In the Interest of A.K., Appeal of: C.P.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2014
• Docket: 843 WDA 2014
• Status: Unpublished

Opinion

J-S53045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.K., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: C.P.

No. 843 WDA 2014

Appeal from the Order April 10, 2014 in the Court of Common Pleas of Indiana County Civil Division at No.: CP-32-DP-45-2012

BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014

dated and entered on April 10, 2014, in the Indiana County Court of

pursuant to Section 6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). In

its order, the trial court further directed that legal and physical custody of

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* Retired Senior Judge assigned to the Superior Court. 1 PLC is a placement option under the Juvenile Act that places custody of a

rights. See In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004). In such a scenario, the parents may still have visitation with their child if deemed appropriate by the trial court. See id. J-S53045-14

Child shall remain with the Indiana County Children and Youth Services 2 We affirm.

The trial court related the relevant facts and procedural history of this

case as follows:

[Mother and Father are the parents of Child].

On August 23, 2012, Father filed a Petition for Emergency

incarceration for alcohol/drug related offenses. At the time, Child was

and/or convictions under 23 Pa.C.S.A. § 5329. A proceeding occurred on August 29, 2012. A representative of [CYS] was present[,] as [CYS] was providing general protective services because of truancy. As a result of the proceeding, it was determined that Father also had an enumerated conviction from

enumerated convictions, custody was temporarily awarded to the maternal grandfather, [D.P.

this placement.

A continued special relief hearing occurred on October 12, 2012. Mother, who had been released from jail, appeared with Boyfriend. Father also appeared. Mother, Boyfriend and Father were not placement options because of their enumerated convictions. [M]aternal [G]randfather had recently died.

and she no longer wanted the Child in her custody. At the conclusion of the proceeding, Mother and Father signed a Voluntary Placement Agreement for foster care and the [trial c]ourt transferred jurisdiction of the custody case to juvenile court. A Dependency Petition was filed by [CYS] on October 23, 2012. Grounds under 42 Pa.C.S.A. § 6302(a)(1) were alleged. ____________________________________________

placement goal to PLC, nor is he a party to this appeal.

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An Adjudication and Disposition hearing occurred on November 8, 2012 and the Child was placed in the temporary legal custody of [CYS]. Placement was in foster care. The current permanent placement goal was return to parent. The Initial Permanency Review occurred on February 7, 2013. Mother was found to be in full compliance with the permanency plan and completed her initial treatment group at the Open

progress was moderate because she tested positive for Oxycontin on January 30, 2013. Boyfriend also tested positive for Oxycontin (which he was prescribed) and cocaine.

Mother continued with full compliance at the Permanency Review proceeding on June 27, 2013. However, her progress remained at the moderate level due to another positive drug test on February 7, 2013. At the September 26, 2013 Permanency Review hearing, Mother was in full compliance. She regularly attended the Open Door and began working with Justice Works, a human service agency. Her progress was rated as moderate because she had only recently started the program with Justice Works. Mother again achieved full compliance at the January 16, 2014 review. She completed intensive outpatient treatment on January 9, 2014 and started relapse prevention on January 14, 2014. Her progress was determined to be full because she passed all her drug screens and was consistent in working with Justice Works.

[CYS] filed a Motion for Permanency Review/Change of Goal on March 24, 2014. The request for change of goal was based on credible information that [CYS] received about the sale

During a meeting with [CYS], which occurred on January 30,

other information received by [CYS]. Father was not a placement option because of a change in his living circumstances. As a result, [CYS] requested a goal change to

relationship with her Mother.

A Permanency Review/Change of Goal hearing occurred on April 10, 2014. Present was the [CYS] Solicitor, Mother and her court appointed counsel, Father, who participated by phone from

Litem. The Child was interviewed in camera. Testimony was

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- [3]

[trial c]ourt approved the change of goal. (Trial Court Opinion, 6/10/14, at 1-4 (footnote omitted)).

On May 13, 2014, Mother simultaneously filed a timely Notice of

Appeal and a Concise Statement of Errors Complained of on Appeal,

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Mother raises two questions for our review:

1. Did the trial court abuse its discretion by failing to

2. Did the trial court abuse its discretion by granting a change of goal where Mother had been in full compliance with the permanency plan and where there was no evidence that Mother attempted to sell drugs?

Our standard of review for an order granting a petition to change a

of discretion.

When reviewing such a decision[,] we are bound by the facts as found by the trial court unless they are not supported in the record. Furthermore, in a change of goal proceeding, the trial court must focus on the child and determine the goal in

her parents.

At each review hearing concerning a child who has been adjudicated dependent and removed from the parental home, ____________________________________________

3 Ex- See N.T. Hearing, 4/10/14, at 5). When Mother and Ex-Husband divorced in 1997, Ex-Husband petitioned for and was granted primary physical and legal custody of their two children. (See id. at 6).

