J-S58015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.H., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.P., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 755 WDA 2019

                Appeal from the Order Entered April 21, 2019
      In the Court of Common Pleas of Allegheny County Family Court at
                       No(s): CP-02-DP-0001087-2017


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                         FILED DECEMBER 20, 2019

       Appellant, D.P. (“Father”), files this appeal from the permanency review

order dated April 2, 2019, and entered April 21, 2019, in the Allegheny County

Court of Common Pleas, changing the permanent placement goal of his minor,

male child, J.H., born in February 2014 (“Child”), to permanent legal custody

(“PLC”) pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351.1           After careful

review, we affirm the trial court’s order.

       This appeal concerns only Father’s status; Child’s mother, A.H.

(“Mother”), supports the change in the placement goal, and asks this Court to

affirm the order. See N.T., 4/2/19, at 35-37 (Mother’s counsel summarizing

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1 Child’s mother, A.H. (“Mother”), supported the granting of permanent legal
custody. See N.T., 4/2/19, at 21, 35-37. Mother did not file a separate
appeal. Additionally, with regard to the instant appeal, Mother submitted a
letter indicating that she would not be submitting a brief but wished to see
the trial court order affirmed.
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Mother’s position was to have Child remain with his foster parents, S.C. and

M.C.); Letter from Mother’s counsel, 9/27/19 (“Mother does wish to see the

trial court affirmed”). Child was adjudicated dependent on December 20,

2017, and has been living with S.C. and M.C. since December 6, 2017. At that

time, both Mother and Father were incarcerated and unable to care for Child.

     Father was incarcerated from 2014 to 2019 due to convictions for drug

trafficking and illegal possession of firearms. He was briefly paroled in the

summer of 2018, but was determined to have violated the conditions of his

parole. Father was paroled again on February 7, 2019.

     Father has consistently visited with Child while on parole. However,

these visit always occurred during Father’s grandmother’s visitation with

Child. Father failed to heed the court’s advice that he establish his own,

independent visitation schedule with Child.

     At the April 2, 2019 permanency review hearing, the court heard

testimony that child was suffering negative behavioral consequences due to

the lack of stability and permanency. Due to this testimony, the court orally

ordered that permanent legal custody of Child be granted to foster parents,

and ordered the parties to propose new visitation schedules that would

increase Child’s weekend time in his          foster home while supporting

development of Child’s relationship with Father.

     On April 17, 2019, the court issued an order to provide Father with one

weekend overnight visit and one weekend day visit per month with Father.


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These visits would be supervised by Father’s grandmother. The court also

ordered that Father receive one weeknight visit per week, to be supervised by

a service provider.

      Thereafter, on April 21, 2019, the court entered the written order

changing Child’s placement goal to permanent legal custody with foster

parents. Father then filed this timely appeal.

      On appeal, Father raises the following issues for our review:

      1. The [t]rial [c]ourt erred and/or committed a fatal error and/or
         abused its discretion changing the goal from reunification to
         permanent legal custodianship after only (11) months of the
         child being in [p]lacement.

      2. The [t]rial [c]ourt erred and/or committed a fatal error and/or
         abused its discretion by ruling that changing the goal from
         reunification to permanent legal custodianship is in the best
         interest of the minor child.

      3. The [t]rial [c]ourt erred and/or committed a fatal error and or
         abused its discretion by finding that the modified visitation
         schedule is in the best interest of the minor child.

Father’s Brief at 7.

      As we stated in In re K.J., 27 A.3d 236 (Pa. Super. 2011):

      Our standard of review of an order granting [PLC] is abuse of
      discretion.

      When reviewing such a decision[,] we are bound by the facts as
      found by the trial court unless they are not supported in the
      record. Furthermore, in a change of goal proceeding, the trial
      court must focus on the child and determine the goal in
      accordance with the child’s best interest and not those of his or
      her parents.

