J-S79002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.M. AND A.M.,       :     IN THE SUPERIOR COURT OF
MINOR CHILDREN                           :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: M.P.M., FATHER                :         No. 1095 EDA 2016

                   Appeal from the Order March 3, 2016
             In the Court of Common Pleas of Chester County
            Orphans’ Court at No(s): CP-15-DP-0000052-2013;
                         CP-15-DP-0000053-2013


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                  FILED NOVEMBER 15, 2016

     Appellant, M.P.M. (“Father”), appeals from the order entered in the

Chester County Court of Common Pleas Orphans’ Court, which granted the

goal change petition filed by the Chester County Department of Children,

Youth and Families (“CYF”), with respect to his minor children, C.M. and A.M.

(“Children”). We affirm.

     The relevant facts and procedural history of this case are as follows.

Father and A.B. (“Mother”) are the parents of Children.      After receiving

reports of poor living conditions and insufficient parental supervision with

respect to Children, CYF filed a dependency petition on June 14, 2013. The

court held a dependency hearing on July 8, 2013, and subsequently

adjudicated Children dependent. As a result, CYF placed Children in foster

care. The court held numerous permanency review hearings between July

2013 and March 2016, which Father often failed to attend due to his
J-S79002-16


intermittent incarcerated status.   At these hearings, the court regularly

determined that Father demonstrated minimal or no compliance with his

permanency plan.    The court also frequently found that Father had made

minimal or no progress toward alleviating the circumstances that led to

placement. CYF often reported lack of contact with Father.

     At a permanency review hearing on December 15, 2015, CYF asked

the court to change the permanency plan goal from reunification to

adoption. Father did not participate in the hearing due to a malfunction with

the video conference equipment.      Nevertheless, the court changed the

permanency plan goal to adoption at the conclusion of the hearing.        On

February 9, 2016, CYF filed a petition to terminate Mother’s and Father’s

parental rights to Children.   The court held another permanency review

hearing on March 3, 2016, where Father asked the court to vacate its

December 15, 2015 goal change to adoption.       The court granted Father’s

motion and revisited the goal change issue.       After the presentation of

testimony by CYF and Father, the court again changed the permanency plan

goal from reunification to adoption. On April 1, 2016, Father timely filed a

pro se notice of appeal, which the court forwarded to counsel. Counsel filed

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b) on April 13, 2016.1


1
  See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (explaining in
Children’s Fast Track cases, appellant’s failure to file concise statement
contemporaneously with notice of appeal does not divest this Court of
                                    -2-
J-S79002-16


      Father raises the following issue for our review:

         DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
         CHANGED THE GOAL FROM REUNIFICATION TO ADOPTION
         WHEN THE TESTIMONY/EVIDENCE PRESENTED TO THE
         TRIAL COURT ON MARCH 3, 2016 DID NOT SUPPORT A
         FINDING BY CLEAR AND CONVINCING EVIDENCE THAT A
         GOAL CHANGE WAS IN THE BEST INTERESTS OF THE
         CHILDREN?

(Father’s Brief at 4).

      On appeal, goal change decisions are subject to an abuse of discretion

standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).

         In order to conclude that the trial 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 trial court’s findings of fact that have support
         in the record. The trial court, not the appellate court, is
         charged with the responsibilities of evaluating credibility of
         the witness and resolving any conflicts in the testimony.
         In carrying out these responsibilities, the trial court is free
         to believe all, part, or none of the evidence. When the
         trial court’s findings are supported by competent evidence
         of record, we will affirm, even if the record could also
         support an opposite result.

Id. at 822–23 (internal citations omitted).

      The Juvenile Act controls the disposition of dependent children. In re

R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008).          Section 6351 provides in



jurisdiction, but it results in defective notice of appeal to be disposed of on
case by case basis; general waiver analysis for failure to file court-ordered
Rule 1925(b) statement does not apply in context of noncompliance with
Rule 1925(a)(2)(i); allowing concise statement filed shortly after notice of
appeal where noncompliance with Rule 1925(a)(2)(i) caused no prejudice to
parties).
                                      -3-
J-S79002-16


relevant part:

         § 6351. Disposition of dependent child

                                 *    *    *

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

            (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.

                                 *    *    *

            (9) If the child have 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

                                     -4-
J-S79002-16


          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

              (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

                                    -5-
J-S79002-16


            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.

                                   *    *    *

         (f.2) Evidence.—Evidence of conduct by the parent that
         places the health, safety or welfare of the child at risk,
         including evidence of use of alcohol or a controlled
         substance that places the health, safety or welfare of the
         child at risk, shall be presented to the court by the county
         agency or any other party at any disposition or
         permanency hearing whether or not the conduct was the
         basis for the determination of dependency.

