J-S23014-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.P. NATURAL FATHER No. 1588 WDA 2018
Appeal from the Order Entered October 22, 2018 In the Court of Common Pleas of Erie County Juvenile Division at No(s): CP-25-DP-0000170-2017
IN THE INTEREST OF: R.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.P. NATURAL FATHER No. 1589 WDA 2018
Appeal from the Order Entered October 22, 018 In the Court of Common Pleas of Erie County Juvenile Division at No(s): CP-25-DP-0000171-2017
IN THE INTEREST OF: J.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.P. NATURAL FATHER No. 1590 WDA 2018
Appeal from the Order Entered October 22, 2018 In the Court of Common Pleas of Erie County Juvenile Division At No(s): CP-25-DP-0000172-2017
IN THE INTEREST OF: E.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.P. NATURAL FATHER No. 1591 WDA 2018
Appeal from the Order Entered October 22, 2018 In the Court of Common Pleas of Erie County Juvenile Division At No(s): CP-25-DP-0000173-2017 J-S23014-19
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 31, 2019
J.P. (Father) appeals from the orders, dated October 19, 2018, and
entered on the docket in the Court of Common Pleas of Erie County on October
22, 2018, which changed the permanency goal for his four sons to adoption.1
Following extensive review, we affirm.
On appeal, Father’s brief lists the following questions for our review:
1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW BY FINDING MINIMAL COMPLIANCE WITH THE COURT[-]ORDERED TREATMENT PLAN IN ITS ORDER OF OCTOBER 10, 2018, WHEN THE REASONS FOR THE ADJUCIATION [sic] OF DEPENDENCY[,] ABUSE, UNSTABLE HOUSING, HOME INFESTATION OF MICE AND BED BUGS, DOMESTIC VIOLENCE, LEAVING [MOTHER] IN A CARETAKING ROLE, FAILURE TO PROTECT CHILDREN FROM ABUSE, FAILURE TO SEEK SERVICES FOR HIS MENTAL HEALTH, AND LACK OF FOLLOW THROUGH WITH SERVICES HAD BEEN ALLEVIATED[?]
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW/FACT WHEN IT DENIED THE [SUBPOENAS] ISSUED BY THE FATHER TO HAVE THE MINOR OLDER CHILDREN, D.P. AND R.P., AGED 12 AND 9, APPEAR AND TESTIFY IN CAMERA AT THE CHANGE OF GOAL HEARING[?]
3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW BY FAILING TO APPOINT AN ATTORNEY FOR THE MINOR CHILDREN, D.P. AND R.P[.,] IN THE CHANGE OF GOAL HEARING[?]
4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW BY DENYING []
* Retired Senior Judge assigned to the Superior Court.
1 B.D. (Mother) also filed appeals from the orders that granted the goal change for each of her sons. Mother’s appeals are docketed at Nos. 1604 WDA 2018, 1605 WDA 2018, 1606 WDA 2018 and 1607 WDA 2018. J-S23014-19
FATHER’S MOTION FOR SPECIAL RELIEF REQUESTING THAT THE COURT RE-OPEN THE RECORD TO APPOINT COUNSEL FOR THE CHILDREN AND HAVE THE COUNSEL ADVISE THE COURT OF THE CHILDREN’S WISHES REGARDING THE CHANGE OF GOAL[?]
5. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW BY FAILING TO GIVE APPROPRIATE WEIGHT TO THE UNCONTROVERTED TESTIMONY THAT THERE WAS A BOND BETWEEN SOME OF THE CHILDREN AND [] FATHER[?]
6. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITED AN ERROR OF LAW BY FAILING TO ACKNOWLEDGE THAT THE CHILDREN HAD BEEN IN PLACEMENT FOR LESS THAN ONE YEAR BEFORE A CHANGE OF GOAL PETITION WAS FILED, WHEREBY NOT GIVING FATHER SUFFICIENT TIME TO RECITFY [sic] THE CONDITIONS FOR REMOVAL OF CHILDREN[?]
7. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW WHEN IT FAILED TO RECOGNIZE THAT AT THE MAY 23, 2018 REVIEW HEARING, REUNIFICATION WITH FATHER WAS THE GOAL BY END OF SUMMER, 2018, AND FIVE (5) WEEKS LATER FILED A MOTION FOR CHANGE OF GOAL TO ADOPTION; A DECISION THAT WAS NOT SUPPORTED BY THE EVIDENCE[?]
8. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW BY CHANGING THE GOAL TO ADOPTION AFTER ONE INDISCRETION BY FATHER ALLOWING CONTACT WITH ONE CHILD WITH MOTHER DURING AN UNSUPERVISED VISIT ON JUNE 25, 2018, WHEN ALL OTHER REMEDIAL MEASURES HAD BEEN ACCOMPLISHED[?]
Father’s brief at 5.
We review issues relating to the changing of the placement goal for
children to adoption pursuant to the following:
[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 J-S23014-19
the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010).
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 re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinion authored by the Honorable
Shad Connelly, senior judge of the Court of Common Pleas of Erie County,
filed on January 14, 2019. We conclude that Judge Connelly’s extensive and
well-reasoned opinion disposes of the issues raised by Father. In particular,
we note that Father is primarily seeking to have this Court reweigh the
evidence in a light more favorable to him. However, it is beyond our purview
to disturb the credibility determinations of the trial court when the testimony J-S23014-19
relied upon by the trial court is supported by the record. The trial court was
free to conclude that Father was unlikely to remedy his problems in the near
future; thus, the permanency needs of Children dictate changing their goal to
adoption. Accordingly, we adopt Judge Connelly’s opinion as our own and
affirm the orders appealed from on that basis.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/31/2019 Circulated 05/07/2019 08:11 AM
�.a . r---'> c:, ,= r-: ri 0 r'f:, IN THE INTEREST OF D.P., R.l>., J.P., and E.P., IN THE COURT OF co�MeN Minors OF ERIE COUNTY, PENNStji,V�IA'.:;; Adjudicated Dependent JUVENilE DIVlSlON ;c!�;:1 -:: ��0s; � ( ·· ... ' . ' Q'."'2'���::: {. APPEAL OF J.P;, NO. 170, 171, 172, 173 OF 2�ij_--< -: \_ Natural Father y' z� s: , .,
JUDGES COP 1925{a) OPINION
On October 22, 2018 an order was entered in a dependency action changing the goal to
adoption for D.P., R.P., J.P., and E.P., minor children of J.P. (Appellant/Father). The father now
challenges that order. The father is contending this court erred in several respects when it
eliminated reunification as a goal. The record supports that the finding of change of goal to
adoption was established by clear and convincing evidence and is in the best interests of the
child. It is therefore requested the Superior Court affirm the order.
PROCEDURAL IDSTORY AND FACTS tP. . D.P., born Junef, 2006; - born January., 2009; J.P., born May4', 2012; and E.P.,
born October., 2015, are all chilcJ,u'lf{-13.D., natural mother, and J.P., natural father. The
family had been living in North Carolina, but moved to Erie. In May, 20.17, OCY received
allegations that the mother had physically assaulted some of the children. The father fiied a PFA
Petition on behalf of the children against the mother that was eventually withdrawn. Services
were opened with OCY in May, 2017, but ultimately, all four children were removed from the
parents' care and placed in foster care. An Adjudication/Dispositional Hearing was held on
August 14, 2017 before this court. OCY had filed Dependency Petitions for the children. The
parents stipulated that their children were without proper parental care or control based upon the
following allegations: 1. The (parents have) a history with the Agency due to concerns of abuse, unstable housing, domestic violence, and lack of follow through with services. Furthermore, the family was involved with ongoing services since May, 2017 and (they) failed to alleviate the issues; 2. The (patents) have an extensive history in North Carolina due to concerns of physical abuse, neglect, deplorable home conditions, and drug and alcohol abuse. The cases in North Carolina were ultimately unfounded and closed by CYS. 3. The (parents) have failed and/or are unwilling to provide a safe and stableliving environment, Furthermore; the home had an infestation of mice and bed bugs in May, 2017 and the conditions have since worsened resulting in the family being evicted. 4. The (parents) have failed and /or are unwilling to seek treatment for (their) mental health
the mother additionally admitted:
5. (The mother) has previously had two children removed from her care over 20 years ago and successfully placed for adoption; 6. (The mother) has physically abused the minor (children). Furthermore, the (children) reported that (they are) fearful of (the mother) due to her hitting, scratching, pulling (their) hair, and throwing objects at (them); 7. (the mother) has a criminal history including Aggravated Assault and Criminal Conspiracy.
The father additionally admitted:
5. (The father) has failed to prevent physical abuse to the minor (children). Furthermore (the father) disclosed witnessing the abuse and negle.ct of his (children) on multiple occasions; however he has failed to protect the (children); 6. (The father) has failed to provide a safe and stable home for· the minor (children). Furthermore, he continues to leave (the mother) in a caregiver role despite witnessing abusive behaviors.