      At each review hearing concerning a child who has been
      adjudicated dependent and removed from the parental home, the
      trial court must consider: the continuing necessity for and

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      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.

      These statutory mandates clearly place the trial court’s focus on
      the best interests of the child.

      In addition[, a]lthough bound by the facts as found by the trial
      court and supported by the record, we are not bound by the trial
      court’s inferences, deductions, and conclusions therefrom; we
      must exercise our independent judgment in reviewing the court’s
      determination, as opposed to its findings of fact, and must order
      whatever right and justice dictate. We review for an abuse of
      discretion. Our scope of review, accordingly, is of the broadest
      possible nature. It is this Court’s responsibility to ensure that the
      record represents a comprehensive inquiry and that the hearing
      judge has applied the appropriate legal principles to that record.
      Nevertheless, we accord great weight to the court’s fact-finding
      function because the court is in the best position to observe and
      rule on the credibility of the parties and the witnesses.

In re K.J., 27 A.3d at 241 (citations omitted, second and third brackets in

original).

      As further explained by this Court in In re S.H., 71 A.3d 973 (Pa. Super.

2013),

            In Pennsylvania, a juvenile court may award permanent
      legal custody to a child’s caretaker pursuant to Section
      6351(a)(2.1) of the Juvenile Act. This is an arrangement whereby
      a juvenile court discontinues court intervention as well as
      supervision by a county agency, and awards custody of a
      dependent child, on a permanent basis, to a custodian. Parental
      rights are not terminated. The custodian is typically provided a
      financial subsidy for the child by the local county children and
      youth agency. The subsidy component is generally an integral
      component when permanent legal custody is considered a viable
      option.



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                                      …

            [T]he court must conduct a hearing and make specific
      findings focusing on the best interests of the child. In order for
      the court to declare the custodian a “permanent legal custodian”
      the court must find that neither reunification nor adoption is best
      suited to the child’s safety, protection and physical, mental and
      moral welfare.

                                      …

             In those cases where reunification is not appropriate,
      adoption is viewed as providing the greatest degree of
      permanence. In some situations, however, adoption may not be
      a realistic or appropriate option.    For example, some older
      children, who are well familiar with and have affection for their
      birth parents, may object to termination proceedings. There are
      also special needs children for whom placement in an adoptive
      home is extremely difficult.      Consequently, in those cases,
      attention may be focused on alternative permanency options such
      as guardianship, or custodial arrangements [PLC], preferably with
      relatives.

In re S.H., 71 A.3d at 977-78 (citations and footnotes omitted).

      Furthermore,

      [a] trial court must utilize the highest civil standard of proof, “clear
      and convincing evidence,” when addressing a petition to terminate
      parental rights. When a trial court considers and grants a
      permanent legal custody order, it does not engage in this
      heightened review process. Upon filing a [PLC] petition, [the
      petitioner] is required merely to prove that reunification or
      adoption is not best suited to the child’s safety, protection and
      physical, mental and moral welfare. Clearly, the procedural and
      substantive safeguards utilized to protect the rights of parents in
      termination cases are not applicable in PLC cases.

Id. at 979-80 (citations, internal quotation marks, and footnote omitted).

      Lastly, we recognize that at each permanency review hearing, the court

is additionally to consider “whether the visitation schedule for the child with

the child’s guardian is adequate, unless a finding is made that visitation is

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contrary to the safety or well-being of the child.” Pa.R.J.C.P. 1608(D)(1)(q).

Moreover, in awarding PLC, “[w]hen deemed appropriate, the trial court has

the power to permit continued visitation by the [dependent] child’s natural

parents.” In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004). “The polestar

and paramount concern in evaluating parental visitation, in dependency as

well as non-dependency situations, is the best interests and welfare of the

children.” In re C.J., 729 A.2d 89, 94 (Pa. Super. 1999) (citations omitted).

