J-S38029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: C.S., A                :   IN THE SUPERIOR COURT OF
    MINOR AND J.D., A MINOR                    :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: H.S., NATURAL PARENT            :
                                               :
                                               :
                                               :
                                               :   No. 316 WDA 2018

                     Appeal from the Order January 16, 2018
     In the Court of Common Pleas of Cambria County Domestic Relations at
                        No(s): CP-11-DP-0000149-2016,
                            CP-11-DP-0000150-2016


BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                           FILED DECEMBER 14, 2018

        H.S. (Mother), appeals from the orders entered on January 16, 2018,

changing the permanency goal of her minor, male, dependent children, C.S.

(born in December of 2014), and J.D. (born in May of 2010),1 (collectively,

the Children), from “return home” to “permanency through adoption” under

the Juvenile Act, 42 Pa.C.S. § 6351. We affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The Children have different fathers. Trial Ct. Op., 3/22/18, at 1 n.2. The
trial court noted that Brittney Corson, the caseworker for the Cambria County
Children and Youth Services (CYS or the Agency), testified that the issues that
had brought the Children into care had not been alleviated by either parent
for each child, that neither father was able to meet the needs of the Children,
nor would they be able to do so in the foreseeable future. Id. at 10. Neither
father has appealed the goal change order, nor is either father a party to the
instant appeal.
J-S38029-18



       The trial court ably summarized the relevant factual background to this

matter at the permanency review hearing held on January 12, 2018:

       H.S. [Mother] . . . is the natural mother of J.D. and C.S. Services
       to the family were initiated in August 2016 due to homelessness
       of the family, mental health issues of Mother and J.D., drug and
       alcohol issues of Mother and her then paramour [R.W.], lack of
       medical care for [C]hildren, development concerns, and domestic
       violence concerns. [C]hildren were removed from Mother’s care
       [on] August 24, 2016, by way of a voluntary placement
       agreement[,] with J.D. being placed with a family friend[,] and
       C.S. being placed in foster care because of the family friend’s
       inability to care for both children. [On September 28, 2016, the
       trial court entered orders adjudicating the Children dependent
       pursuant to 42 Pa.C.S. § 6302(1). The trial court appointed Paul
       Eckenrode, Esq., as Children’s guardian ad litem (GAL).2]

____________________________________________


2 See 42 Pa.C.S. § 6311(a). Because this is a dependency action rather than
a contested termination of parental rights (TPR) proceeding, Section 6311(a)
requires the appointment of GAL “to represent the legal interests and the best
interests of the child.” Id. (emphasis added). In contrast, in the TPR context,
our Supreme Court addressed in In re Adoption of L.B.M., 161 A.3d 172
(Pa. 2017) (plurality), “whether 23 Pa.C.S. § 2313(a), which mandates the
appointment of counsel for children involved in contested involuntary [TPR]
proceedings, is satisfied by the appointment of a [GAL] provided that the GAL
is an attorney.” L.B.M., 161 A.3d at 174. In L.B.M.,

       a majority of the Court agreed on several points: (a) in the
       context of contested [TPR] proceedings, the first sentence of
       Section 2313(a) requires that the common pleas court appoint an
       attorney to represent the child’s legal interests, i.e., the child’s
       preferred outcome; (b) where there is a conflict between the
       child’s legal interests and his best interests, [a GAL], who
       advocates for the child’s best interests, cannot simultaneously
       represent the child’s legal interests.

In re T.S., ___ A.3d ___, 2018 WL 4001825, at *1 (Pa. filed Aug. 22, 2018).

In T.S., our Supreme Court re-visited L.B.M. The T.S. Court held that the
trial court did not err in allowing the children’s GAL to act as their counsel



                                           -2-
J-S38029-18



                                          ***

       Brittney Corson (Corson) testified that she is the CYS caseworker
       assigned to the family. Corson testified that the concerns related
       to Mother at the time services were initiated included:
       homelessness; financial instability; domestic violence; Mother’s
       mental health needs; Mother’s drug use; and Mother’s inability to
       meet the needs of the children. Corson testified that she had
       many of the same concerns in January 2018 as exi[s]ted in August
       of 2016 including: Mother was in the process of being evicted and
       would again become homeless; unstable relationships with men
____________________________________________


during the termination proceeding because, at two and three years old, the
children were incapable of expressing their preferred outcome. T.S., 2018 WL
4001825, at *7. The Court explained that Section 2313(a) was satisfied by
the representation of the children by the GAL because “if the preferred
outcome of [the children is] incapable of ascertainment because [they are]
very young and pre-verbal, [then] there can be no conflict between the
[children’s] legal interests and his or her best interests.” Id. at *10. In such
circumstances, the T.S. Court concluded that there was no conflict of interest
between the children’s best and legal interests.