         (g) Court Order.—On the basis of the determination
         made under subsection (f.1), the court shall order the
         continuation, modification or termination of placement or
         other disposition which is best suited to the safety,
         protection and physical, mental and moral welfare of the
         child.

42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).

      “When the child welfare agency has made reasonable efforts to return

a [dependent] child to his or her biological parent, but those efforts have

failed, then the agency must redirect its efforts towards placing the child in

an adoptive home.” In re N.C., supra at 823.

         Although the agency has the burden to show a goal change
         would serve the child’s best interests, “[s]afety,
         permanency, and well-being of the child must take
         precedence over all other considerations” under Section
         6351. In re D.P., 972 A.2d 1221, [1230] (Pa.Super.
         2009), appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009)
         (emphasis in original); In re S.B., 943 A.2d 973, 978
         (Pa.Super. 2008), appeal denied, 598 Pa. 782, 959 A.2d
         320 (2008). “[T]he parent’s rights are secondary” in a
         goal change proceeding. In re D.P., supra [at 1227].

                                       -6-
J-S79002-16



         Because the focus is on the child’s best interests, a goal
         change to adoption might be appropriate, even when a
         parent substantially complies with a reunification plan. In
         re N.C., supra at 826-27.         Where a parent’s “skills,
         including her judgment with regard to the emotional well-
         being of her children, remain problematic[,]” a goal change
         to adoption might be appropriate, regardless of the
         parent’s compliance with a permanency plan. Id. at 825.
         The agency is not required to offer services indefinitely,
         where a parent is unable to properly apply the instruction
         provided. In re A.L.D., 797 A.2d 326, 340 (Pa.Super.
         2002). See also In re S.B., supra at 981 (giving priority
         to child’s safety and stability, despite parent’s substantial
         compliance with permanency plan); In re A.P., 728 A.2d
         375, 379 (Pa.Super. 1999), appeal denied, 560 Pa. 693,
         743 A.2d 912 (1999) (holding where, despite willingness,
         parent cannot meet “irreducible minimum parental
         responsibilities, the needs of the child must prevail over
         the rights of the parent”). Thus, even where the parent
         makes earnest efforts, the “court cannot and will not
         subordinate indefinitely a child’s need for permanence and
         stability to a parent’s claims of progress and hope for the
         future.” In re Adoption of R.J.S., 901 A.2d 502, 513
         (Pa.Super. 2006).

In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010), appeal denied, 608 Pa.

648, 12 A.3d 372 (2010).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Ann Marie

Wheatcraft, we conclude Father’s issue on appeal merits no relief.        The

Orphans’ court opinion fully discusses and properly disposes of the question

presented.    (See Orphans’ Court Opinion, filed May 11, 2016, at 3-6)

(finding: Children have been in foster care for almost three years and

reunification has been goal for Children since 2013; during this time, neither


                                     -7-
J-S79002-16


Father nor Mother made any measurable progress toward reunification goal;

while    Father   has   participated   in   drug,   alcohol,   and   mental   health

evaluations, his incarcerated status limits his participation in other services;

significantly, Father was immediately re-arrested and incarcerated after his

release from custody in 2015; instead of meaningfully participating with CYF

to reach reunification goal, Father chose to reoffend; court finds it unlikely

that Father will be able to maintain progress he made while incarcerated,

when he is ultimately released from custody; Father’s release date remains

uncertain, and Father’s incarceration impacts his ability to parent Children in

practical ways; importantly, Father’s ability to care for Children after release

from custody will not be immediate because Father will be released to

halfway house; additionally, Father will have to procure employment and

suitable housing before he will be available as resource for Children;

Children have already spent too much time in foster care, and evidence

presented at March 3, 2016 permanency review hearing demonstrated

reunification is not best suited to Children’s safety, protection, and physical,

mental, and moral welfare; Children’s best interest dictates no further

exposure to uncertainty of foster care placement in hopes that Father will

gain his freedom and be able to care for Children; thus, goal change to

adoption was appropriate).       Accordingly, we affirm on the basis of the

Orphans’ court opinion.

        Order affirmed.


