In the Int. of: A.M., a Minor

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2024
• Docket: 1361 MDA 2023
• Status: Unpublished

Opinion

J-A02041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: R.Z., MOTHER : : : : : No. 1361 MDA 2023

Appeal from the Order Entered September 19, 2023 In the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-DP-0000141-2022

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J: FILED: MARCH 20, 2024

R.Z. (“Mother”) appeals from the order changing the primary

permanency goal of her daughter, A.M. (“Child”), born in January 2018, from

reunification to adoption.1 We affirm.

We glean the relevant facts and procedural history of this matter from

the certified record. The York County Office of Children, Youth & Families

(“CYF”) has an extensive history with Mother.2 In April 2022, CYF received a

general protective services report alleging that Mother was abusing illegal

substances. See N.T., 6/20/22, at 6-7; see also Order of Adjudication,

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1 According to the certified record, Child’s father is deceased.

2 The record indicates that Mother consented to the termination of her parental

rights with respect to another child during the pendency of the instant case. See N.T., 5/18/23, at 56. J-A02041-24

6/30/22, at 1. On the same date, Mother tested positive for amphetamines,

cocaine, and marijuana. See Order of Adjudication, 6/30/22, at 1. As a result,

CYF implemented a safety plan in the home which mandated that Child’s

maternal grandmother was to supervise all contact between Child and Mother.

See id. at 1-2. In June 2022, after learning that Mother had violated the

safety plan by having unsupervised contact with Child, CYF obtained

emergency protective custody of Child, who was then placed with a foster

family.3 Following a shelter care hearing, the court continued Child’s

placement. Thereafter, the court adjudicated Child dependent on June 30,

2022.

In furtherance of Child’s initial permanency goal of reunification, the

court ordered Mother to submit to drug screens, attend visitation with Child,

undergo a drug and alcohol evaluation and follow any resulting

recommendations, participate in mental health therapy, engage in domestic

violence counseling, maintain stable housing and employment, and generally

comply with CYF’s directives. See Order, 5/25/23 at 1; N.T., 6/30/22, at 5.

At review hearings conducted between October 2022 and May 2023, the

dependency court determined that Mother had made minimal progress

3 On October 6, 2022, Child was placed in a new foster home with E.B. (“Foster

Mother”) and E.B.’s husband, B.B., where Child has remained throughout these proceedings. Despite some behavioral difficulties from Child, which Foster Mother has engaged services to address, Foster Mother reports that Child is doing well. See N.T., 9/18/2023, at 46-47.

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towards alleviating the circumstances that brought Child into CYF’s care and

custody. See Order, 12/1/22, at 1-2; Order, 5/25/23, at 1-2. Mother never

progressed beyond supervised visitation. Further, although she claimed to be

qualified for a medical marijuana card, Mother never obtained one, and her

drug screens were consistently positive for marijuana and alcohol. See N.T.,

6/20/22, at 17; see also, N.T., 9/18/23, at 52-53. Mother obtained housing

with her current paramour, but CYF determined that her living situation was

inappropriate because her paramour had previously been convicted of crimes

involving children, specifically, corruption of minors. See N.T., 9/18/23, at

34, 37. Additionally, Mother had been in an abusive relationship with a former

boyfriend, with whom she continued to engage after Child was removed from

her care. See N.T., 3/14/23, at 11; see also Order, 10/6/22, at 2.4 The

court, in its May 2023 review order, cautioned Mother that while the primary

goal was reunification, the court could change the goal to “a more appropriate

goal” if she did not make substantial progress or make reunification imminent.

Order 5/25/23, at 3.

On September 18, 2023, the parties appeared for a hearing before a

juvenile court hearing officer (“hearing officer”). CYF requested a change in

4 During one visit, Mother’s former boyfriend pulled a weapon on a bystander

outside of the visitation center. See Order, 10/6/22, at 2.

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Child’s permanency goal from reunification to adoption.5 Mother, who left

during the hearing to attend her first domestic violence counseling session,

was represented by counsel. Child, who was five years old at the time of the

hearing, was represented by a guardian ad litem. Although Mother did not

testify, she presented testimony from D.H., Child’s maternal grandmother. At

the conclusion of the hearing, the hearing officer docketed a proposed order

with her findings and recommendation, which included a goal change to

adoption with a concurrent goal of permanent legal custodianship with a

relative.6

The dependency court, in the order entered September 19, 2023,

adopted the hearing officer’s proposed order and changed Child’s goals to

5 The parties agreed to the hearing before the hearing officer. See N.T., 9/18/23, at 3-4. CYF first discussed a possible goal change to adoption in the middle of the hearing during testimony from a caseworker. See id. at 56. CYF’s counsel then argued in favor of a goal change. See id. at 69.