L.B.M. has been raised sua sponte by this Court in TPR proceedings. At the
time of the proceedings at issue in the instant appeal, however, the holding
in L.B.M. had not been extended beyond the TPR context. While this appeal
was pending, this Court extended the requirements of L.B.M. and its progeny
to a dependency action in which the mother of a sixteen-year-old girl raised
the issue of whether legal counsel should have been appointed for the girl,
whose legal interests conflicted with the GAL’s view of her best interests. See
In re J’K.M., 191 A.3d 907, 915 & n.9 (Pa. Super. 2018). However, J’K.M.
did not extend that portion of L.B.M. and its progeny that requires sua sponte
review of the appointment of legal counsel. Indeed, as this Court made clear
in J’K.M., the issue had been raised by a party to the dependency proceeding,
namely the mother. Id. We note that no party has raised an issue regarding
the appointment of legal counsel for Children in the instant dependency
proceeding. Moreover, there is no indication of a conflict between the best
and legal interests of Children. Accordingly, we decline to consider sua sponte
whether legal counsel was required for Children in this dependency
proceeding.




                                           -3-
J-S38029-18


     with a history of domestic violence; failure to treat mental health
     or drug use issues; and unstable employment resulting in financial
     instability. Corson testified that [C]hildren had been in placement
     for sixteen months with the parents making little progress in
     alleviating the concerns that brought [C]hildren into care.

     Corson testified that since services began Mother has been
     provided with numerous services including: CYS caseworker
     services; supervised visitation including home visits with visit
     coaching services; social work services; family engagement;
     home management services; JustCare home services; drug and
     alcohol assessments; medication management and counseling
     through Nulton [Diagnostic Treatment Center (Nulton)] and ACRP;
     and assistance with obtaining aid from the Pennsylvania
     Department of Public Welfare. Corson testified that Mother had
     briefly lived with B.C., the father of C.S., during which time she
     had stable housing but that B.C. had been incarcerated for a
     probation violation related to domestic violence involving Mother
     and Mother’s situation deteriorated after that. She testified that
     following B.C.’s incarceration[,] Mother resumed a relationship
     with [R.W.] who Mother had been seeing at the time services were
     initiated in 2016. Relative to [R.W.], Corson testified that he had
     refused to cooperate with CYS in the past, refused to cooperate
     with the agency now, there were concerns related to domestic
     violence between him and Mother, and concerns related to his
     drug use. Further, both fathers indicated that they did not want
     [R.W.] around their children.

     Corson testified that Mother was barely able to care for herself
     and meet he[r] own needs because of continued housing issues,
     financial instability despite working two jobs, [and] not addressing
     her mental health needs or drug use issues. Corson testified that
     Mother continued to put her needs before [C]hildren’s as
     demonstrated by her choice to continue a relationship with [R.W.]
     despite Corson directing her not to and her continued drug use.
     Finally, Corson opined that at present, the issues that brought
     [C]hildren into care had not been alleviated by any parent and
     that neither Mother nor either father was able to meet the needs
     of the children, nor would they be able to do so in the foreseeable
     future.

     Dennis Kashurba (Kashurba) testified that he is a licensed
     psychologist who performed an evaluation on Mother in June 2017
     after reviewing the record of CYS and Mother’s treatment records
     from Nulton[.] Kashurba testified that during her treatment with

                                    -4-
J-S38029-18


     Nulton, Mother was diagnosed with anxiety disorder, depressive
     disorder, a learning disorder, panic disorder, and [post-traumatic
     stress disorder (PTSD)]. He testified that as a result of his own
     testing and evaluation Mother showed elevations in persecutory
     ideation and impulse expression. Kashurba testified that as a
     result of his evaluation he had recommended various services for
     Mother to alleviate CYS’ concerns and help her regain her children
     including: continued mental health treatment with medication
     management; home management services; supervised visitation
     with parenting coaching; drug treatment with continued drug
     screens; and family engagement services.

     Kashurba testified that he was aware that Mother had produced a
     drug screen positive for cannabis prior to the hearing and that he
     had been present [for] the testimony of Corson. Kashurba
     testified that based on his evaluation, Corson’s testimony, and the
     positive drug screen it appeared that Mother had continued her
     lifestyle without change from the date of his evaluation. He
     testified that given her history[,] Mother would be unable to
     address her mental health issues or drug use issues within the
     next year but would need continued treatment. Kashurba opined
     that based upon all information available to him[,] Mother was
     unable to care for her children at that time and that she was
     unlikely to be able to do so in the foreseeable future.

     Mother testified that[] she loves her children and is doing all she
     can to regain custody of them.         Relative to her financial
     situation[,] Mother testified that she is working two jobs but
     cannot meet her financial obligations because she has to pay for
     [C]hildren’s[] foster care. Mother explained that she was in the
     process of being evicted for failure to pay rent and that a local
     agency had offered to pay the back rent but the landlord refused
     to allow her to stay because he knew she could not afford the rent
     going forward. Mother acknowledged that she would not be able
     to pay future rent without assistance. Mother testified that she
     would stop her relationship with [R.W.] if she got her children
     back. Mother testified that she was in the process of resuming
     mental health treatment and had an appointment scheduled with
     ACRP for early February to begin counseling and medication
     management. She acknowledged that she was not presently
     taking her prescribed medication but asserted it was related to an
     issue with the prescription not her desire not to comply. Finally,
     she testified that she would do whatever CYS asked her to do in
     order to regain custody of [C]hildren.