                                        -8-
J-S79002-16

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




                          -9-
                                                                                                             Circulated 11/01/2016 02:07 PM




                                          IN THE INTEREST OF:                         IN THE COURT OF COMMON PLEAS
                                                                                      CHESTER COUNTY, PENNSYLVANIA
                                                 C.M.,
                                                                                      DOCKET NO: CP-15-DP-000052-2013
                                                A MINOR
                                                                                      No. 1095 EDA 2016


                                          IN THE INTEREST OF:                         IN THE COURT OF COMMON PLEAS
                                                                                      CHESTER COUNTY, PENNSYLVANIA
                                                 A.M.,
                                                                                      DOCKET NO: CP-15-DP-000053-2013
                                                A MINOR
                                                                                      No. 1095 EDA 2016


                                                                                                                          I·;/J-,
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             (''")
             t<~.     WBe,ATCRAFT                                                                               MAY               2016
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                        :...,(L.
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                        (.:.) (..)
                                                                 1925(a) OPINION
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     o                  t:;O M .P. M. ( 11 father 11)        .   ) is the biological father of                          \vi .
     w                 :-:.:::   ~~.. .          .


     o:: :                                and                                    1•   Each child was adjudicated dependent

                 on July 8, 2013. Father filed an Appeal from the Orders entered on March 3, 2016

                 granting the Chester County Department of Children, Youth and Families' ("CYF")

                 request for a goal change from reunification to a new permanent placement goal,

                 adoption.

                                                          PROCEDURAL BACKGROUND

                                   After two years before a hearing officer, this case was transferred from the

                 hearing officer to this Common Pleas Court Judge at the request of Father in August

                 2015. A Permanency Review Hearing took place before this jurist on September 17,

                 2015. Since that time, there have been two Permanency Review Hearings before this

                 Court, December 15, 2015 and March 3, 2016. Father was represented by new


                 1
                     Father is not A,M,'~"blological" father, but has accepted paternity of   />,..\'II\,.

                                                                                                                                Page 1 of 6




                                                                                                                                      /\
counsef at the March 3, 2016, John OiSantis, Esquire. On March 14, 2016, Father filed

this present Appeal pro se3.

       These children have been involved with CYF continuously since this case was

opened on March 7, 2013. At that time, biological mother,                            ("Mother"),

had full custody of the children due to father's incarceration in February 2013. Prior to

Father's incarceration,   Father had primary custody of the children and Mother had

limited visitation. (CYF Petition, 06/14/13).

       In March 2013, Mother reported to CYF that prior to her taking full custody of the

children, Father was intoxicated and smoked weed while the children were in his care.

Upon further investigation, CYF determined that Mother was facing pending criminal

charges and had a possible outstanding warrant. Mother had also recently tested

positive for cocaine use. CYF immediately began to provide services to Mother and the

children, but the children continued to be in an unsafe environment due to Mother's

continuing illegal drug use and her inability to provide the supervision necessary for the

safety and welfare of her children. Id. On July 8, 2013, the children were adjudicated

dependent and placed in foster care.




2
    Father had been previously represented by Ira D. Binder, Esquire. Upon Father's request,
new counsel was appointed February 23, 2016.
3
    Pursuant to 210 Pa. Code§ 65.24, Father's Pro Se Appeal was filed and forwarded to
Father's attorney, Mr. DiSantis. Mr. DiSantis noted that Father did not file a Statement of
Matters Complained of on Appeal ("the Statement") with the Pro Se Appeal as required by the
Appellate Rules. Mr. DiSantis filed the Statement on Father's behalf on April 13, 2016. Father
filed a prose Statement on April 22, 2016. We shall consider the first Statement filed by Mr.
DiSantis as counsel of record for Father. (Commonwealth v. Ellis, 626 A.2d 1137 (Pa; 1993),
hybrid representation is not permitted on appeal.)). Moreover, Father has not objected to Mr.
 DiSantis's representation.
                                                                                        Page 2 of 6
                                    ERRORS ON APPEAL

          Father presents four errors.4 For the purpose of legal analysis and discussion, we

construe Father's objection as follows:

     1. The court abused its discretion in changing the goal for the children

          from reunification to adoption when the evidence showed such a

          determination was not in the best interests of the children and went

          against the evidence presented, i.e.:

             a. Father made progress and cooperated to the best of his ability with CYF

                while incarcerated; and


             b. Father was not afforded adequate services.


                                     SCOPE OF REVIEW

          This matter is governed by the Juvenile Act (42 Pa.C.S.A. §6301, et seq.). Th

Superior Court's scope of review is limited to an abuse of discretion standard. The

Superior Court is bound by the facts as found by this Court and the determination made

unless they are not supported in the record. In re A.P., 728 A.2d 375, 378 (Pa.Super.

