J-S48044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: A.M., Natural Mother                      No. 292 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 16, 2016

     A.M. (“Mother”) 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 her 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 Mother), which

we incorporate herein. See Juvenile Court Opinion (Mother), 3/11/16, at 1-5.

On February 25, 2016, Mother 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).   In response, the juvenile court issued a Pa.R.A.P.

1925(a) Opinion.

     On appeal, Mother raises the following issues for our review:
J-S48044-16

      1. Did the Juvenile Court commit an abuse of discretion and/or
      error of law when it determined that the concurrent placement
      goal of reunification/adoption was no longer feasible[;] dispensed
      with the concurrent placement goal of reunification, after only ten
      months[;] and directed [OCY] to provide no further services
      and[/]or visitation to [Mother]?

      2. Did the Juvenile Court commit an abuse of discretion and/or
      error of law when it failed to acknowledge that [OCY] had failed to
      conduct an appropriate individualized analysis of the family
      support services needed by [Mother] and acted solely on its
      assumptions about [Mother’s] disability?

      3. Did the Juvenile Court commit an abuse of discretion and/or
      error of law when it failed to acknowledge that the lack of
      progress and “minimal compliance” made by [Mother] were the
      direct result of her disability and that [Mother] should have been
      offered specialized services by [OCY,] which would have permitted
      her to demonstrate and/or acquire appropriate parenting skills?

Mother’s Brief at 5.1

      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 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).


1
  Mother stated her issues somewhat differently in her Concise Statement;
nevertheless, we find the issues preserved for review.
                                       -2-
J-S48044-16

      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). Section 6351(f) sets forth several matters that

a juvenile court shall determine at a permanency hearing, including, inter

alia, “(9) [whether] the child has been in placement for at least 15 of the last

22 months ….”      Id. § 6351(f)(9).         Upon finding that the fifteen-month

                                        -3-
J-S48044-16

prerequisite is satisfied, the juvenile court must determine “whether the

county agency has filed … a petition to terminate parental rights and to

identify, recruit, process and approve a qualified family to adopt the child ….”

Id.2

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

Mother argues that the juvenile court abused its discretion by changing

Child’s permanency goal to adoption where (1) Child had been in placement

for only ten months, which is “far short of the 15[-]month statutory

guidepost”; (2) OCY failed to develop and implement a treatment plan

tailored to Mother’s significant cognitive limitations and special needs; and (3)

the juvenile court did not consider the protections that Mother was entitled to

under the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101, et

seq., as a disabled person who should have been provided an individualized




2
   Our Pennsylvania Supreme Court explained the significance of section
6351(f)(9) as follows: “the statutory language ensures that termination
petitions are timely filed. Specifically, if a child has been in custody for 15 of
the last 22 months, the court must inquire as to whether a termination
petition has been filed, absent the listed exceptions of subsections (i)-(iii),
including whether the parents have been provided necessary services.” In re
D.C.D., 105 A.3d 662, 674 (Pa. 2014); see also id. at 674-75 (stating that
“[r]equiring a court to inquire whether an agency has filed for termination
promotes timely permanency for children rather than subjecting them to
foster care drift[,]” i.e., where children languish in the foster care system
while their parents unsuccessfully attempt to regain custody). Additionally,
our Supreme Court has stated that section 6351(f)(9) does not establish a
litmus test that requires a juvenile court to alter the course of reunification
due simply to the amount of time a child has been in placement. In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
                                      -4-
J-S48044-16

treatment plan that “might assist her in overcoming her disability.”       See

Mother’s Brief at 8, 9-14.

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

applicable law in addressing Mother’s claims, and determined that (1) her

claims did not establish any abuse of discretion; (2) the conditions that led to

the placement of Child would not or could not be remedied by Mother, even if

OCY were to provide her with further services; and (3) continued, indefinite

placement is contrary to Child’s best interests.   See Juvenile Court Opinion

(Mother), 3/11/16, at 5-8. 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 Mother’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.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2016




                                     -5-
                                                                                                Circulated 07/28/2016 12:33 PM




 IN THE INTEREST OF:               4. u.«. l                  IN THE COURT OF COMMON PLEAS
.•-""'""'"'      ...........      ~a/~a                       OF ERIE COUNTY, PENNSYLVANIA
        L 23 IT YE Illlll 7377              JC,               JUVENILE DIVISION
 A minor adjudicated dependent                                NO. 64 of 2015

                               1925(a) OPINION (APPEAL OF MOTHER)

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

 adoption for the child, A.F. The mother of A.F .• •••••••·                        now challenges the order

  contending this court erred in several respects when it eliminated reunification as a goal.' The

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

  convincing evidence and is in the best interest of the child. It is therefore requested the Superior

  Court affirm the order.

                                            ISSUES PRESENTED

              Appellant's primary issue raised on appeal is as follows: that the Juvenile Court
                                                                                                         ...

  committed an abuse of discretion/error of law when it determined the concurrent permanency

  goal of reunification/adoption was no longer feasible and changed the goal to adoption after the

  child had only been in care for ten and a half months. Appellant alleges additional time should

  have been given for her to receive continued treatment and for OCY to comply with various

  portions of the Americans with Disabilities Act (ADA).