                                    -5-
J-S38029-18



Trial Ct. Op., 3/22/18, at 1, 8-11 (citations and footnote omitted).

       Following the January 12, 2018 hearing, the trial court

       entered Orders changing the goals of [C]hildren from return home
       to permanency through adoption. The [trial court] made Findings
       of Fact that, inter alia, included: none of the parents were
       placement options; no parent had alleviated the concerns that
       necessitated placement and will not do so in the foreseeable
       future; the parents had failed to comply with the permanency plan
       requirements and [c]ourt[-]ordered services; no parent could
       provide for the long[-]term health, safety and welfare of
       [C]hildren; Cambria County Children and Youth Services (CYS)
       had exhausted all services to remedy the reasons for placement;
       [C]hildren have been in placement for 16 months with no
       substantial change in the situation of any parent; [C]hildren
       needed a stable environment in which to develop; Mother
       continues to have housing issues and was in the process of being
       evicted; Mother continues to have financial instability and is
       unable to meet her or [C]hildren’s needs; Mother had failed to
       address her mental health issues; Mother failed to address her
       drug issues and continued to use illegal drugs; Mother continued
       to place her needs before [C]hildren; Mother continued to choose
       inappropriate paramours[,] resulting in ongoing domestic violence
       concerns; and that a goal change to adoption was in the best
       interest of [C]hildren.

Id. at 1-2 (citations and footnote omitted).

       On February 23, 2018, Mother timely filed a notice of appeal, and, on

March 2, 2018, Mother filed a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3
____________________________________________


3 We decline to find waiver based on Mother’s failure to file a Rule 1925(b)
concise statement simultaneously with her notice of appeal. See In re
K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009) (finding that the appellant’s
failure to simultaneously file a Rule 1925(a)(2) concise statement did not
result in waiver of all issues for appeal where the appellant later filed the
statement, and there was no allegation of prejudice from the late filing); cf.



                                           -6-
J-S38029-18



       Mother raises the following issue: “Whether the trial court erred and/or

abused its discretion when it changed the permanency goal for the minor

children from ‘Return Home’ to ‘Adoption.’” Mother’s Brief at 4.

       Mother contends that she had made the necessary progress to return

the Children to her or to give her additional time to make progress toward the

goal of returning them to her. Id. at 6. Mother asserts that the testimonial

evidence at the permanency review hearing established that she has been

consistently employed throughout the duration of the dependency case and

has shown the ability to locate appropriate housing. Id. Additionally, Mother

has been evaluated by an appropriate drug and alcohol treatment program,

and she has not been recommended to receive any additional treatment. Id.

Mother claims that she has consistently and appropriately visited the Children.

Id.

       The Pennsylvania Supreme Court recently set forth our standard of

review in a dependency case as follows:

       The standard of review in dependency cases requires an appellate
       court to accept 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. We review for abuse of discretion[.]




____________________________________________


J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (finding that the appellant
waived issues for appeal by failing to comply with the trial court’s order
directing her to file a Rule 1925(b) Statement within 21 days).


                                           -7-
J-S38029-18


In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (internal quotation marks and

citations omitted).

      Section 6302 of the Juvenile Act defines a “dependent child” as:

      [a] child who:

         (1) is without proper parental care or control, subsistence,
         education as required by law, or other care or control
         necessary for his physical, mental, or emotional health, or
         morals. A determination that there is a lack of proper
         parental care or control may be based upon evidence of
         conduct by the parent, guardian or other custodian that
         places the health, safety or welfare of the child at risk[.]


42 Pa.C.S. § 6302.

      In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court further

clarified the definition of “dependent child”:

      The question of whether a child is lacking proper parental care or
      control so as to be a dependent child encompasses two discrete
      questions: whether the child presently is without proper parental
      care and control, and if so, whether such care and control are
      immediately available.

G., T., 845 A.2d at 872 (internal quotation marks and citations omitted); see

also In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note

that “[t]he burden of proof in a dependency proceeding is on the petitioner to

demonstrate by clear and convincing evidence that a child meets that

statutory definition of dependency.”       G., T., 845 A.2d at 872 (citation

omitted).

      With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.

Super. 2002) (en banc), this Court explained:

                                      -8-
J-S38029-18


      [A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
      a finding that a child is dependent if the child meets the statutory
      definition by clear and convincing evidence. If the court finds that
      the child is dependent, then the court may make an appropriate
      disposition of the child to protect the child’s physical, mental and
      moral welfare, including allowing the child to remain with the
      parents subject to supervision, transferring temporary legal
      custody to a relative or public agency, or transferring custody to
      the juvenile court of another state. 42 Pa.C.S. § 6351(a).

D.A., 801 A.2d at 617 (citation omitted).

