J-S48017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: M.A.R., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: A.C.R., FATHER                  :   No. 570 MDA 2017

                   Appeal from the Decree February 28, 2017
                  In the Court of Common Pleas of York County
                        Orphans’ Court at No: 2016-0142


    IN THE INTEREST OF: M.A.R., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: A.C.R., FATHER                  :   No. 574 MDA 2017

                  Appeal from the Order Entered March 1, 2017
                  In the Court of Common Pleas of York County
                Juvenile Division at No: CP-67-DP-0000095-2015

BEFORE:      OTT, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 18, 2017

        A.C.R. (“Father”) appeals from the decree entered February 28, 2017,

in the Court of Common Pleas of York County, which involuntarily terminated

his parental rights to his minor son, M.A.R. (“Child”), born in November


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*
    Retired Senior Judge assigned to the Superior Court.
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2012.1 In addition, Father appeals from the order entered March 1, 2017,

which changed Child’s permanency goal from reunification to adoption. After

careful review, we affirm.

       On May 11, 2015, the York County Office of Children, Youth and

Families (“CYF”) filed an application for emergency protective custody of

Child. In its application, CYF averred that officers from the York City Police

Department discovered Mother unconscious on a porch in the middle of the

night, and that she appeared to be intoxicated. Application for Emergency

Protective Custody, 5/11/15, at 3-4. The officers also discovered Child, who

was left unsupervised in his stroller. Id. at 4. CYF averred that Father was

not available to care for Child at that time, due to his incarceration.   Id.

Specifically, Father was incarcerated due to a parole violation, as well as

charges of public drunkenness, disorderly conduct, and resisting arrest. Id.

The trial court granted CYF’s application, and entered an order of emergency

protective custody.       Child remained in the custody of CYF pursuant to a

shelter care order entered May 15, 2015, and the court adjudicated Child

dependent on May 26, 2015.

       On November 15, 2016, CYF filed a petition to involuntarily terminate

Father’s parental rights to Child, as well as a petition to change Child’s


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1
  The decree also terminated the parental rights of T.R. (“Mother”). Mother
did not file a brief in connection with this appeal, nor did she file her own
separate appeal.



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permanency goal from reunification to adoption. The trial court conducted a

combined termination and goal change hearing on January 17, 2017.

Following the hearing, on February 28, 2017, the court entered a decree

terminating Father’s parental rights.          The court entered an order changing

Child’s permanency goal from reunification to adoption on March 1, 2017.2

Father timely filed notices of appeal on March 30, 2017, along with concise

statements of errors complained of on appeal.

       Father now raises the follows issues for our review.

       I. Did the trial court err in granting a contested involuntary
       termination of parental rights without appointing legal counsel to
       represent the proposed adoptee?

       II. Did the trial court err in changing the goal of a juvenile
       dependency proceeding from family reunification to adoption
       where the child was not removed from the care of the father,
       where he had not had the opportunity to work with services, and
       where he was about to be released from incarceration?

Father’s Brief at 5 (suggested answers and unnecessary capitalization

omitted).

       In his first issue, Father challenges the decree terminating his parental

rights to Child. Our standard of review is well-settled.

       The standard of review in termination of parental rights cases
       requires appellate courts to accept the findings of fact and
       credibility determinations of the trial court if they are supported
       by the record. If the factual findings are supported, appellate
       courts review to determine if the trial court made an error of law
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2
  The order also established a concurrent goal of placement with a legal
custodian.



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        or abused its discretion. A decision may be reversed for an
        abuse of discretion only upon demonstration of manifest
        unreasonableness, partiality, prejudice, bias, or ill-will. The trial
        court’s decision, however, should not be reversed merely
        because the record would support a different result. We have
        previously emphasized our deference to trial courts that often
        have first-hand observations of the parties spanning multiple
        hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

        In his brief on appeal, Father makes no effort to challenge the

evidence supporting the trial court’s termination decree.         Instead, Father

focuses entirely on the court’s failure to appoint legal counsel for Child

pursuant to our Supreme Court’s recent holding in In Re Adoption of

L.B.M., 2017 Pa. LEXIS 1150 (corrected opinions filed May 23, 2017). In

L.B.M., the Court held that trial courts must appoint counsel to represent

the legal interests of any child involved in a contested involuntarily

termination proceeding pursuant to 23 Pa.C.S.A. § 2313(a).3             The Court

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3
    Section 2313(a) provides as follows.