     Father first argues that the trial court erred in changing Child’s goal after

Child was only in placement for eleven months. However, the trial court found

that Child was placed on December 6, 2017. The court therefore determined

that at the time of the April 2, 2019 hearing in question, “Child had been in

placement for four days less than 16 months.” Trial Court Opinion, 7/15/19,

at 14. Father concedes in his brief that Child’s goal was changed after being

in placement for sixteen consecutive months. See Father’s Brief at 8-9.

     The court then continued, asserting that it was appropriate after fifteen

months to asses changing Child’s permanency goal.

     Given Child’s 16 consecutive months in placement, the law
     required the Court to consider changing Child’s permanency goal.
     As a matter of course, the Juvenile Act mandates that the trial
     court consider the appropriateness of the permanency goal at
     each permanency review. When parents are actively pursuing
     their service plan goals and making progress, trial courts
     frequently and appropriately maintain reunification as the goal at
     the early permanency reviews. The law, however, recognizes that
     children cannot wait indefinitely while their parents work to fulfill
     their goals.   Consequently, at the 15-month point, the law
     requires CYF to initiate termination of parental rights proceedings
     as the preferred path to achieve permanency, unless an


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        enumerated exception applies.        Here, CYF did not pursue
        termination of parental rights, because CYF and the other
        participants, including Foster Parents, all recognize the value and
        importance to Child of maintaining his relationship with Mother
        and of developing his relationship with Father. However, the
        Court’s hearing and decision in this matter occurred at precisely
        the time specified by law as the appropriate time to focus on and
        weigh heavily a child’s need to achieve permanency.

Trial Court Opinion, 7/12/19, at 14-15.

        Father, however, asserts that the trial court abused its discretion in

changing Child’s goal as “Father only had seven weeks to demonstrate his

ability to take care of his son.” Father’s Brief at 8-9. We disagree. The court

appropriately considered Father’s limited experience visiting Child as well as

Child’s need for permanency and stability. The court noted that Father is just

beginning the process of forming a relationship with Child. See Findings of

Fact, 4/22/19, at ¶¶ 21, 25. The court’s findings are well supported by the

record and do not constitute an error of law or abuse of discretion. Father’s

claim is without merit.

        We address Father’s second and third arguments together, as they are

interrelated.2 In these two arguments, Father renews his contention that he

did not have sufficient time to demonstrate his fitness to have custody Child.

Indeed, the trial court found that Father’s brief period of release from

incarceration was insufficient to establish that he was able to provide Child

with stability. See id., at ¶ 22. Further, in contrast to Child’s relationship and



____________________________________________


2   We observe that the trial court addressed these issues together as well.

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comfort with his foster parents, Child’s relationship with Father was still new

and developing. See id., at ¶¶ 22-26.

      The trial court stated that its decision rested on two primary factors.

First, the limited time Father had since his release from incarceration did not

allow Father to demonstrate his ability to provide a stable environment that

provided for Child’s needs. See Trial Court Opinion, 7/12/19, at 8. Second,

Child’s current and continued well-being depended on the maintenance of the

security and stability provided by foster parents “while developing a

relationship with Father.” See id.

      Both of these conclusions are well supported by the record. Further,

they do not represent an error of law or abuse of discretion. The court’s

primary consideration was the best interests of Child. Father’s arguments shift

that focus to Father’s rights to establish his ability to care for Child. The court

properly rejected these arguments and instead crafted a solution that allowed

Father the opportunity to establish a relationship with Child and demonstrate

an ability to care for Child, while also addressing Child’s needs. Father’s

second and third arguments merit no relief.

      In sum, we discern no abuse of discretion in the goal change.            The

evidence supports the conclusion that the court’s grant of permanent legal

custody and modification of visitation are in Child’s best interests and best

suited to the protection and physical, mental and moral welfare of Child.       As

we have stated, “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

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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, 1089 (Pa.

Super. 2011) (citations and quotation marks omitted).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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