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the trial court must consider: the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.

focus on the best interests of the child.

In addition[, a]lthough bound by the facts as found by the trial court and supported by the record, we are not bound by the

we must exercise our independent judgment in reviewing the s of fact, and must order whatever right and justice dictate. We review for an abuse of discretion. Our scope of review, accordingly, is of the

ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight -finding function because the court is in the best position to observe and rule on the credibility of the parties and the witnesses.

In re H.V., 37 A.3d 588, 593 (Pa. Super. 2012) (citation omitted).

Section 6351(f) of the Juvenile Act prescribes the pertinent inquiries

for the reviewing court as follows:

(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 child.

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(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.

(6) Whether the child is safe.

42 Pa.C.S.A. § 6351(f)(1)-(6). Additionally, Section 6351(f.1)(3) of the Juvenile Act authorizes the

trial court to grant a goal of PLC if the trial court decides that neither

1)(3). In a

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

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

contrast, in a termination of parental rights proceeding, the focus is on the

conduct of the parents under 23 Pa.C.S.A. § 2511. See In re M.B., 674

A.2d 702, 705 (Pa. Super. 1996), appeal denied, 688 A.2d 172 (Pa. 1997).

Finally, the court also must consider the bond between the child and his

parents, foster parents, and siblings. See In re H.V., supra at 594-95.

In her first issue on appeal, Mother contends that the trial court

committed an abuse of discretion in failing to accord proper weight to her

testimony. (See M

charged with the responsibilities of evaluating credibility of the witnesses

and resolving any conflicts in the testimony. In carrying out these

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responsibilities, the trial court is free to believe all, part, or none of the

In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006)

supported by competent evidence of record, this Court will not revisit the

See In re

K.C., 903 A.2d 12, 16 (Pa. Super. 2006).

In its Rule 1925(a) opinion, the trial court explained its reasoning for

according le

as follows:

During the April 10, 2014 hearing[,] the [trial c]ourt heard testimony from [Ex-Husband], [CYS] caseworker[] Joseph

. . . [Ex-Husband] testified that[,] on January 9, 2014, he intercepted a text message from Mother to [Daughter]. The text

[Ex-Husband] un be drug related names of strains of marijuana. [Ex-Husband] spoke to [Daughter] and she confirmed that Mother and Boyfriend were using and selling drugs.

message to [Daughter] into evidence. Phone records showed that the text message was sent to [Daughter] at 7:53 p.m. and that [Ex-Husband] called Mother at 8:45 p.m. to confront her and Boyfriend about what he perceived to be an offer of drugs to [Daughter]. [Ex-Husband] stated that Mother denied that she was using or in possession of any drugs and told [Ex-Husband] that [Daughter] used marijuana. [Ex-Husband] informed Mother

office. . . .

The [trial c]ourt finds [Ex- the text message, the implications of the text message and the conversation with Mother credible. While [Ex-Husband] was

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testimony was supported through a [screenshot] of the text message as well as phone records, which were entered into evidence by [CYS]. [Ex- supported by evidence that he did consult his attorney for advice on how to keep Mother from interacting with [Daughter]. In addition, contact was made with local law enforcement and [CYS].

Next, the [trial c]ourt heard testimony from [CYS caseworker] Joseph Petruna . . . .

Following [Ex- investigation and scheduled a meeting with Mother, Boyfriend

Mother offered an explanation for the text message. She asserted that [Daughter] is part of her support system and she wanted to share a success with her. According to Mr. Petruna,

peddle this stuff and she responded by showing him out and it Mother told Mr. Petruna that the text message to [Daughter] was not complete and that she was prevented by [Ex- second part of the message. [CYS] reviewed phone records provided by [Ex-Husband]. The records establish that the text was sent at 7:53 p.m. [Ex- until 8:45 p.m., 52 minutes later.

Mr. Petruna researched Purple Halo and Og Kush and confirmed that both are types of marijuana. . . . Mr. Petruna confirmed that a subseque produced no illegal substances and that charges have not been filed against Mother or Boyfriend. After meeting with Mother,

activities and judgment, even though Mother, who was being tested regularly by the Open Door, had not had a positive drug screen since February 2013.

her explanation at the January 30 meeting. Mother also testified as to her year of sobriety and pride in that accomplishment.

encountered drugs right in front of my face and not even [had]

this accomplishment. Mother described [Daughter] as an

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integral part of her support system. She said she celebrated recovery milestones with [Daughter]. Mother asserts that a

a complete text message to [Daughter]. According to Mother[,] she was also speaking to another daughter [at the time].