        (a) Child.--The court shall appoint counsel to represent the
        child in an involuntary termination proceeding when the
        proceeding is being contested by one or both of the parents.
        The court may appoint counsel or a guardian ad litem to
        represent any child who has not reached the age of 18 years and
        is subject to any other proceeding under this part whenever it is
        in the best interests of the child. No attorney or law firm shall
        represent both the child and the adopting parent or parents.

23 Pa.C.S.A. § 2313(a).



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explained that a child’s legal interests are distinct from his or her best

interests, in that a child’s legal interests are synonymous with the child’s

preferred outcome, while a child’s best interests must be determined by the

court. Id. at *2-3. While Father concedes that Child was represented by his

dependency guardian ad litem (“GAL”) during the termination and goal

change hearing, Father insists that representation by a dependency GAL

does not comply with Section 2313(a). Father’s Brief at 8.

      Father is mistaken in his interpretation of L.B.M.      This Court has

explained that case’s holding as follows.

      As a point of information, Justice Wecht’s opinion in L.B.M states
      that the trial court is required to appoint a separate,
      independent attorney to represent a child’s legal interests even
      when the child’s GAL, who is appointed to represent the child’s
      best interests, is an attorney. Justice Wecht would hold that the
      interests are distinct and require separate representation. While
      Justice Wecht, joined by Justices Donohue and Dougherty,
      sought to so hold, four members of the court, Chief Justice
      Saylor and Justices Baer, Todd, and Mundy disagreed in different
      concurring and dissenting opinions with that part of the lead
      opinion's holding. Specifically, while the other justices agreed
      that the appointment of counsel for the child is required in all
      TPR cases and that the failure to do so by the trial court is a
      structural error, they did not join that part of Justice Wecht’s
      opinion which sought to hold that the GAL may never serve as
      counsel for the child. Rather, such separate representation
      would be required only if the child’s best interests and legal
      interests were somehow in conflict. . . .

In re D.L.B., 2017 Pa. Super. LEXIS 436 at *14-15 (filed June 15, 2017).

      In this case, we discern no conflict between Child’s best interests and

legal interests. With respect to Child’s best interests, Child was represented

during the termination and goal change hearing by Edna Moore, Esquire,

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who appeared on behalf of Child’s GAL, Marc Semke, Esquire.          Attorney

Moore reported that Attorney Semke supported the termination of Father’s

parental rights. N.T., 1/17/2017, at 54.

      With respect to Child’s legal interests, our review of the record does

not reveal that the GAL’s position differed from Child’s preferred outcome.

Child was just over four years old at the time of the termination hearing, and

it is clear that he was too young to provide any input on whether Father’s

parental rights should be terminated.      Moreover, as discussed in greater

detail below, the record indicates that Child is bonded with his pre-adoptive

foster mother, C.C. Id. at 35. Child’s relationship with Father is minimal, as

they have had no direct contact since at least October 2014, when Child was

less than two years old. Id. at 33, 59. Thus, we conclude that Attorneys

Moore and Semke represented both Child’s best interests and legal interests,

and that this dual role did not run afoul of L.B.M.

      We next consider the second issue presented in Father’s brief, in which

he challenges the order changing Child’s permanency goal from reunification

to adoption.   This Court employs the following standard of review when

considering an appeal from a goal change order.

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

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).


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               Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act,
         when considering a petition for a goal change for a dependent
         child, the juvenile court is to consider, inter alia: (1) the
         continuing necessity for and appropriateness of the placement;
         (2) the extent of compliance with the family service plan; (3) the
         extent of progress made towards alleviating the circumstances
         which    necessitated      the   original placement;     (4)   the
         appropriateness and feasibility of the current placement goal for
         the children; (5) a likely date by which the goal for the child
         might be achieved; (6) the child’s safety; and (7) whether the
         child has been in placement for at least fifteen of the last
         twenty-two months. The best interests of the child, and not the
         interests of the parent, must guide the trial court. As this Court
         has held, a child’s life simply cannot be put on hold in the hope
         that the parent will summon the ability to handle the
         responsibilities of parenting.

