J-S52035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.I., A MINOR       :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
                                        :
APPEAL OF: K.R., FATHER                 :         No. 366 MDA 2017

              Appeal from the Order Entered January 30, 2017
             In the Court of Common Pleas of Lancaster County
            Juvenile Division at No(s): CP-36-DP-0000053-2016


IN THE INTEREST OF: Z.I., A MINOR       :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
                                        :
APPEAL OF: K.R., FATHER                 :         No. 367 MDA 2017

              Appeal from the Order Entered January 30, 2017
             In the Court of Common Pleas of Lancaster County
            Juvenile Division at No(s): CP-36-DP-0000053-2016


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

MEMORANDUM BY GANTMAN, P.J.:                      FILED AUGUST 18, 2017

     Appellant, K.R. (“Father”), appeals from the orders entered in the

Lancaster County Court of Common Pleas, Juvenile Division, which found

aggravated circumstances existed and reasonable efforts were not required

by the Lancaster County Children and Youth Services (“CYS”) to reunify

Father and his minor child, Z.I. (“Child”), born February 2010. We affirm.

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

Most recently, CYS became involved with this family on February 24, 2016,
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when CYS received a report that stated mother’s paramour (“Paramour”)

had physically abused Child’s sibling.    As a result, CYS filed petitions on

February 25, 2016, for temporary custody of Child and her minor siblings.

That same date, the Juvenile court granted the petitions and placed Child

and her siblings in CYS’ custody. On February 29, 2016, the court held a

shelter care hearing and continued Child’s placement with CYS. CYS filed a

motion for a finding of aggravated circumstances against mother on March

9, 2016, and alleged that mother had witnessed Paramour abuse mother’s

child, and Mother did not intervene and/or seek medical treatment for her

child. On April 11, 2016, the court adjudicated Child dependent after finding

Child was without sufficient food and mother had been using illegal drugs.

Additionally, the Juvenile court found aggravated circumstances existed

against mother and permitted CYS to discontinue reasonable efforts to

reunify mother and Child.

     The Juvenile court held a hearing on May 23, 2016, and approved CYS’

request to place Child in a kinship resource home. At the hearing, Paramour

refused to cooperate with court-ordered genetic testing to confirm his

paternity of Child. Mother and Paramour, however, both testified under oath

that Paramour was Child’s biological father.    On May 24, 2016, the court

issued an order directing CYS to proceed with the case as if Paramour is

Child’s father. Father continued to refuse to cooperate with genetic testing.

As a result, on July 18, 2016, the court directed the office of Domestic


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Relations to perform genetic testing on Father to confirm paternity.       On

October 28, 2016, CYS received Father’s test results, which confirmed his

paternity.

      CYS performed a background check on Father and discovered an

investigation report (CY-48 report) from the Northumberland County CYS,

which stated that: (a) on April 1, 2015, Father was indicated as a

perpetrator of physical abuse against his biological child, N.R.R. (born

December 2011); (b) N.R.R. suffered severe burning/scalding to her hands,

which left permanent scarring and possible deformity; and (c) N.R.R.’s

injuries were consistent with someone forcibly holding N.R.R.’s hand under

scalding water. So, CYS filed a motion on November 3, 2016, for a finding

of aggravated circumstances against Father and attached a copy of the CY-

48 report. CYS filed a petition for a permanency hearing on November 7,

2016, claiming no further efforts to reunify Father and Child were required

due to aggravated circumstances.      CYS asked the court to change the

primary placement goal from reunification to adoption.

      On November 28, 2016, the Juvenile court appointed counsel to

represent Father. Following several continuances, the court held a hearing

on CYS’ petitions on January 30, 2017.      At the hearing, CYS caseworker

Kelsey Curcio testified that after CYS learned of Father’s paternity of Child,

CYS checked Father’s history of involvement with other CYS agencies. Ms.

Curcio said CYS discovered the CY-48 report, which indicated Father as a


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perpetrator of physical abuse against his minor daughter, N.R.R., in April

2015. Ms. Curcio explained N.R.R. suffered severe burning/scalding to her

hand, which left permanent scarring and possible deformity. Moreover, Ms.

Curcio believed N.R.R.’s injuries constituted serious bodily injury, which

formed the basis of CYS’ request for a finding of aggravated circumstances

against Father. In light of CYS’ findings, Ms. Curcio requested the court to

find aggravated circumstances against Father and approve CYS’ proposed

permanency plan.

      On January 30, 2017, the Juvenile court entered an order finding

aggravated circumstances against Father, and entered a dispositional order

approving CYS’     proposed permanency plan, changed        Child’s primary

placement goal to adoption, and ordered that no visitation occur.        On

February 28, 2017, Father timely filed notices of appeal and Rule

1925(a)(2)(i) statements from the court’s January 30, 2017 orders.       On

March 23, 2017, this Court sua sponte consolidated the appeals.

      Father raises two issues for our review:

         WHETHER THE [JUVENILE] COURT ERRED IN ITS
         DISPOSITIONAL ORDER WHEN IT DETERMINED THAT
         FATHER…SHOULD RECEIVE A CHILD PERMANENCY PLAN
         WITH NO PLAN FOR REUNIFICATION WITH…CHILD?

