with his whereabouts. Permanency

 Review Hearing Transcript, 1125/16, p. 15.

         At the time of the hearing in October, the agency required the Appellant to participate in

 a psychiatric evaluation. However, the Appellant neither participated nor scheduled one; nor did

 he obtain a blended case manager.




                                                    5
        After determining   the agency made reasonable efforts to prevent or eliminate the need to

remove the child from the parent, and that the parents' circumstances      remained unchanged, the

agency's request to change the goal to adoption was granted.      Services to both parents were

terminated.   The child was placed in a pre-adoptive home. Permanency Review Order, 1/29116,

p. 2.

        This timely appeal followed.

                                     STANDARD OF REVIEW

        When reviewing an appeal from a decree changing a permanency goal, an appellate court

accepts the findings of fact and credibility determinations of the court if they are supported by

the record. In re R.J. T., 9 A.3d 1179, 1190 (Pa. 2010). An abuse of discretion standard is used

by the appellate court.

        An abuse of discretion is not found if the lower court's judgment was reasonable, the

 court applied the law, and the court's action was not a result of partiality, prejudice, bias, or ill

 will. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the

 lower court's decision, the decree must stand. In re A.K., 936 A.2d 528, 533 (Pa.Super. 2007).

 In a change of goal proceeding, the lower court must focus on the child's best interests, and not

 the interests of the parents. Id. The agency has the burden of proving the change in goal would be

 in the child's best interests. In re MB., 674 A.2d 702, 704 (Pa.Super. 1996).

                                                 DISCUSSION

         The Juvenile Act generally requires the Office of Children and Youth to request a goal

 change when the child has been in placement for fifteen out of twenty-two months. 42 Pa.C.S.

 §6351 (£)(9). Appellant asserts the court committed an abuse of discretion and/or error of law




                                                     6
when it ordered the goal changed to adoption after the child had been in care for ten and a half

months.

       There is nothing in the Juvenile Act, case law, or rules of procedure that prevent an

agency from requesting a goal change sooner than the prescribed fifteen out of twenty-two

month demarcation, nor is there law in Pennsylvania prohibiting the court from ordering the

agency to change the permanency goal at any time it is clear reunification is not viable and

another permanency goal for the child is more appropriate. For example, the Pennsylvania

Superior Court affirmed several lower court orders changing the permanency goal to adoption at

the dispositional phase. See In re D.P., 972 A.2d 1221 (Pa.Super. 2009),· In re M.S., 980 A.2d

612 (Pa.Super. 2009).

          The Superior Court has also held the underlying policy of the Juvenile Act is to curb an

inappropriate focus on protecting the rights of the parents when there is a risk of subjecting

children to indefinite foster care or returning them to abusive homes. In re C.B., 861 A2d. 287,

295 (Pa.Super. 2004). Moreover, safety, permanency, and the well-being of the child must take

precedence over all other considerations, including the rights of the parents. Id. If at any time it is

 clear reunification is not viable, a change of goal to adoption is permitted to facilitate moving the

 child into a safe, permanent, living arrangement.

          Reunification is not an acceptable option in this case. The record demonstrates by clear

 and convincing evidence Appellant's contention the court changed the goal to adoption too

 quickly is without merit. Testimony presented at both the October 2015 and January 2016

 review hearings show Appellant's first, second, third, fourth, and fifth assignments of error,

 insofar as they each attack factual findings, are contradicted by the record.




                                                     7
       Appellant was not compliant with his epilepsy treatment. His inaction and inability to

understand how his condition affected the well-being of his daughter heavily favors the agency's

request to change the goal to adoption. The neurologist considered discharging Appellant from

care due to non-compliance with his medication and request for bloodwork. Court Summary,

1125/16, p. 8; See also Permanency Review Hearing Transcript, 10/21/15, p. 11; Court

Summary, 1125116, p. 8. At no point during these proceedings could the neurologist medically

clear the Appellant in order for him to independently care for his child, especially when,

according to the neurologist, the Appellant appeared unable to care for himself. Given these

facts, it is unclear how Appellant can assert he has been compliant with the portion of his

treatment plan related to his epilepsy treatment.