      Regarding the disposition of a dependent child, Section 6351(e), (f),

(f.1), and (g) of the Juvenile Act provide the trial court with the criteria for its

permanency plan for the subject child. Pursuant to those subsections of the

Juvenile Act, the trial court is to determine the disposition that is best suited

to the safety, protection and physical, mental and moral welfare of the child.

      Section 6351(e) of the Juvenile Act provides in pertinent part:

      (e) Permanency hearings.—

         (1) [T]he 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


                                       -9-
J-S38029-18


        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. § 6351(e)(1)-(2).

     Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for

the reviewing court:

     (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.

           (7) If the child has been placed outside the
           Commonwealth, whether the placement continues to be
           best suited to the safety, protection and physical, mental
           and moral welfare of the child.

                                    ***




                                   - 10 -
J-S38029-18


          (9) If the child has 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 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 return to the child’s parent, guardian or
       custodian or being placed for adoption is not best suited to the



                                    - 11 -
J-S38029-18


         safety, protection and physical, mental and moral welfare of
         the child.

         (4) If and when the child will be placed with a fit 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.

         (5) If and when the child will be placed in another living
         arrangement intended to be permanent in nature which is
         approved by the court in cases where the county agency has
         documented a compelling reason that it would not be best
         suited to the safety, protection and physical, mental and moral
         welfare of the child to be returned to the child’s parent,
         guardian or custodian, to be placed for adoption, to be placed
         with a legal custodian or to be placed with a fit and wiling
         relative.

      (f.2) Evidence.— Evidence of conduct by the parent that places
      the health, safety or welfare of the child at risk, including evidence
      of the 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. § 6351 (emphasis added).

      After our careful review of the record in this matter, we conclude that

the trial court’s factual determinations are supported by competent evidence,

and we discern no error in the court’s legal conclusion to change the goal for

Children from reunification to adoption.        See L.Z., 111 A.3d at 1174.


                                     - 12 -
J-S38029-18


Accordingly, we affirm the permanency review order and goal change order of

the trial court based on the well-reasoned opinion of President Judge Norman

A. Krumenacker, III, filed on March 22, 2018.

     Order affirmed.

      Judge Bowes concurs in the result.

      Judge Strassburger files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2018




                                   - 13 -
                                                                                             Circulated 10/29/2018 03:41 PM




     IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
                          JUVENILE DIVISION

                                                                *
    IN THE MATTER OF:                                           *
                                                                *
    J.D.                                                        *     CP-11-DP-0000149-2016
                                                                *
    C.S.                                                        *     CP-11-DP-0000150-2016
                                                                *
    Appeal of H.S., the Natural Mother                          *     Opinion Pursuant to Rule of Appellate
                                                                *     Procedure 1925(a)(2)
                                                                *
           OPINION PURSUANT TO RULE OF APPELLATE
                                     PROCEDURE 1925 (a)(2)
    Krumenacker, P.J.: H.S.(Mother) the appellant herein, is the natural mother of J.D. and

    C.S.1 Services to the family were initiated in August 2016 due to homelessness of the family,

    mental health issues of Mother and J.D., drug and alcohol issues of Mother and her then

paramour Robert Wilde (Wilde), lack of medical care for the children, development concerns,

and domestic violence concerns. The children were removed from Mother's care August 24,

2016, by way of a voluntary placement agreement with J.D. being placed with a family friend

and C.S. being placed in foster care because of the family friend's inability to care for both

children.

            After a hearing on January 12, 2018, this Court entered Orders changing the goals of

all the children from return home to permanency through adoption. The Court made Findings

of Fact that, inter alia, included: none of the parents/ were placement options; no parent had

alleviated the concerns that necessitated placement and will not do so in the foreseeable



1
    Since the subjects of this appeal are juveniles they will be referred to by their initials.
2
    J.D. and C.S. have different fathers.




                                                 (v'
 future; the parents had failed to comply with the permanency plan requirements and Court

 ordered services; no parent could provide for the long term health, safety, and welfare of the

 children; Cambria County Children and Youth Service (CYS) had exhausted all services to

remedy the reasons for placement; the children have been in placement for 16 months with no

substantial change in the situation of any parent; the children needed a stable environment in

which to develop; Mother continues to have housing issues and was in the process of being

evicted; Mother continues to have financial instability and is unable to meet her or the

children's needs; Mother had failed to address her mental health issues; Mother failed to

address her drug use issues and continued to use illegal drugs; Mother continued to place her

needs before the children; Mother continued to choose inappropriate paramours resulting in

ongoing domestic violence concerns; and that a goal change to adoption was in the best

interest of the children. N.T. 1/12/18 pp. 54-56.

        Mother timely filed Notice of Appeal and submitted a Concise Statement of Errors

Complained of on Appeal (Concise Statement) pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b ), which raises the sole issue of:

        I. Did the Court err or abuse its discretion by finding that clear and convincing

           evidence existed to change the goal from return to Mother to adoption?

        For the reasons discussed below the appeal should be dismissed and the Court's

Orders of January 16, 2018, should be affirmed.