Services had been extended to the family prior to the necessity of the children's removal
and adjudication of dependency. Calls were received by OCY in May, 2017 alleging physical
abuse to the children. Investigations determined the abuse was unfounded, but services were
opened. Subsequently, J.P. filed a Protection Froin Abuse Act Petition on behalf of the children
against the mother, B.D. Prior to any action on the petition, the children were removed and the
dependency actions begun. The court issued a: Dependency/Dispositional Order on August 17,
? 2017, finding all 4 children dependent based upon the stipulated allegations of fact, and ordering
the parents to be involved with a number of services. ihe goal was reunification of the family.
One of the main agencies involved with the family was Family Based Mental Health.
Jessica Edmunds was the therapist assigned to the family. Edmunds began working with the
family in June, 2017, and described the program as providing services in therapy, case
management and crisis. ( 10/10/2018 N. T p. 5). The goals or problem areas being addressed with
the family were community- maintaining contact with all family service providers; family-
boundaries and expectations and consequence with the parents, including anger management
and parenting techniques; and individual - needs such as coping and communication skills.
(10/10/2018 N. T. p. 5-6).
Initially, J.P. and B.D., the parents, were together in sessions. However, their relationship
during the sessions was deemed "too toxic" by Ms. Edmunds, meaning constant arguments,
disagreements, an overall unhealthy atmosphere. Eventually, the joint sessions were terminated,
and the parents were seen individually once they had split up. Id. J.P. wanted one of his goals to
be distancing himself from B .D. The father indicated on more than one occasion· that he 'needed
to distance himself from the mother. (1 Oil 0/2018 N. t. pp. 35-36, 37-38) . Despite the positive
effort J.P. appeared to be giving with Ms. Edmunds' and the program, she found that he would
normally take two steps forward, and then two back, Something would cause him to become
upset and be mote negative. (10/10/2018 N.T p. 9). Although J.P. had stipulated to the finding of
dependency of his children, he would tell Ms. Edmunds that the children shouldn't have. been
removed. (10/10/2018 N.T p. 37).
B.D. would participate in sessions and read the materials she was given .. However, the
mother disagreed with all the parenting techniques with which she was instructed. B.I). never agreed with any of the materials she was given for the purpose of helping to raise her children.
(10/10/2018 NT. pp. 33, 36). B.D. was terminated from the Family Based Mental Health
program in July, 2018 because she was deemed not therapeutically appropriate as she refused to
utilize the materials she was provided, and was surreptitiously recording therapy sessions.
(10/10/2018 N.T. pp. 6�7, 17).
The precipitating event which led to the termination of B.D. from the Family Based
service occurred on June 19, 2018. The mother was having a supervised visit withthe oldest
child, D.P. Ms. Edmunds was supervising the visit and was observing it behind a one-way
mirror at OCY. The child was not in a good mood, and the mother constantly pressed him as to
what was wrong. D.P indicated that the mother wasn't working to get the children back, and
mentioned abuse. This caused a very vocal and explosive disagreement. B.D. called her child a
"liar", and rejected his feelings about the situation. (10/10/2018 N.T. pp. 6:.9). D.P. started
talking about past abuse and told his mother that if she ever hit him again, he would hit her back.
Mom's response was that ifhe raised a hand to her, she would "beat his ass", and told him he
was the reason she had lost her family. (9/9/2018 NT. p. 39). Ms. Edmunds had to intervene and
had the child removed. One of the areas that Ms. Edmunds had been working with 13.D. on was
appropriate ways to talk to children. It was another of the parenting techniques B.D. rejected, and
resulted in the June 19th blow-up. After this visit, and the revelation about recording therapy
sessions, B.D. was discontinued from Famiiy Based Mental Health. (10/10/2018 N. T. pp. 9, 33).
Shannon Spiegel of OCY was the family's caseworker beginning in December 2017.
Throughout the Agency's "involvement with B.D., the mother did not acknowledge any issue
about her ability to care for the children or the reasons the children were in OCY's care. (9/9/2018 NT pp. 39-40). This attitude was in spite of B.D. 's admissions in August, 2017 of her
abuse and inability to properly parent her children.