                                 PROCEDURAL HISTORY AND FACTS

              In March 2015, the child was removed from the Appellant's care because of Appellant's

  significant cognitive limitations that prevented her from parenting the child safely. Specifically,

   Appellant failed to "demonstrate a basic understanding of the child's needs" and required regular

   "instruction regarding feedings and hygienic needs for the child." Court Summary, 7/6/15, p. l.

   On March 25, 2015, the child was adjudicated dependent. The Appellant stipulated to the facts

   1
    Father has also appealed the termination order. That appeal is docketed at 340 WDA 2016. The issues he raised
   are addressed in a separate opinion.

                                                          1
underlying the basis for adjudication.   Court Summary, 716115, p.1.   A dispositional hearing took

place on April 22, 2015.

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

Appellant was participating in services with Healthy Families of America, the Motherhood

Initiative, and a parenting program at her high school. However, she demonstrated minimal

understanding of the skills she was learning while visiting with her child. Appellant required

regular prompting during visits with her daughter to care for her and interact with her. Court

Summary, 7/6115, p.S, 7.

         Appellant was also instructed to work with a developmental disabilities coordinator

through Erie County Care Management, and, while she did appear to be assessed for services,

she did not return to avai I herself of those services. At the time of this hearing, Appellant resided

with an indicated perpetrator of sexual abuse and had been for some time before the hearing.

Court Summary, 716/15, p.6, 7. At the conclusion of the hearing, the court ordered the child

remain in foster care. The goal of reunification remained unchanged. Permanency Review

 Order, 7/8/15, p. 2.

        A second review hearing was held on October 21, 2015. The caseworker testified that

 though the Appellant had been compliant with her treatment, she made only minimal progress in

 developing parenting skills with Healthy Families of America and the life and parenting skills

 program at her school. The Appellant was still unable to meet her own needs without the

 assistance of others. Permanency Review Hearing Transcript, 10121/15, p.8-9.

         Workers pointed to Appellant's limited ability to retain information as the cause of her

 minimal progress. The caseworker stated that though Appellant made an effort at meetings, she

 still relied heavily on the assistance of agency staff during visitation and continued to require



                                                    2
redirection on implementing    "basic skills such as feeding and holding techniques."   She

frequently did not or refused to give the child the proper amount of formula, despite guidance

given to help her. It was unclear whether Appellant's    inability to feed the child properly was due

to an inability to read the formula container.   Permanency Review Hearing Transcript, 10/21115,

p. 32-33.

        The agency worker opined that at no point in the foreseeable future would Appellant be

able to successfully and safely parent the child without assistance. Permanency Review Hearing

Transcript, 10/21/15, p.8-9.    Any other programs offered might have benefitted the Appellant

for life skills purposes, but would not have benefited her with respect to reunification with her

child. Permanency Review Hearing Transcript, 10/21115, p.14.

        Appellant continued to live with a perpetrator of sexual abuse. She also failed to follow

through with treatment by Erie County Care Management. At the conclusion of the hearing, the

court ordered a concurrent goal of adoption be added to the plan. Permanency Review Hearing

 Transcript, 10/21/15, p. 8; See also Court Summary, 10/21I 15, p. 5, 6.

        A third review hearing took place on January 25, 2016. All court summaries and

 attachments were admitted into evidence without objection. OCY requested the goal be changed

 to adoption.

         The testimony of agency case workers showed the Appellant had been receiving services

 before her child was born through the parenting program at her school and from the Erie Family

 Center as early as May and October, 2014. A case was not open with OCY at the time these

 services began, but was opened shortly after the birth of the child based on a referral by the

 worker at the Erie Family Center. Permanency Review Hearing Transcript, 1125116, p. 7-8.




                                                    3
           Both the caseworker from the Erie Family Center and the caseworker from Appellant's

school program shared similar concerns regarding Appellant's ability to parent and were often

present together at visitation between Appellant and child. Permanency Review Hearing

Transcript, 1 /25116, p. 29. They were primarily concerned with Appellant's ability to remember

to feed the baby, feed the baby the proper amount of formula, and remember to pay attention to

the child. Services were focused to address those concerns. Appellant once more continued to

reside with an indicated perpetrator of abuse. Permanency Review Hearing Transcript, 1125/16,

p.8, 29.

           Though the caseworkers worked with Appellant for over a year and a half, they testified

she made no progress and was in no better position to parent the child in January. Giving her

additional time will not change the circumstances. Even when visitation was shortened to thirty

minutes due to Appellant's school schedule, Appellant still lost focus and needed constant

redirection regarding proper interaction and safety of the child. Permanency Review Hearing

Transcript, 1/25/ 16, p.12. She needed frequent instruction on feeding and how to appropriately

interact with the infant. She could not remember how to care for the child between visits. This

was attributed to Appellant's severe cognitive limitations. According to Appellant's educational

records, she has an IQ of 55, and while she made progress with personal life skills through

school, still she was unable to independently care for herself and had not progressed at all with

regard to her parenting skills. Permanency Review Hearing Transcript, 1/26116, p. 33, 37,51.