       Appellant's inability to care for himself is likewise supported by Appellant's inability to

obtain safe and stable housing. Appellant lived in a home from September 2015 thru early

January of 2016 without utilities. He appeared to be in no hurry to remedy this condition, nor

did he appear to understand how lack of suitable housing and choice of roommates affected his

ability to see his daughter. At least one time, Appellant's roommates would not allow agency

workers access to Appellant's home. At his most recent residence, he was unable, or possibly,

unwilling, to give the agency workers the full names of the people with whom he lived. Because

of this, visitation could not occur at Appellant's residence, hindering the agency's attempts to

 reunify the child with the Appellant. Permanency Review Hearing Transcript, 10/21/15, p. 21;

 See also Permanency Review Hearing Transcript, 1125/16, p. 41.

        Testimony further revealed the Appellant failed to participate consistently with Healthy

 Families of America, participate in or schedule a psychiatric evaluation, and follow through with

 additional services made available to him by his caseworkers. His untreated epileptic condition



                                                    8
caused him to miss at least one visit with the child. He reported to his case worker and social

service aid the following day that he missed the meeting because he was "unable to wake

up ... due to 'having seizures and' was 'out of it."' Court Summary, 1125/16, p. 7. This episode,

coupled with at least six other instances where the Appellant missed appointments with Healthy

Families of America show his non-compliance with their program, and further non-compliance

with his over-all treatment plan. Appellant's refusal to take his medication and refusal to

recognize the scope of his illness without question has a severe, detrimental impact on his ability

to parent.

        At the time of the October hearing, Appellant was ordered to participate in a psychiatric

evaluation. It was also recommended he obtain a blended case manager. Appellant completed

neither of these tasks. Court Summary, 1 /25116, p. 7. Both services were recommended by the

agency to help the Appellant meet his own personal needs and frustrations, and because he

appeared to focus more on discussing these issues with the caseworkers than spending time with

his daughter during visitations. Healthy Families of America Program, Service Summary

Report, 1/21116, p.3.

        Appellant additionally contends he was not given enough time to obtain additional

 services and the agency did not refer him to other services as needed. The record contradicts

 him. Appellant's Healthy Families of America worker attempted to assist the Appellant in

 obtaining additional services related to general personal well-being and financial assistance,

 though not "required or delineated in the Healthy Families Program Parameters," but Appellant

 failed to follow through with either obtaining these additional services or obtaining a blended

 case manager. Healthy Families of America Program Service Summary Report, 1/21116, p. 3.




                                                  9
The testimony showed the Appellant was resistant when services were offered and referrals

made. Permanency Review Hearing Transcript, 10/21/15, p. 10.

        It is of no consequence Appellant claims he was unable to reach the caseworkers or

service providers, or that these agencies did not return his phone calls. Appellant continually

passed through a revolving door of residences and numerous phone changes. The changes in his

living situation were often not communicated to the agencies. Permanency Review Hearing

Transcript 10121115, p. 19; See also Permanency Review Hearing Transcript, 1/25/16, p. 15. It

is unclear how the Appellant expected the agency to return his calls or further assist him in

obtaining services or believes he complied with the requirements of Healthy Families of America

when he missed at least half of his appointments with them and was, more often than not, unable

to be contacted due to his own itinerant nature.

         Appellant's actions support the court's conclusion that allowing reunification to remain

as a goal would not serve the child's best interests. Appellant's non-compliance with vital

medical treatment, inability to maintain safe and stable housing, and failure to attend visits with

the child show Appellant could not safely parent the child. The fact that none of the conditions

 that led to the child's placement were remedied after ten and a half months in placement

 demonstrates reunification is no longer a viable goal and would not serve the child's best

 interests.

                                              CONCLUSION

         Appellant has consistently demonstrated he is unwilling to address his mental or physical

 health concerns by complying with his treatment plan, to the detriment of his daughter. Clear

 and convincing evidence exists the best interests of the child would be served by eliminating




                                                   10
reunification as a goal and allowing OCY to proceed to adoption.   It is therefore respectfully

requested this Court affirm the January 29, 2016 Permanency Review Order.

       Dated this /
                      ·(+A day of March, 2016.                       .

                                                      BY THE COURT:




cc:    Kevin C. Jennings, Esq. (OCY)
       Patricia Ambrose, Esq. (GAL)
       Charles Sacco, Esq. (Attorney for Mother)
       Elizabeth Brew Walbridge, Esq. (Attorney for Father)




                                                 11
