J-S42045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:       S.B., JR., Minor      IN THE SUPERIOR COURT OF
Child                                                 PENNSYLVANIA




APPEAL OF: S.B., SR., Father                          No. 495 WDA 2014


              Appeal from the Order entered February 26, 2014,
                in the Court of Common Pleas of Erie County,
                    Domestic Relations, at No.: 43 of 2013

BEFORE:     PANELLA, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 27, 2014

      S.B., Sr. (“Father”), appeals from the Order changing the permanency

goal for his dependent child, S.B., Jr. (“Child”), to adoption. We affirm.

      In its April 7, 2014 Opinion, the juvenile court set forth the relevant

factual and procedural history underlying the instant appeal, which we

incorporate herein by reference. Juvenile Court Opinion, 4/7/14, at 2-7.

      On February 27, 2014, the juvenile court entered a permanency

review Order, which changed Child’s goal from reunification to adoption.

The juvenile court ordered that placement would remain with Child’s

maternal aunt in kinship care. Further, the Order permitted the Erie County

Office of Children and Youth (“OCY”) to proceed with adoption plans, and to

petition for the termination of Father’s parental rights at the appropriate

time. Additionally, the Order provided that Child should remain in the legal
J-S42045-14


custody of OCY, in accordance with the permanency plan, as modified.1

Father timely filed a Notice of Appeal of the Order changing Child’s

permanency goal, and a Concise Statement of errors complained of on

appeal.

      On appeal, Father claims that the juvenile court “abused its discretion

by sua sponte ordering an elimination of reunification as a goal, and by

disregarding his efforts at sobriety and his compliance with the reunification

plan developed for him.”2   Brief for Appellant at 2 (unnumbered).     Father

asserts that the Court Summary prepared by OCY indicated that Father was

in substantial compliance with the court-approved reunification plan.     Id.

According to Father,

      [h]e was receiving drug and alcohol treatment ([Court]
      Summary, p.4), was participating in random urinalysis, which
      never generated a positive result of substance abuse ([Court]
      Summary, p.5), had completed a parent skills program (Id.),
      was having success in mental health treatment (Id.), and had
      participated in visits (Id.)….

Brief for Appellant at 2 (unnumbered). Father concedes, however, that “his

main problem was a relapse on heroin, which he admitted to his probation

officer.” Id. According to Father, he presented evidence that he had a plan




1
  The record indicates that, on March 17, 2014, OCY filed a termination
Petition, approximately fifteen months after Child entered into kinship care
with his maternal aunt.
2
  Father did not include, in his appellate brief, a Statement of Questions
Involved, as required by Pa.R.A.P. 2116.
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for himself upon release from the halfway house, which included family

support, a job and continuing his sobriety. Id. at 3 (unnumbered).

      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 [juvenile] 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., 9 A.3d 1179, 1190 (Pa. 2010).

      [A]n abuse of discretion occurs “when the course pursued
      represents not merely an error of judgment, but where the
      judgment is manifestly unreasonable or where the law is not
      applied or where the record shows that the action is a result of
      partiality, prejudice, bias or ill will.”

In re G.P.-R., 851 A.2d 967, 973 (Pa. Super. 2004) (citation omitted).

      In a change of goal proceeding, the best interests of the child, and not

the interests of the parent, must guide the juvenile court, and the parent’s

rights are secondary. In re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007).

The burden is on the Agency to prove the change in goal would be in the

child’s best interests.   In the Interest of M.B., 674 A.2d 702, 704 (Pa.

Super. 1996).

      In addressing Father’s argument, the juvenile court stated the

following:

      It was clear to this [c]ourt that [] Father’s testimony lacked
      credibility. He sought to minimize his situation and place blame
      on others. His lack of effort to follow the treatment plan in place

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J-S42045-14


      was apparent not only from the substance of his words but his
      demeanor at the time. There is no reason to believe Father will
      follow through with his stated plan upon his return to Erie.

Juvenile Court Opinion, 4/7/14, at 7.

      Although Father contends that OCY was willing to work with him

toward reunification with Child, and that OCY had only requested a ninety-

day review period, as opposed to a change in goal to adoption, OCY states

that Father was aware that the agency was seeking to add adoption, as a

concurrent goal, at the hearing. Brief of OCY at 5. OCY explains that the

juvenile court did not agree with the concurrent goal of adoption, and

ordered a change of goal to adoption. Id. OCY asserts that Father has a

history of heroin use with multiple relapses, and has untreated mental health

issues because he refuses to take his medication. Id. at 6. OCY points out

that, while there was some testimony suggesting a bond between Child and

Father during the supervised visits, the juvenile court rejected that evidence.

Id. Child, through his guardian ad litem, concurs with OCY’s brief. Brief for

Guardian Ad Litem at 3.

      Father acknowledges that, in the Court Summary filed on February 24,

2014, OCY stated its intention to change the permanency goal from

reunification to add the concurrent goal of adoption. Brief for Appellant at 2

(unnumbered); Court Summary, 2/24/14, at 1. At the hearing on February

24, 2014, OCY presented evidence that it sought to add the concurrent goal

of adoption because of Father’s long history of ongoing drug use and his


                                     -4-
J-S42045-14


relapse on heroin and cocaine in October and November of 2013, which

resulted in Father’s incarceration. N.T., 2/24/14, at 4.

      Our careful review of the record, including the testimony and other

evidence, discloses that the juvenile court’s decision was not manifestly

unreasonable, a misapplication of the law, or a result of partiality, prejudice,

bias or ill will.   See In re G.P.-R., 851 A.2d at 973.     We agree with the

sound reasoning of the juvenile court, as set forth in its Opinion, and affirm

on this basis. See Juvenile Court Opinion, 4/7/14, at 9-11. We additionally

observe the following.

      Our review discloses that the juvenile court considered the evidence,

and assessed Father’s credibility. See id. at 7 (wherein the juvenile court

does not credit Father’s testimony regarding his plans upon release from the

halfway house). Further, the parties agree that there is no existing case law

that prevented the juvenile court from changing the goal at a second

permanency review hearing.

      We discern no abuse of discretion or error of law by the juvenile court

when it determined that it was not in Child’s best interests to have a

concurrent goal of return to parent with a goal of adoption, and that a goal

of adoption was in Child’s best interests. Accordingly, we affirm the order of

the juvenile court.

      Order affirmed.




                                     -5-
J-S42045-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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