         WHETHER THE [JUVENILE] COURT ERRED IN ITS
         AGGRAVATED    CIRCUMSTANCES     ORDER   WHEN   IT
         DETERMINED    THERE   WAS    SUFFICIENT  EVIDENCE
         PRESENTED THAT AGGRAVATED CIRCUMSTANCES FOR
         ABUSE OF A CHILD EXISTED AS TO FATHER?

(Father’s Brief at 8).

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      For purposes of disposition, we combine Father’s issues, which he

addresses in his brief out of sequence.    Father argues the Juvenile court

based its finding of aggravated circumstances against Father solely on Ms.

Curcio’s testimony, which focused on the content of the CY-48 report.

Father avers Ms. Curcio’s testimony alone was insufficient. Father maintains

CYS did not offer the report as an exhibit at the January 30, 2017 hearing

and/or present testimony from a Northumberland County CYS caseworker.

Father concludes CYS failed to present clear and convincing evidence of

aggravated circumstances. Additionally, Father asserts, for the first time in

his brief, that the record does not mention when CYS requested a finding of

aggravated circumstances against Father, which makes it impossible to

determine whether the motion was timely filed, and CYS did not provide

Father with notice of the motion.

      Next, Father challenges the Juvenile court’s dispositional order that

approved CYS’ permanency plan of no reunification of Father and Child.

Father argues the court failed to assess and/or demand proof of Father’s

inability to parent. Father claims the January 30, 2017 hearing was the first

time he was present, represented by counsel, and allowed to give evidence.

Father asserts the court based its dispositional order solely on the CY-48

report.   Moreover, Father maintains the court failed to consider that the

report involved a single incident.    Father points out CYS did not show

evidence of continued abuse. For these reasons, Father concludes he should


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have received a plan for reunification with Child, and requests a remand so

he can demonstrate his ability to parent.           We disagree with Father’s

contentions.

        Our Supreme Court set forth our standard of review for dependency

cases as follows:

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

In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010).                    The

Pennsylvania Juvenile Act,1 which was amended in 1998 to conform to the

federal Adoption and Safe Families Act (“ASFA”),2 controls issues pertaining

to the custody and placement of dependent children.             Id.   “The policy

underlying these statutes is to prevent children from languishing indefinitely

in foster care, with its inherent lack of permanency, normalcy, and long-

term parental commitment. Consistent with this underlying policy, the 1998

amendments to the Juvenile Act, as required by the ASFA, place the focus of

dependency proceedings, including change of goal proceedings, on the

child.” Id. In other words, these Acts equally emphasize the best interests

of the child is at the heart of the court proceedings; although the
____________________________________________


1
    42 Pa.C.S.A. §§ 6301-6365.
2
    42 U.S.C. § 671 et seq.



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reunification of children placed in foster care with their natural parents is a

primary goal, the ASFA “was designed to curb an inappropriate focus on

protecting the rights of parents when there is a risk of subjecting children to

long term foster care or returning them to abusive families.”        In re C.B.,

861 A.2d 287, 295 (Pa.Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d

187 (2005).

         Both statutes are compatible pieces of legislation seeking
         to benefit the best interest of the child, not the parent.
         There is no denying that ASFA promotes the reunification
         of foster care children with their natural parents when
         feasible, but the one notable exception to the goal of
         reunification is where aggravated circumstances are extant
         in the home, which encompasses abandonment, torture,
         and/or abuse of a chronic or sexual nature:

            (D) reasonable efforts … shall not be required to be
            made with respect to a parent of a child if a court of
            competent jurisdiction has determined that—

              (i) the parent has subjected the child to
              aggravated circumstances (as defined in State
              law, which definition may include but need not
              be limited to abandonment, torture, chronic
              abuse, and sexual abuse)[.]

         42 U.S.C. § 671(a)(15)(D)(i).          In like fashion,
         Pennsylvania’s Juvenile Act focuses upon reunification of
         the family, which means that the unity of the family shall
         be preserved “whenever possible.”        42 Pa.C.S.A. §
         6301(b)(1).     However, as with ASFA, all family
         reunification may cease in the presence of a finding of
         aggravated circumstances…

In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009), appeal denied, 603 Pa.

710, 985 A.2d 220 (2009).      Section 6351 of our Juvenile Act provides in

pertinent part:

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        § 6351. Disposition of dependent child

                                 *     *    *

        (e) Permanency hearings.—

           (1) The court shall conduct a permanency hearing for
           the purpose of determining or reviewing the
           permanency plan of the child, the date by which the
           goal of permanency for the child might be achieved and
           whether placement continues to be best suited to the
           safety, protection and physical, mental and moral
           welfare of the child. In any permanency hearing held
           with respect to the child, the court shall consult with the
           child regarding the child’s permanency plan in a manner
           appropriate to the child’s age and maturity. . . .