6 We are mindful that Pa.R.J.C.P. 1187(A)(1)(c) limits the authority of a hearing officer to preside over any hearing in which any party seeks to change the goal to adoption and, therefore, calls into question the appropriateness of the procedures leading to the dependency court’s order for a goal change to adoption. However, Mother did not object on this basis, nor has she discussed Rule 1187(A)(1)(c) in her appellant’s brief. Given our Supreme Court’s disapproval of an appellate court’s raising of an issue sua sponte, we highlight Rule 1187(A)(1)(c) for the benefit of the court and the hearing officer in future proceedings, but we will not address the rule as a basis for relief in this appeal. See Gibraltar Rock, Inc. v. Department of Environmental Protection, 286 A.3d 713, 723-24 (Pa. 2022) (noting that “where the parties fail to preserve an issue for appeal, [an appellate court] may not address the issue, even if the disposition of the trial court was fundamentally wrong”) (internal citation and quotation omitted).

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adoption with a concurrent goal of permanent legal custodianship with a

relative. Mother timely filed a notice of appeal 7 and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The court filed a statement pursuant to Rule 1925(a), referring this Court to

the findings set forth in its September 19, 2023 order.

On appeal, Mother presents two issues for our review:

1. Whether the juvenile court erred as a matter of law and/or abused its discretion by changing the court ordered goal despite the testimony of progress made by Mother?

2. Whether the juvenile court erred as a matter of law and/or abused its discretion when it changed the court ordered goal from reunification to adoption without clear and convincing evidence that a change of goal would serve the best interests of . . . Child?

Mother’s Brief at 4 (some capitalization omitted).

It is well settled that the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365,

governs the placement and custody of a dependent child. See In re N.C.,

909 A.2d 818, 823 (Pa. Super. 2006). This Court reviews an order regarding

a dependent child's placement goal pursuant to an abuse of discretion

7 Mother stated she was appealing from the order dated September 18, 2023,

presumably referring to the date of the hearing officer’s initial findings and recommendations, which the court subsequently adopted in an order entered September 19, 2023. We note that the hearing officer’s proposed order was interlocutory until it was confirmed by the court. See In re C.V., 882 A.2d 481, 488 (Pa. Super. 2005). Because the dependency court’s September 19, 2023 order confirmed the hearing officer’s findings and recommendations, this appeal is properly before this Court. We have amended the caption to reflect that this appeal arises from the court’s order entered September 19, 2023.

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standard. See Interest of H.J., 206 A.3d 22, 25 (Pa. Super. 2019). “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.” In re N.C., 909 A.2d at 822-23

(internal citations and quotations omitted).

Our scope of review is of the broadest possible nature, and this Court

will ensure that the record represents a comprehensive inquiry and that the

hearing judge has applied the appropriate legal principles to that record. See

In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011). This Court affords great

deference to the trial court’s findings of facts that are supported by the record.

See Interest of H.J., 206 A.3d at 25. If the record supports the trial court’s

findings, this Court will affirm, even if the record could also support an

opposite result. See id.

When reviewing the trial court's goal change order, we are mindful that

the focus of all dependency proceedings, including goal change proceedings,

is on the safety, permanency, and well-being of the child and that the best

interest of the child must take precedence over all other considerations. See

id. Pursuant to 42 Pa.C.S.A. § 6351(f), the trial court must consider numerous

factors, including the appropriateness and feasibility of the current placement

goal for the child at each permanency review hearing. See 42 Pa.C.S.A.

§ 6351(f)(4). If the trial court determines that reunification with a parent is

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not in a child's best interest, the court may change the child’s goal to adoption.

See 42 Pa.C.S.A. § 6351(f.1)(2). A goal change to adoption does not

terminate parental rights to a child, but “is a step in that direction.” See

Interest of H.J., 206 A.3d at 25 (internal citation omitted).

This Court recognizes that “[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[,]” and that an agency should complete the

placement process within eighteen months. Id. (internal citation and

quotations omitted). Further, an agency must make reasonable efforts to

return a child to a biological parent. See Interest of T.M.W., 232 A.3d 937,

947 (Pa. Super. 2020). However, when an agency’s reasonable efforts fail,

the agency shall redirect its efforts towards placing the child in an adoptive

home. See In re N.C., 909 A.2d at 823. Once the trial court sets a goal to

adoption, an agency is no longer required to provide services to a parent. In

re S.B., 943 A.2d 973, 978 (Pa. Super. 2008).

Although Mother presents two separate claims for relief, she essentially

presents a single argument for our consideration, i.e., whether the court

abused its discretion or erred legally in weighing the evidence presented at

the goal change hearing on September 18, 2023. Mother contends she

substantially complied with her court-mandated objectives and is significantly

closer to reunification with Child than she was at the start of the case. See

Mother’s Brief at 10-11. Mother submits that she has obtained suitable

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housing and employment, completed a drug and alcohol evaluation, and not

tested positive for any illegal substances except marijuana since January

2023. See id. at 11. Finally, Mother asserts that CYF did not present

testimony that changing Child’s goal to adoption was in Child’s best interest.

See id. at 14.