able to retrieve phone records to establish a chronology. Significantly, Mother did not offer these records into evidence to explain the 52 minute lapse between the alleged incomplete text message to [Daughter] and [Ex- ugh Mother describes [Daughter] as being an important person in her support system, [Daughter] did not appear and testify on

Mother adamantly denied that she told [Ex-Husband] that [Daughter] smoked [marijuana]. In response to a question from the Guardian [A]d Litem, Mother explained that she shared the names of the marijuana in the text to [Daughter] because she

* * *

than to the other witnesses. In reviewing the testimony of Mother, the [trial c]ourt does not find her explanation for the text message and events that transpired credible. A plain reading of the text message is that Mother is offering marijuana to [Daughter]. Her explicit mention of Purple Halo and OG Kush inds of stuff he got sent

be plainly read as a transactional and an on-going relationship between the Boyfriend and his supplier. While a search of

occurred after Mother was told by [Ex-Husband] that he would contact law enforcement.

The [trial c]ourt believes it is entirely reasonable to find Mother less credible than the other witnesses. Mother had no sufficient explanation for why she did not complete the text message to [Daughter] in the 52 minutes that elapsed from the

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time of the text until [Ex- have provided substantiating evidence, such as phone records,

absence was especially glaring, since Mother considers her to be a crucial support person. As previously mentioned, a plain interpretation of the text points to a transactional relationship between Boyfriend and the person who came to the residence on January 9th. The text reads like an advertisement, mentioning,

intent to demonstrate her commitment to sobriety, then the message should have conveyed the availability of drugs and a refusal to use. Instead,

and it is rational to assume that such po part establishes that in the 15 months that the Child has been in placement, Mother has not progressed to provide the Child with proper parental control and care. (Trial Ct. Op., at 9-16 (citations omitted)).

We conclude that the t

require this Court to revisit and essentially reverse the trial court in its

credibility determinations. Accordingly, we discern no abuse of discretion on

this issue.

In her second issue on appeal, Mother contends that the trial court

(See

ful

Mother was in full compliance with the permanency plan at each of her

Id. at 15 (quoting Trial Ct. Op., at 18)).

was having trouble getting Mother to schedule a drug test in February

[2014], Mother testified that she was continuing to be tested at [t]he Open

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Door, and the caseworker testified that as far as he was aware, [t]he Open

Id.).

In addition, Mother argues that her text message to Daughter was

insufficient evidence to support

search of her residence produced no illegal substances and did not result in

criminal charges being filed against her. (See id. at 16-17). Ultimately, it is

Id. at 17). We disagree.

In its opinion, the trial court explained the basis for its determination

ncy placement goal

be changed from reunification to PLC, as follows:

[W]hile [Mother] has consistently maintained full compliance [with the permanency plan], she has not progressed sufficiently

drug tests on January 30, 2013 and February 7, 2013. Boyfriend, who Mother resides with, also tested positive for cocaine during this time. While Mother achieved full progress at the January 16, 2014 hearing, this determination was made without considera progress at the April 10, 2014 hearing was downgraded to minimal because of the safety risk posed by her actions and poor judgment.

As in In re S.B., 943 A.2d 973, 983 (Pa. Super. 2008), where the Court determined that although the natural parents had remained in full compliance with the permanency plan, it was still in the best interest of the child to grant a change of goal from reunification to adoption. In the instant case, Mother has

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complied with the permanency plan, but has made insufficient progress to alleviate the issues that necessitated the original

involvement in services and treatment, she has had two positive drug tests, illicit drug activity at her residence, and demonstrated poor judgment. Following the January 16th [permanency review hearing], [] Mother did not respond to contacts from [CYS]. While in placement, the Child has achieved stability and academic success. [Child] is developing a relationship with her Father and expressed her wish to Father to remain with her foster family should she be unable to return to Mother. The [trial c]ourt has determined . . .

. . . that neither reunification nor adoption are appropriate goals for the Child at this time. . . . Mother has been unable to remedy the issues present at dependency to the standard that would allow for the health and safety of the Child. [PLC] is the

physical, mental and moral welfare[.] [C]hild has flourished in

improved and she has expressed a desire to remain with her foster parents, while continuing to visit and maintain a relationship with Mother. As Mother has demonstrated continued poor judgment and compelling, credible evidence of continued illegal activity in the home was presented to the [trial c]ourt, the [trial c]ourt finds that it is in the best interest of the Child to change the permanency goal from reunification to [PLC]. (Trial Ct. Op., at 18-20 (citations omitted)).

We find that there is competent evidence in the record to support the

permanency plan, Mother made insufficient progress toward alleviating the

goal from reunification to

PLC and we discern no abuse of discretion on the part of the trial court in so

ordering.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014

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