           Because of the amount of time the child had been in placement, her need for permanency

and stability, and Appellant's inability to remedy any of the conditions that led to her placement,

the agency's request to change the goal to adoption was granted. A written order was entered




                                                    4
January 29, 2016. Services to both parents were terminated.     The child was placed in a pre-

adoptive home.   Permanency Review Order, 1/29/16, 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 lower 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 oflaw, 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 ("OCY") to request

a goal change when the child has been in placement for fifteen out of twenty-two months. 42

 Pa.C.S. §6351 (f)(9). The Appellant primarily asserts the court committed abuse of discretion

 and/or error of law when it ordered the goal changed to adoption after the child had been in care

 for ten and one half months and did not require OCY to consider any ADA mandates regarding

 treatment.




                                                    5
       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 MS., 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 CB., 861 A2d. 287,

295 (Pa.Super. 2004). Moreover, to accept a party's assertion the courts ought to consider the

ADA mandates within the purview of the Juvenile Act would "require the trial court" and the

 Superior Court "to ignore the best interests of the child and focus instead on the needs of the

 Mother." In re A.P., 728 A.2d 375, 379 (Pa. Super. 1999).

        Previously, the Superior Court has shown an unwillingness to shift focus from child to

 parent. Id. The safety, permanency, and the well-being of the child must take precedence over

 all other considerations, including the rights of the parents. In re CB., 861 A.2d 287, 29 5 (Pa.

 Super. 2004).   "Once a child is adjudicated dependent, the issues of custody and continuation of

 foster care are determined according to the child's best interests." In re A.P., 728 A.2d 375, 379

 (Pa. Super. 1999).

         Even if the Appellant qualified as an individual with a disability under the ADA, the next

 relevant question would become whether OCY "provided her with reasonable acconunodations



                                                    6
to allow   her to participate and receive benefits from services offered on an equal footing with

persons who are not disabled." Id. Not only has OCY provided all the support available to

enable Appellant to participate in services with them as any other person would be able to do, the

workers also explained other available programs through institutions like the Barber Center

would be geared towards helping Appellant develop additional life skills that would not be

focused on parent-child bonding or reunification. Permanency Review Hearing Transcript,

10/21/15, p. 14.    Appellant already participates in school-based life skills training with a focus

on parental duties and participates with Healthy Families of America through the Erie Family

Center.

           Mandating OCY to provide any additional life-skills centered programs to Appellant,

especially given her history of failure in similar programs, takes the focus off the child and shifts

the focus to the Appellant. In the context of the Juvenile Act, it is improper to change the focus

in such a way, and the Superior Court has gone as far as to say it will decline extending the ADA

to change obligations imposed by unrelated statutes, and does not believe it was the intent of

Congress to do so. In re A.P., 728 A.2d 375, 379 (Pa. Super. 1999).       The portion of Appellant's
    -Hi"'t
claim"OCY failed to provide her a "true opportunity" to demonstrate appropriate parenting skills

 or with additional programs or services under the ADA is therefore without merit.

           Appellant's contention this court committed abuse of discretion when it changed the goal

 to adoption after ten and one half months is likewise without merit. It is clear reunification in this

 case is not possible. Though Appellant loves her child and might make every effort to comply

 with her treatment plan, it does not change the extent of her cognitive disabilities, nor the fact

 she has been unable to succeed in successfully parenting because of her permanent cognitive

 limitations.



                                                    7
       Caseworkers testified several times Appellant needed to be reminded to give attention to

the child, and shown how to properly hold, feed, and change the baby at each visit. Workers

were also doubtful a bond had actually been established between Appellant and child. To subject

the child to continued placement and deny her the safety and stability she deserves is not in her

best interests. Given the Appellant's    limited abilities, affording her additional time with services

will not change the circumstances.      Permanency Review Hearing Transcript,1/25/16, p. 2. There

is no way to reasonably expect the Appellant will be able to successfully or independently parent

the child. It is therefore in the child's best interests the goal be changed to adoption.

                                                CONCLUSION

        Though the Appellant has admittedly put forth effort in order to successfully parent her

child, it is clear her cognitive limitations prevent her from doing so. Clear and convincing

evidence exists to show that subjecting the child to continued, indefinite placement is contrary to

her best interests. Her interests are best served by eliminating reunification as a goal and

allowing OCY to proceed to adoption. It is therefore respectfully requested the Superior Court

affirm the January 29, 2016 Permanency Review Order.

        Dated this~
                         tA day of March, 2016.
                                                          BY THE COURT:




                                                          -RO-~_..~-=-R-T_(jA_~-A-M-i--#--0-A-K-, JR-. __   J.


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




                                                      8