The court concluded that changing Child’s primary permanency goal to

adoption was appropriate due to Mother’s lack of progress with respect to her

court-mandated goals. See Order, 9/19/23, at 3 (“The current placement

goal is not appropriate and/or feasible, in that Mother has been making

minimal to moderate progress on her court-ordered goals and services”). The

court referred to, inter alia, Mother’s failures to: (1) begin domestic violence

counseling in a timely manner; (2) progress in her visitations with Child; (3)

secure appropriate housing and employment; and (4) consistently engage

with drug and alcohol treatment. See id. at 1-2. Based upon this evidence,

the court deemed that changing Child’s permanency goal would best serve

Child’s safety, permanency, and well-being.

Our review establishes that the record supports the dependency court’s

determinations. Primarily, Mother failed to engage in domestic violence

counseling until just prior to the goal change hearing. See N.T., 9/18/23, at

19 (indicating that Mother completed her initial intake for domestic violence

treatment on August 17, 2023). Brittany Sunday (“Ms. Sunday”), a clinical

supervisor and family therapist with Catholic Charities, testified that she and

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her agency had attempted to enroll Mother in domestic violence counseling

since December 2022, but Mother repeatedly cancelled her intake

appointments. See id. at 19-20.8

With respect to visitations, Mother, since October 2022, had one two-

hour supervised visit with Child per week . See Order, 10/6/22, at 2; see

N.T., 9/18/23, at 39. In December 2022, the agency supervising visitation

had implemented a “double confirmation” policy due to Mother’s inconsistent

attendance.9, 10 See N.T., 12/1/22, at 11. In May 2023, the court informed

Mother that visitation could be expanded to a second visit each week if she

did not miss a drug test for four straight weeks and tested negative each time.

See N.T., 5/25/23, at 37. Mother, however, did not comply. By the time of

the September 2023 hearing, Catholic Charities had reduced Mother’s

visitation to a weekly one-hour visit with Child in case Mother had another

unexcused absence and Catholic Charities closed its services. See N.T.,

9/18/23, at 39. David Kasberg (“Mr. Kasberg”), a family advocate, reported

8 Catholic Charities assisted Mother with obtaining employment, supervising

visits, developing a budget, and completing a parenting course. Ms. Sunday also indicated that because Mother missed appointments, Catholic Charities placed Mother on an “appointment contract,” meaning that Catholic Charities, would close its services if Mother had one more unexcused absence. See id. at 21-22.

9 The policy required Mother to call-in before the visit to confirm her attendance and for her to arrive early to the visits to ensure her participation.

10 From August 2022 to December 2022, Mother attended ten of fifteen visits

with Child. See N.T., 12/1/2022, at 10-11.

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that Mother had completed a parenting program and socialized with Child

appropriately, but she continued to rely upon the visitation supervisor when

Child needed redirection. See id. at 33.

Regarding Mother’s residence, Mr. Kasberg testified that Mother

continued to live with her paramour, who had been charged with corruption

of minors. See id. at 37. Although Mr. Kasberg deemed Mother’s residence

to be “environmentally appropriate,” he testified, “[I]t’s an inappropriate place

[for Child]” due to the paramour’s criminal history. See id. at 34. Mother is

employed at Bob Evans, but the certified record also indicates that Mother’s

job offered her limited hours and was insufficient to financially sustain her.

See id. at 33-34.

As to Mother’s drug and alcohol treatment, Mother has attended

counseling for drugs and alcohol since August 2022 and successfully abstained

from “potent drugs,” such as cocaine. Id. at 9. However, Mother has

consistently tested positive for marijuana and alcohol, and she has not

obtained a medical marijuana card. Tanner Swarr (“Ms. Swarr”), a CYF

caseworker, testified that Mother had been tested eight to twelve times per

month since the May 2023 hearing, and Mother tested negative only four

times, while testing positive twenty-five times, and failing to appear seven

times. See id. at 52-53. Notably, Mother represented to the court that she

would stop using marijuana to get Child back, but she failed to do so even

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after the court offered her expanded visitation if she provided clean drug tests.

see N.T., 5/25/23, at 37, 39-41.

Regarding Child’s relationship with Mother, the record is silent as to

whether Mother ever involved herself in Child’s care beyond weekly supervised

visitation. By contrast, Ms. Swarr testified that Child’s foster parents are

bonded with Child. See N.T., 9/18/23, at 59. Foster Mother testified that she

desires to be a “long-term resource” for Child. See id. 49-50. Foster Mother

also explained that she has engaged resources for Child, namely mental health

therapy and occupational therapy, because Child has displayed aggressive

behaviors at times. See id. at 44-48.

In sum, we conclude the record supports a finding that in the more than

fifteen months since Child was in CYF’s custody, Mother’s progress was

minimal to moderate, and she had not made reunification a realistic prospect.

We acknowledge that Mother had made some progress and demonstrated an

increased willingness to work toward reunification before the September 2023

hearing. Nevertheless, “[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.” Interest of H.J., 206 A.3d at 25 (internal citation and quotations

marks omitted). Furthermore, Child’s best interest, including Child’s interest

in permanency, controls, not necessarily Mother’s progress or her bond with

Child. See Interest of J.B., 296 A.3d 1234, 1239 (Pa. Super. 2023). Based

on the foregoing, we discern no abuse of discretion by the dependency court

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in determining that it is in Child’s best interest to change her permanency goal

to adoption.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 3/20/2024

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