                                    DISCUSSION

       Mother's allegation of error relates to the Court's determination that a change in goal

to adoption was necessary and appropriate to meet the needs of the children and was the safest

and least restrictive placement. In its opening provisions, the Juvenile Act (Act) provides that

                                          -Page 2 of 15-
one of its fundamental purpose is "[t]o preserve the unity of the family whenever possible or

to provide another alternative permanent family when the unity of the family cannot be

maintained" 42 Pa. C.S. § 6301(b)(l), and a child who has been adjudicated dependent may

be separated from its parents only upon a showing of clear necessity. Thus, the situations in

which the state may intervene are limited, and its burden is very heavy. These restrictions

derive from the interrelated beliefs that the family is one of our most important institutions,

that a child's best interest is served by being raised within the family, and that the state should

not unnecessarily intrude upon, and thereby weaken, the family.

        While the primary goal of the Act is to preserve and reunite the family, it goes far

beyond that opening statement of purpose. The Act also requires and provides a vehicle by

which the court can remove children from the family environment when necessary for their

welfare or in the interest of public safety. The Superior Court has stated that "[w]hile

deference must be given to this laudatory goal, deference should not become rigid adherence

to the principle regardless of the circumstances; otherwise, adoption will never be an option

regardless of the family situation and the best interests of the child." In re: J.S.W., 438 Pa.

Super. 46, 54, 651 A.2d 167 170-71 (1994).

       Once intervention by the state has occurred, the child stands in a different relationship

to the parents than a child in an intact family whose rights are protected and whose needs are

fulfilled by his parents. Removal of a child from his parents by the state can only occur on

proof of neglect or dependency on the standard of clear and convincing evidence, Santosky v.

Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982), and upon establishment of

clear necessity following petition, notice and hearing with the parent and child having the

assistance of counsel. See also, 42 Pa. C.S. §§ 6301-6375 (Juvenile Act); Helsel v. Blair


                                           -Page 3 of 15-
County Children and Youth Serv., 359 Pa. Super. 487, 519 A.2d 456 (1986) (standard for

adjudicating a child dependent is "clear and convincing evidence", as well as a showing of

clear necessity). Once the child has been removed from the home it becomes the duty of the

court to do that which its parents have failed to do and provide those things that are in his or

her best interest. Accordingly, once a child has been removed from its parents the issues of

custody, continuation of foster care and appropriateness of the goal are determined according

to a child's best interests. In re: Miller, 380 Pa. Super. 423, 552 A.2d 261 (1988).

       The role of the court in cases such as this was summarized in the case of Petition of

Frank B. Bon, 25 Kan. 308, 37 Am. Rep. 255, when Justice Brewer, of the Supreme Court of

Kansas, later a United States Supreme Court Justice, wrote:

       when the custody of children is the question, that the best interest of the
       children is the paramount fact. Rights of father and mother sink into
       insignificance before that. Even when father and mother are living together, a
       court has the power, if the best interests of the child require it, to take it away
       from both parents, and commit the custody to a third person. In other words, a
       court of chancery stands as a guardian of all children, and may interfere at any
       time, and in any way, to protect and advance their welfare and interests.

In re: Rosenthal, 103 Pa. Super. 27, 32-33, 157 A. 342, 343 (quoting Petition of Frank B.

Bort, 25 Kan. 308 (1881)). In the case sub judice, both fathers and Mother failed to live up to

their duties as parents and the state has been forced to intervene to protect their children and

ensure that their needs are met and that they are afforded the opportunity to enjoy a stable

family life and to develop to the fullest extent of their potential.

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

the parent, must guide the trial court, and the parent's rights are secondary. In re: M.S., 980

A.2d 612 (Pa. Super. 2009); In re: A.K., 936 A.2d 528, 532-533 (Pa. Super. 2007); In re:

G.T., 897 A.2d 1197 (Pa. Super. 2006). The burden is on the agency to prove the change in


                                            -Page 4 of 15-
goal would be in the child's best interest. In re Interest of M.B., 449 Pa. Super. 507, 674 A.2d

702, 704 (1996) (citing In Interest of Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691

(1990)). Our Superior Court has explained that

        Placement of and custody issues pertaining to dependent children are
        controlled by the Juvenile Act, which was amended in 1998 to conform to the
        federal Adoption and Safe Families Act (ASFA). 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 ASF A, place the focus of dependency
        proceedings, including change of goal proceedings, on the child. Safety,
        permanency, and well-being of the child must take precedence over all other
        considerations, including the rights of the parents.

In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006)(emphasis in original)(internal citations

omitted). In contrast, in a termination of parental rights proceeding, the focus is on the

conduct of the parents as assessed against 23 Pa. C.S. § 2511. In re M.B., 674 A.2d at 705.

        Regarding permanency, sections 635l(f), (f. l), and (g) of the Act provide in pertinent

part:


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

        (I) 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.




                                          -Page 5 of 15-
 ( 5 .1) Whether reasonable efforts were made to finalize the permanency plan in
 effect.

 (6) Whether the child is safe.



(9) If the child has 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 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.