           (2) If the county agency or the child’s attorney
           alleges the existence of aggravated circumstances and
           the court determines that the child has been
           adjudicated dependent, the court shall then determine if
           aggravated circumstances exist. If the court finds from
           clear and convincing evidence that aggravated
           circumstances exist, the court shall determine whether
           or not reasonable efforts to prevent or eliminate the
           need for removing the child from the child’s parent,
           guardian or custodian or to preserve and reunify the
           family shall be made or continue to be made and
           schedule a hearing as provided in paragraph (3).

                                 *     *    *

42 Pa.C.S.A. § 6351(e)(1-2).    “Safety, permanency, and the well-being of

the child must take precedence over all other considerations, including the

rights of the parents.” In re M.S., supra at 615. The decision whether to

pursue reunification is made on a case-by-case basis. In re A.H., 763 A.2d

873, 878 (Pa.Super. 2000).           After the trial court finds aggravated

circumstances, the court has the discretion to order the cessation of


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reunification services. Id. See 42 Pa.C.S.A. § 6351(e) (stating finding of

aggravated circumstances requires court to determine if reasonable efforts

shall continue to reunify family).

      The Juvenile Act defines “aggravated circumstances” to include the

following circumstance:

         § 6302. Definitions

         “Aggravated circumstances.”               Any of the following
         circumstances:

                                     *    *    *

         (2) The child or another child of the parent has been the
         victim of physical abuse resulting in serious bodily injury,
         sexual violence or aggravated physical neglect by the
         parent.

42 Pa.C.S.A. § 6302.      “Serious bodily injury” means “Bodily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement or protracted loss or impairment of the function of any bodily

member or organ.” Id. Section 6334 of the Juvenile Act addresses petitions

alleging aggravated circumstances in pertinent part as follows:

         § 6334. Petition

                                     *    *    *

         (b) Aggravated circumstances─

           (1) An allegation that aggravated circumstances exist
         may be brought:

               (i) in a petition for dependency with regard to a
               child who is alleged to be a dependent child; or


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               (ii) in a petition for a permanency hearing with
               regard to a child who had been determined to be a
               dependent child.

            (2) The existence of aggravated circumstances may
            be alleged by the county agency or the child’s attorney.
            If the county agency reasonably believes that
            aggravated circumstances exist, it shall file the
            appropriate petition as soon as possible but no later
            than 21 days from the determination by the county
            agency that aggravated circumstances exist.

            (3) A petition for dependency or a permanency
            hearing that alleges aggravated circumstances shall
            include a statement of the facts the…child’s attorney
            intends to prove to support the allegation. …

42 Pa.C.S.A. § 6334(b).

     Instantly, the Juvenile court adjudicated Child dependent on April 11,

2016, and found aggravated circumstances against mother.               Child’s

biological father remained uncertain until a test confirmed Father’s paternity

on October 28, 2016.      Shortly thereafter, CYS discovered a CY-48 report

that indicated Father was the perpetrator of physical abuse against another

child, N.R.R. The report stated: (a) on April 1, 2015, Father was indicated

as a perpetrator of physical abuse against his biological child, N.R.R. (born

December 2011); (b) N.R.R. suffered severe burning/scalding to her hands,

which left permanent scarring and possible deformity; and (c) N.R.R.’s

injuries were consistent with someone forcibly holding N.R.R.’s hand under

scalding water. So, CYS filed a motion on November 3, 2016, for a finding

of aggravated circumstances against Father. CYS attached the CY-48 report

to its motion for the court’s consideration. At the January 30, 2017 hearing,

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Ms. Curcio summarized the content of the CY-48 report and stated, inter

alia, that N.R.R. suffered severe burning/scalding to her hand, which left

permanent scarring, possible deformity, and constituted serious bodily

injury.   The record supports Ms. Curcio’s position that Father was

responsible for the physical abuse of N.R.R.    Thus, we conclude the court

reasonably found aggravated circumstances against Father.             See 42

Pa.C.S.A. § 6302.

      Regarding Father’s challenge to the Juvenile court’s dispositional order,

we observe the court was well within its discretion to discontinue

reunification efforts between Father and Child after the court found

aggravated circumstances against Father. See 42 Pa.C.S.A. § 6351(e); In

re M.S., supra; In re A.H., supra.

      To the extent Father complains on appeal that CYS did not timely file

its motion for a finding of aggravated circumstances against Father and/or

give Father notice of the motion, Father waived these issues for appeal. See

Pa.R.A.P. 302(a) (stating: “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal”); Commonwealth v.

Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (holding issues not

raised in Rule 1925(b) statement are waived on appeal); In re L.M., 923

A.2d 505 (Pa.Super. 2007) (applying those Rule 1925 waiver standards in

family law context). Moreover, the record belies Father’s contentions. The

record makes clear CYS discovered the CY-48 report on November 3, 2016,


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after it learned of Father’s paternity on October 28, 2016. CYS timely filed

its motion for a finding of aggravated circumstances against Father on

November 3, 2016, well within the 21-day allotted timeframe.        See 42

Pa.C.S.A. § 6334(b)(2).    Additionally, the court’s January 9, 2017 order

confirmed CYS provided Father with notice of the aggravated circumstances

hearing. Further, Ms. Curcio testified at the January 30, 2017 hearing that

CYS provided Father with notice of the hearing. Accordingly, we affirm.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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