Although the plan through June, 2018 was to reunify the children with the father, who
had split from ·B.D., he admitted to a "co-dependent relationship with her, and that he could not
get away from the mother; that she was a"drug" to him. (9/912018 N. T. p. 40, 69). -Services were
offered to J.P. to deal with this co-dependency issue, services he stated he wanted. (10/1012018
pp. 35-36). OCY was going to increase unsupervised visits with the father one child at a time so
as not to overwhelm him. The first weekend visit on the June 8, 2018 with D.P. went well.
(9/9/2018 N.T. p. 34). There were a number of discussions with the father that there was to be no
unauthorized contact with the mother. (919/2018 N.1'. pp. 34-35, 37-38, 70-71). Another
weekend visit took place the following weekend, which happened to include Father's Day, At
first, it appeared that visit had no issues. However an allegation was received on June 25th that
the father had taken the child to the mother's house without permission, and that there was a plan
to reunite with the children, later with mom, and then move out of state. 36} (9/9/2018 NT. pp.
35-36). J.P. was confronted with this allegation. Initially, the father said B.D .. showed up at a
friend's picnic unexpectedly where the dad and. child were, and that he later left. Ms. Spiegel
talked to D.P. later about how the visits were going. Ms. Spiegel learned that J.P. had taken D.P.
over to the mother's residence, where the child spent the night, D.P. told Spiegel that he didn't
wantto go to his mother's on Father's Day, buthe didn't want to disappoint his dad. D.P. had
never been to the mother's residence, but was able to describe the layout, and said mom knew
they were coming because they didn't have to break into the house. (919/2018 N. T. pp. 35-37).
The father was confronted after Ms. Spiegel talked to D.P ., and he admitted he allowed the child
to have unsupervised, unauthorized contact with B.D. and let the child spend the night. Id.
·� ..) Unfortunately, after this visit, D.P. 's behaviors escalated in the foster home, and he ultimately
had to be removed. Id. D.P. also had to be hospitalized for mental health reasons a little later in
the summer, Jessica Edmunds stated there was a correlation between the visits with mom in June
and the escalation in D.P.'s behaviors. (9/9/2018 N.T. pp 26-27).
Shannon Spiegel concluded that despite the efforts ofO.C.Y., Family Based Mental
Health and other services, the ties between the mother and father were not being eliminated. J.P.
had not alleviated arty of his co-dependency with the mother, and failed to show art ability to care
for himself on his own , or care for his children. Despite the lengthy history of involvement with
child protective agencies in multiple jurisdictions, the dad did not acknowledge or realize Why
his children 'were in care. J.P. 's relationship with OCY was turbulent at times. He would thank
the Agency for intervening and helping him, then accuse it of kidnapping children and selling
them. J.P. did not consistently accept responsibility as to the reasons his children were
adjudicated dependent. (9/9/2018 N.T. pp 44, 64,-71-72). B.D. had been terminated from services
by Family Based Mental Health after it was determined the mother was not involved with it on a
therapeutic level, and she was recording sessions without permission, (9/9/2018 N. T. p. 65�66.).
Ms. Spiegel felt that continuing contact with the parents resulted iri continuing trauma for
the children. (9/9/2018 N. T. pp. 65-66): The two youngest children, J.P. and E.P., were in a
potential adoptive home. D.P. wanted to be adopted, but have some form of contact with his
father. R.P., 9 years old, had made statements he did not want to be adopted. (9/9/2018 N.T. pp.
41-43). Both D.P. and R.P. have indicated that they have concerns about their father's ability to
protect them from their mother. (9/9/2018 N.T. p 61). Spiegel had no confidence that J.P. could
stay away from 13.D. and believed the best interests of the children necessitated a change of goal
from reunification to adoption. (9/9/2018 N. 1'. p 43, 44-45). Julie Lafferty, a supervisor at OCY, was involved in the case from its inception in July,
2017, and Was Shannon Siegel's supervisor. (9/9/2018 N.T. pp70-71, 75). Ms. Lafferty
corroborated Spiegel's description of the father's attitude towards OCY. From J.P.'s allegations
of kidnapping; taking children for cash; and illegally removing them and stealing them every
day, to his contacting a state representative's office claiming his children were kidnapped, and
his wife wasn't being given a chance to work for reunification, Lafferty concluded the
circumstances of the children's placement had not been alleviated by the parents. (919/2018 NT.
pp. 71-74). Ms. Lafferty did riot believe J.:P. could protect the children from B.D., or that he
would choose them over mom, because he and the mother had no desire to be apart, or give each
other up. Neither parent has any idea how their behaviors affect their children, and the children
do not believe dad will protect them, and that he will get back together with the mother.