(f.2) Evidence.--Evidence of conduct by the parent that places the health,
safety or welfare of the child at risk, including evidence of the use of alcohol
or a controlled substance that places the health, safety or welfare of the child at

                                   -Page 6 of 15-
       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. l ), 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. § 6351.

       Further, the Adoption and Safe Families Act, 42 U.S.C. §§ 671-679c, imposes upon

states the requirement to focus on the child's needs for permanency rather than the parent's

actions and inactions. The amendments to the Act pursuant to this federal legislation provide

that a court shall determine certain matters at the permanency hearing, including whether the

child has been placed into foster care for 15 out of the last 22 months. See, 42 Pa. C.S. §

635l(f)(9). With regard to permanency planning, the Legislature contemplated that, after

reasonable efforts have been made to reestablish the biological relationship, the process of the

agency working with foster care institutions to terminate parental rights should be completed

within eighteen months. See, In re: N.W., 859 A.2d 501, 508 (Pa.Super.2004) (citing In re:

G.P.R., 851 A.2d 967, 976 (Pa. Super. 2004)).

       As the Superior Court has consistently held, "a child's life simply cannot be put on

hold in the hope that the parent will summon the ability to handle the responsibilities of

parenting." In re: N.C., 909 A.2d at 824 (quoting In re Adoption of M.E.P., 825 A.2d 1266,

1276 (Pa. Super. 2003)). Further, "if a parent fails to cooperate or appears incapable of

benefiting from the reasonable efforts supplied over a realistic period oftime, the agency has

fulfilled its mandate and upon proof of satisfaction of the reasonable good faith effort, the

termination petition may be granted." In Interest of Lilley, 719 A.2d 327, 332 (Pa. Super.

1998) (citing In re: J.W., 396 Pa. Super. 379, 578 A.2d 952 (1990)).

                                          -Page 7 of 15-
       Relative to the standard of review on appeals from a goal change proceeding, our

Superior Court has explained that

       When we review a trial court's order to change the placement goal for a
       dependent child to adoption, our standard is abuse of discretion. In re:
       G.P.R.. 851 A.2d 967, 973 (Pa. Super. 2004). 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. Id. (citation omitted). We are bound by the trial court's findings
       of fact that have support in the record. Id. The trial 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 trial court is free to believe all, part, or none of the
       evidence. In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006).
       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. (quoting In re In the Interest of S.H .. 879 A.2d 802, 806 (Pa. Super.
       2005), appeal denied, 586 Pa. 751, 892 A.2d 824 (2005)).

In re: N.C., 909 A.at 822-23.

       The testimony presented at the January 12th hearing reveals that: while Mother made

minimal progress in addressing some issues facing her she has not alleviated all the concerns

that necessitated placement and cannot do so in the foreseeable future; Mother continues to

have drug issues as shown by a positive drugs screen the day of the hearing; Mother

continued to have mental health issues that she fails to address; Mother continues to engage in

relationships that place her at risk for becoming a victim of domestic violence; and Mother

continues to have financial issues that prevent her from providing a stable environment for the

children. N.T. 1/12/18.

       Brittney Corson (Corson) testified that she is the CYS caseworker assigned to the

family. N.T. 1/12/18 p. 4. Corson testified that the concerns related to Mother at the time

services were initiated included: homelessness; financial instability; domestic violence;

Mother's mental health needs; Mother's drug use; and Mother's inability to meet the needs of

                                          -Page 8 of 15-
the children. Id. p. 5. Corson testified that she had many of the same concerns in January 2018

as exited in August of 2016 including: Mother was in the process of being evicted and would

again become homeless; unstable relationships with men with a history of domestic violence;

failure to treat mental health or drug use issues; and unstable employment resulting in

financial instability. Id. pp. 5-6. Corson testified that the children had been in placement for

sixteen months with the parents making little progress in alleviating the concerns that brought

the children into care. Id.

        Corson testified that since services began Mother has been provided with numerous

services including: CYS caseworker services; supervised visitation including home visits with

visit coaching services; social work services; family engagement; home management services;

JustCare home services; drug and alcohol assessments; medication management and

counseling through Nulton and ACRP; and assistance with obtaining aid from the

Pennsylvania Department of Public Welfare. Id. pp. 4-12; Pet'r.'s Ex. 7. Corson testified that

Mother had briefly lived with B.C., the father of C.S., during which time she had stable

housing but that B.C. had been incarcerated for a probation violation related to domestic

violence involving Mother and Mother's situation deteriorated after that. Id. p.6; Pet'r. 's Ex 1.

She testified that following B.C. 's incarceration Mother resumed a relationship with Wilde

who Mother had been seeing at the time services were initiated in 2016. Id. Relative to Wilde,

Corson testified that he had refused to cooperate with CYS in the past, refused to cooperate

with the agency now, there were concerns related to domestic violence between him and

Mother, and concerns related to his drug use. Id. pp. 6-7. Further, both fathers indicated that

they did not want Wilde around their children. Id.