1999); In the Interest of C.J.R., 782 A.2d 568, 569-70 (Pa.Super. 2001 ).

                                          DISCUSSION

          The . purpose of the Juvenile Act is to promote permanence for children in the

foster care system, and minimize "foster care drift" by expediting permanent placement.

It is extremely important to move a child toward a family-based placement such a

permanent legal custodianship, kinship care, or open adoptions when reunification is



4
    Id.
                                                                                    Page 3 of 6
unsuitable. Our main concern is always to prevent dependent children from languishing

indefinitely in foster care.   C.. \V\.   and A.tJI. have been in foster care for almost thre

years. In considering a change of goal from reunification to adoption, we focused o

what is in the best interests of these children and not the best interests of their Father.

The safety, permanency, and well-being of the children take precedence over all othe

considerations, including Father's parental rights. 42 Pa.C.S.A. § 6351(g); In re G.P.-R.,

851 A.2d 967, 973 (Pa.Super. 2004).

       The Juvenile Act sets forth certain options available to the courts for th

permanent placement of a dependent child: (1) reunification with a biological parent,

guardian, or custodian (42 Pa.C.S.A. §6351(f.1)(1 )); (2) adoption (42 Pa.C.S.A.

§6351 (f.1)(2)); (3) legal custodianship in the event neither reunification nor adoption i

suited (42 Pa.C.S.A. §6351(f.1 )(3)); (4) placement with a fit and willing relative in the

event the three previous alternatives are unsuited (42 Pa.C.S.A. §6351(f.1)(4)); or (5)

placement in another planned permanent living arrangement when the four previous

alternatives are not best suited for the child's safety, protection, and physical, mental

and moral welfare. (42 Pa.C.S.A. §6351(f.1)(5)). Before a court may elect an option, i

must find that the other options are less suitable.

        Reunification has been the goal for these children since March 2013. It is th

finding of this Court that there has not been any measurable progress made toward

making the goal of reunification attainable. Mother has been non-compliant, and while

Father has participated in drug, alcohol, and mental health evaluations, his participation

in other services is limited by his incarceration. We find it very telling that in 2015, when

Father was released, Father was immediately re-arrested and incarcerated.When given

                                                                                      Page 4 of
the opportunity to participate in a meaningful manner with CYF and this court to get his

children back, Father chose to re-offend", We have grave reservations that upon being

released, a date which remains uncertain, Father will be able to maintain the progress

he made while incarcerated.         Further, Father's incarceration impacts his ability to take

custody of his children in very practical ways. Father's ability to care for his children will

not be immediate.        Father would be released to a half-way house, have to find

employment, and have to procure suitable housing before he is available as a resource

for his children. (N.T., 03/03/16, pp. 7, 9-10, 34-39).

        c..,-.t.   and   /\.I'\. have already spent too much time in foster care and an

further delay is unacceptable. A goal change from reunification to adoption is in the bes

interests of these children. We do not make this change lightly, but the history of this

case makes it appropriate.

       We stress for the benefit of Father, and the Superior Court, that at the conclusion

of the March 3-;· 3016 hearing a concurrent plan remained in place. Father and Mothe

were both going to keep receiving services. Father is encouraged to continue with an

courses available to him during his incarceration, and CYF is to continue to investigat

the possibility of kinship placement with Paternal Grandmother or Paternal Aunt.6 (N.T.,

03/03/16, pp. 11-15; p. 25, I. 15-16).

       The evidence presented on March 3, 2016 clearly shows that reunification is no

best suited to the children's safety, protection, physical, mental, and moral welfare. It is



5
     Father testified that he is challenging the legality of this 2015 arrest. (N.T., 03/03/16, p. 34).
6
     This plan addresses the problem of the children experiencing foster care drift since their
initial placement in 2013. Rather than waiting to pursue only one option, reunification, the
concurrent plan allows the children to move more quickly through the dependency system and
into the permanent placement best suited to their individual situation.
                                                                                                Page 5 of
not in the children's best interests to continue to be exposed to uncertainty in their foste

care placements in hopes that Father will gain his freedom and be able to care for them

some time in the future. The uncertainty of when or if Father will be able to provide fo

the children is exactly the situation the Juvenile Act is in place to minimize. We continue

to find any further delay in a goal change is not in the children's best interests.

                                       CONCLUSION

       The evidence presented supports our finding that a change in the permanenc

goal is appropriate at this time. For the foregoing reasons, the Court respectful!

requests that it's Mo.<ti11, 2016 Orders be AFFIRMED.




                                                                                J.




                                                                                      Page 6 of 6