(9/9/2018 NT.pj)75-80).
J.P. admitted taking D.P. to see the mother; that he has discussed moving to North
Carolina with the children; and that lie still feels the children were prematurely removed.
(10/10/2018 N. T. pp. 45, 52, 56). The father agreed that he stated his relationship with B.D. was
like an addict relapsing, and that he is co-dependent with her. (1 Oil 0/2018 N. T. pp 65-66). J.P
acknowledged the children suffered from past abuse and trauma and that there was not a healthy
relationship between the mother and children, (10110/2018 N.T. pp 76-78).
The father denied making belligerent statements to Shannon Spiegel or Agency staff. He
also denied posting items on Facebook about his animosity towards government officials or CPS
workers. (10/10/2018 N. t. pp. 82-83). J.P -, admitted he goes by the name J.b. on his Facebook
account. (10/1012'018 N. T. p. 85). During the lunch recess, J.P. deleted his Facebook account.
(]Oil 0/2018 NT. p. 92). Before the account was deleted, copies of posts from September 7, 14
'7 and 23, 2018 were made and marked as exhibits. The posts from September 7, 2018 were
Exhibits 1 and 2; September 14, 2018 was Exhibit 3� and September 23, 2018 marked Exhibit 4 ..
(10/10/2018 N.t; pp.91-94). Exhibit 1 reads iiWOW .. what a weird hearing .. Courtroom was shut
down for an hour." Exhibit 2 reads. "Wife shut whole dam court hearing down for over an
hour. •. over her phone .• .lol". Exhibit 3: "Ah hell.. Let's just get this war started •. hit all
SW(Social Workers) at their home like they did us. Post their homes and neighborhood.". Exhibit 4: "Halloween .. time to put on a mask arid HIT EM HARD ... fuk CPS social workers.".
J.P. admitted he posted the exhibits, but as to Exhibits 3 & 4, only that he shared the posts.
Exhibits 1 and 2 were admitted; 3 and 4 were admitted over objection, but it was noted that
objection went to the weight of evidence, and the father's claim he only shared those two posts
would be considered by the court.(10/10/2018 N.1'; pp. 92-95).
Counsel for J.P. issued subpoenas tohave the minor children D.P. and.R.P. attend the
PermanencyReview Hearing on September 9, 2018. OCY filed a Motion to Quash the
Subpoenas. Afte; a hearing prior to the start of the Review Hearing, the Motion to Quash was
Granted. (9/9/2018 N.T pp. 3�32). Counsel for the father filed a Motion for Special Relief on
October 19, 2018. The relief requested-was forthereopening of the change of goal hearing, and
appointment of separate legal counsel for the three oldest children to represent their legal
interests at that hearing. The relief requested was Denied on October 26, 2018.
The Agency filed a Motion to Change Permanency Goal on July 5, 2018, indicating its
desire to change the goal ofD.P., R.P., J.P. arid E.P.'s permanent placement from Reunification
concurrent with Adoption to Adoption. This Court', after reviewing the testimony and evidence
presented at the Permanency Review Hearings on September 9 and Octberl 0, 2018 found that
the Agency met their burden by clear and convincing evidence and that the permanency goal should be changed to Adoption. Services were terminated. An order was entered, on October 19,
2018, directing the Agency to file an Involuntary Termination of Parental Rights Petition.
lSSUES.PRESENTED Appellant raises the following issues:
1. THE TltIAL COURT AB{JSED.tts t)ISCRETION ANO/OR COMMIITEb AN ERROR OF LAW BY FINDING MINIMAL COMPLiANCE WITH THif COURT O}D?ERED tREATMENT?tAN iN_I!S ORDER OF OCTOB..ER,10, 2018,
�g�;nt�tr�6t��it�i,&,ii��t<; WHEN THE REASONS FOR.TIIE}J'.>1UDICAtrON OF J)EPENDENCY: AND -BED cAREtAJ(ING ROLE, FAiLURE ro PROTECT THE CHlLDREN FROM ABUSE, FAittJRE TO SEEK SERVICESF6R HIS MENTAL HEALTH; AND LACK OFFOLLOW THRdUOH wrru SBRViCES HAb BEEM - AtLEVIATED. - -
2. THE TRIAL COURT ABUSEDitS DlSCRETION AND/OR COMMiTrEDAN ERROR OF LAW/FA.Ct WHEN It QTJASIIBD THE SUBPOENAS ISStTED BY TSE FATHER to HAVE THi{MiNOR.OLD�R CHILPREN, nr. AND R.P_., AGEb- i2 ANb 9, APPEAR AND TESTIFY IN CAMERA AT"tHE CHANGE OF d6ALHEARING. . - .