In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and

quotation marks omitted).

         In its opinion, the trial court found that Child’s best interests would be

served by changing his permanency goal from reunification to adoption. The

court found that Father’s incarceration prevented him from having direct

contact with Child throughout his dependency. Trial Court Opinion 2/28/17,

at 7. Father remained incarcerated at the time of the termination and goal

change hearing, and it was not clear when Father would be able to care for

Child.    Id. at 11-12.    In addition, the court found that Child resides in a

foster home with his two half-siblings, and that Child is strongly bonded to

his half-siblings and his foster mother. Id. at 10.

         Father argues that he parented Child successfully prior to his

incarceration, and that the trial court should have granted him another

opportunity to do so upon his release. Father’s Brief at 9-10. Father argues


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that he was unable to participate in reunification services while incarcerated,

but that he maintained contact with CYF and participated in several

programs provided by the prison. Id. at 10. Father further argues that he

anticipated being paroled by March 2017, and that he would be available to

care for Child within three months of his parole. Id.

       After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion. During the termination and goal

change hearing, CYF presented the testimony of caseworker Stephanie Lynn

Riddle. Ms. Riddle testified that Child has not seen Father since before his

incarceration. N.T., 1/17/17, at 33. As a result, Child has had only indirect

contact with Father throughout his dependency.        Id.   Ms. Riddle testified

that she was assigned to this case in approximately October 2016, and that

Father sent one card to Child since that time.     Id. at 21, 43. Father also

sent “two different fabrics that he had painted while he was incarcerated as

gifts[.]” Id. at 43.

       In contrast, Ms. Riddle testified that Child has lived with the same pre-

adoptive foster mother, C.C., since he was placed in foster care. Id. at 34,

45. Child is “very bonded” to C.C., and refers to her as “mom.” Id. at 35.

Child also has a good relationship with his two half-siblings, who live in the

same foster home.4 Id. at 41, 51.

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4
  Child’s half-siblings are the children of Mother, but not of Father.     N.T.,
1/17/17, at 41.



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      The trial court also heard the testimony of Father. Father testified that

he was incarcerated in October 2014, and that his maximum sentence will

expire in December 2018. Id. at 59, 69. Father reported that he is eligible

for parole, and that he hoped to receive a decision from the parole board

within approximately two to four weeks. Id. at 70. Father believed that he

would be released about two weeks after receiving a decision. Id. Father

planned to reside in a halfway house for approximately a month until he is

able to obtain a job and find other housing. Id. at 67, 75. Father estimated

that he would be able to care for Child within three months of being

released. Id. at 76.

      Thus, the record supports the trial court’s conclusion that changing

Child’s permanency goal to adoption is in Child’s best interest. While Father

estimated that he would be able to care for Child within several months, the

court was free to reject this estimate, and to conclude that Father’s ability to

care for Child remained speculative.    Moreover, Child has not seen Father

since at least October 2014, when Child was less than two years old. Father

has had only indirect contact with Child since that time, and the record

contains no indication that Child has a bond with Father or even remembers

who he is. In contrast, Child is bonded with his pre-adoptive foster mother,

C.C., and with his half-siblings, who reside in the same foster home. It was

within the court’s discretion to conclude that Child’s life should not be put on

hold any longer. As this Court has explained in the context of involuntary

termination of parental rights proceedings, “a child’s life cannot be held in

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abeyance while a parent attempts to attain the maturity necessary to

assume parenting responsibilities. The court cannot and will not subordinate

indefinitely a child’s need for permanence and stability to a parent’s claims

of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d

502, 513 (Pa. Super. 2006).

     Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Father’s parental rights and

changing Child’s permanency goal to adoption.      We therefore affirm the

court’s decree and order.

     Decree affirmed. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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