                                          -Page 9 of 15-
        Corson testified that Mother was barely able to care for herself and meet he own needs

because of continued housing issues, financial instability despite working two jobs, not

addressing her mental health needs or drug use issues. Id. p. 13. Corson testified that Mother

continued to put her needs before the children's as demonstrated by her choice to continue a

relationship with Wilde despite Corson directing her not to and her continued drug use. Id.

Finally, Corson opined that at present, the issues that brought the children into care had not

been alleviated by any parent and that neither Mother nor either father was able to meet the

needs of the children, nor would they be able to do so in the foreseeable future. Id. p. 12-13.

        Dennis Kashurba (Kashurba) testified that he is a licensed psychologist who

performed an evaluation on Mother in June 2017 after reviewing the record of CYS and

Mother's treatment records from Nulton Diagnostic Treatment Center (Nulton). Id. pp. 24-25.

N.T. Kashurba testified that during her treatment with Nulton, Mother was diagnosed with

anxiety disorder, depressive disorder, a learning disorder, panic disorder, and PTSD. Id. He

testified that as a result of his own testing and evaluation Mother showed elevations in

persecutory ideation and impulse expression. Id. p. 26. Kashurba testified that as a result of

his evaluation he had recommended various services for Mother to alleviate CYS' concerns

and help her regain her children including: continued mental health treatment with medication

management; home management services; supervised visitation with parenting coaching; drug

treatment with continued drug screens; and family engagement services. Id. p. 27.

       Kashurba testified that he was aware that Mother had produced a drug screen positive

for cannabis prior to the hearing and that he had been present from the testimony of Corson.

Id. pp. 26-27. Kashurba testified that based on his evaluation, Corson's testimony, and the

positive drug screen it appeared that Mother had continued her lifestyle without change from


                                         -Page 10 of 15-
the date of his evaluation. Id. p. 26. He testified that given her history Mother would be

unable to address her mental health issues or drug use issues within the next year but would

need continued treatment. Id. p. 28. Kashurba opined that based upon all information

available to him Mother was unable to care for her children at that time and that she was

unlikely to be able to do so in the foreseeable future. Id.

        Mother testified that: she loves her children and is doing all she can to regain custody

of them. Id. pp. 38-49. Relative to her financial situation Mother testified that she is working

two jobs but cannot meet her financial obligations because she has to pay for the children's'

foster care. Id. pp. 38-40. Mother explained that she was in the process of being evicted for

failure to pay rent and that a local agency had offered to pay the back rent but the landlord

refused to allow her to stay because he knew she could not afford the rent going forward. Id.

Mother acknowledged that she would not be able to pay future rent without assistance. Id.

Mother testified that she would stop her relationship with Wilde if she got her children back.

Id. pp. 40-41. Mother testified that she was in the process of resuming mental health treatment

and had an appointment scheduled with ACRP for early February to begin counseling and

medication management. Id. She acknowledged that she was not presently taking her

prescribed medication but asserted it was related to an issue with the prescription not her

desire not to comply. Id. Finally, she testified that she would do whatever CYS asked her to in

order to regain custody of the children. Id. pp. 42-44.

       It is clear from the testimony presented that: Mother love her children; Mother has

failed to alleviate the original concerns that resulted in the placement of her children after

more than 16 months of services; the children have been in care for a period of time in excess

of 15 months; Mother has mental health issues that require ongoing treatment and that she has


                                          -Page 11 of 15-
 failed to obtain that treatment; Mother continues to use illegal drugs and has not addressed her

 addiction with treatment; Mother continues to lack stable housing; Mother continues to

 engage in relationships that place her safety at risk, and would place the children in risk if

they were in her care, despite being told to end the relationships; Mother's financial situation

makes it impossible for her to meet her own needs let alone those of the children; and Mother

is unlikely to address these concerns in the foreseeable future. Considering all these factors it

is clear that Mother has been unable to overcome the concerns that resulted in the placement

of the children and is unlikely to overcome these concerns in the foreseeable future. To

continue on a course towards reunification with little to no possibility that Mother will

alleviate these concerns is not in the best interest of the children and will only serve to keep

them in foster care rather than allowing them to obtain a permanent and stable home through

adoption. See, In re D.P., 972 A.2d 1221 (Pa. Super. 2009)(evidence was sufficient to support

changing goal to adoption instead of reunification; mother failed to work consistently to

support reunification with children, failed to provide adequate supervision, failed to ensure

children attended therapist appointments, invited unauthorized persons, including a convicted

felon and fugitive, to stay at her home with children present, consumed illegal drugs in

presence of son, and failed to cooperate with agency and withheld information necessary to

assure children's safety, because of mother's behavior, children were in foster care for more

than three years, and mother was given more than sufficient time to become dutiful parent).

        The Act offers no guidance regarding the duration that services must be offered to a

family prior to seeking a goal change. Because of the Act's goal to preserve family unity

whenever possible, the Superior Court has held that "when there are inadequacies in the

child's home ... (the state agency should] take the steps necessary to instruct the parents in the


                                          -Page 12 of 15-
skills needed, and provide follow-up supervision in the home, where feasible." In the Interest

of Whittle, 263 Pa. Super. 312, 316, 397 A.2d 1225, 1226 (1979). However, that court has

also recognized that such services are costly and that an agency's resources are not unlimited.

In the Interest of M.A., 365 Pa. Super. 179, 183, 529 A.2d 31, 33 (1987), appeal denied, 517

Pa. 620, 538 A.2d 874 (1988) ("Just as a child cannot expect his natural parents to have

unlimited resources, so too, the Commonwealth in its role as parens patriae cannot be

expected to provide unlimited resources for the benefit of all those who may arguably need

them."). Accordingly, an agency need not offer services indefinitely, particulary where the

parents, such as Mother, fail to afford themselves of the benefits of those services by refusing

to cooperate or follow through with services.

        It is well settled that both the constitution of the United States of America and the

Pennsylvania Constitution recognize a protected right to have and raise children. As with any

constitutional right, however, it is circumscribed by duties and when the fulfillment of duties

and responsibilities upon which the right is founded are not implemented, the right must fail.

       There is no simple or easy definition of parental duties. Parental duty is best
       understood in relation to the needs of a child. A child needs love, protection,
       guidance, and support. These needs, physical and emotional, cannot be met by
       a merely passive interest in the development of the child. Thus, this court has
       held that the parental obligation is a positive duty which requires affirmative
       performance.

       This affirmative duty encompasses more than a financial obligation; it requires
       continuing interest in the child and a genuine effort to maintain communication
       and association with the child.

       Because a child needs more than a benefactor, parental duty requires that a
       parent 'exert himself to take and maintain a place of importance in the child's
       life'.

In re Shives, 363 Pa. Super. 225, 229, 525 A.2d 801, 803 (1987) (quoting In re Burns, 474 Pa.

615, 624, 3 79 A.2d 535, 540 (1977) (citations omitted)). Should a parent fail to live up to

                                          -Page 13 of 15-
their duties the state, as parens patriae, has provided a means for intervention to protect the

child through the vehicle of the Act.

        Here, as discussed above, Mother is unable due to her ongoing issues to live up to her

duty. The goal of reunification is a laudable one and should be strived for so long as it is a

realistic goal. However the Act recognizes that when it is no longer realistic to expect

reunification, the goal must be changed to that which will ensure the safety of the children and

allow them to achieve a permanent and stable home life thus allowing the limited resources of

the state to be redirected to those for who hope of reunification remains. See, 42 Pa. C.S. §

6301(b). In the end, the courts have been charged with doing that which is in the best interests

of the children of the Commonwealth, even where doing so may cause others to suffer the loss

of family.

        Unless the goal was set to one that would allow these children to achieve a level of

permanency only afforded by adoption, these children faced a lengthy stay in foster care with

only a remote chance of returning home and only with services being provided for the long

term. As our Superior Court has stated:

       Permanency Planning is a concept whereby children are not relegated to the
       limbo of spending their childhood in foster homes, but instead, dedicated effort
       is made by the court and the children's agency to rehabilitate and unite the
       family in a reasonable time, and failing in this, to free the child for adoption.

Interest of M.B., 449 Pa. Super. at 511, 674 A.2d at 704 ( quoting Interest of Sweeney, 393 Pa.

Super. 437, 574 A.2d 690 (1990)). Unless these children were to remain in the limbo of foster

care indefinitely, when the testimony and the record reveal that reunification with Mother is

unlikely to occur in the reasonably foreseeable future, a change of goal was necessary to serve

their best interests and permit them to achieve the permanent and stable family life they




                                          -Page 14 of 15-
                                                                            .
                                                                            ·,
deserves. See, In re: G.T., 897 A.2d 1197 (Pa. Super. 2006); In re: K.D., 871 A.2d 823 (Pa.

Super. 2005); In Interest of Lilley, 719 A.2d 327 (Pa. Super. 1998).

         Finally, the change of a goal from return home to adoption does not terminate

Mother's parental rights; it is only the first step in the process. See, In re: S.B., 943 A.2d at

978; In re: N.C., 909 A.2d at 824; In re: A.L.D., 797 A.2d 326, 339 (Pa. Super. 2002). As a

practical matter, the goal change simply identifies adoption as the favored disposition and

relieves CYS from its obligation to continue to provide a parent further services. In re: N.W.,

859 A.2d 501, 509 (Pa. Super. 2004). As noted by the Court at the January 12th hearing

Mother may yet be able to overcome his deficiencies and demonstrate to either this Court at

the next review hearing or to the Orphans' court' at a future termination proceeding that she is

now able to parent her children and that her parental rights should not be terminated. However

the burden of continuing towards that goal now rests with her and she must obtain the services

necessary to reach that goal outside of the agency. Accordingly, based on all the evidence

produced during this matter the goal change was proper and there is no merit to this allegation

of error.

         Accordingly, for the reasons discussed herein, the appeal should be dismissed and the

Court's Orders of January 16, 2018, should be affirmed.




March 21, 2018


3
 Terminations of parental rights proceedings occur in a different division and before a different judge of this
Court.

                                                 -Page 15 of 15-