3. THE tR1AL count ABUSED ITS DISCRETION AND/OR C6MMltTED AN ERROR OF LAw BY FAILING ro APPOlNT AN" ATTORNEY FOR THE MINOR "CHILREN, D.P. AND R.I>.·tN Ti:$ CHANGE OF" GOAL HEARING.
4. THE TRlAL COURT ABUSEb ITS DISCRETION AND/OR COMMITTEDAN ER.ROE OF LAw BY DENYING THE FAtHER'S MOTiON POR SPECIAL RBLieF REQUESTING THA'J; 11-ffi COURT RE-OPEN THE RECpR.b TO APPOINT COUNSEL-FOR TH$ CHILPREN AND HA VE COUNSEL ADVISE - THE- COURT OF THE CHILDiIBN'S WlSHES REGARDING ii-ffi CHANGE OF GOAL
5. THE TRIAL COURT ABUSED ITS DISCRETION _AND/OR COM1vIITTED AN ERROR OF LAW BY F AILiNG TO GIVE UNCONTROVERTED tESTI;t\.fONY tHAT THERE WAS A BOND BETWEEN sous OF THE CHILDREN AND THE FATHER.
6. THE TRIAL COURT ABUSED ITS DISCRETION AND I OR COMMITTED AN ERROR OF LAW BY FAILING TO ACKNOWLEDGE THAT THE CHILDREN HAD BEEN IN PLACEMENT FOR LESS THAN ONE YEAR BEFORE THE o CHANGE OF GOAL PETITION WAS FILED, WHEREBY NOi GIVING FATHER SUFFICIENT TIME TO RECTIFY THE CONDITIONS FOR REMOVAL OF CHILDREN ..
7. THE TRIAL COURT.ABUSEDliS orscasno» AND I OR COMMlITBDAN ERRO'� OF LAW WHEN It fAILE.b ro RECOGNIZE THAT Ar THE-MAY .. 23, ·201s REVIEW HEARING, REUNIFICATiON WITH FATHER WAS THE GOAL BY END OF sU.MK1E'.R,:201_8, AND FIVE: (5) WEEKS LATEit°FILEO A MOTION FOR CHANGE OF GOAL to AbOPiION; A DECISlON THA! WAS NOT SUPPORTED BY tfIEEVIDENCE.
8. THE TRIAL COURTABUSEO rrs OISCRETION ANO I OR COMMITTED AN ERROR 6F LAW BY CHANdtN
9. iHE TRIAL COURT ABUSED fTS DISCRETION AND I OR COMMIITEb AN ERROR OF LAW BY FAILING to CONSIDER tHE BEST I'NTERSTS OF THE CHILDREN AND WHETHER THBI'.R BEST INTERSTS WOVLb;BE SERVED BY SEVERlNG THE PARENT I cnm RELATIONSI-llP.
ST ANl>ARD OF REVIEW
When reviewing an appeal from a decree changing a permanency goal, an appellate court
accepts the findings of fact and the credibility determinations of the juvenile court if they are
supported by the record. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). An abuse of discretion
standard is used by the appellate court.
An abuse of discretion is not found if the lower judgement was reasonable; the court
applied the law, and the court's action was hot a result of partiality, prejudice, bias, or ill will.
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the lower ,n :. ..,. court's decision, the decree must stand. In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007). In a
change of goal proceeding, the lower court must focus on the child's best interests, not the
interests of the parents. Id
The Agency has the burden of proving the change in goal would be in the child's best
interests. Ill re M.B., 674 A.2d 702, 704 (Pa. Super. 1996).
DlSCUSSlON
but of the father's nine issues raised in this appeal, Issues 1, 5, 6, 7, and 8 are all
alleging, in one form or another, that this court erred or abused its discretion in granting the
change of goal from reunification to adoption. Those issues claim the reasons for adjudication of
the children had been alleviated (I); that there was a bond between some of the children and the
father (5); the father did not have sufficient time to rectify the conditions that led to the removal
of the children (6); that changing the goal to adoption 5 weeks after reunification with the father
was ordered as the treatment goal was unsupportable (7); and one indiscretion of the father
allowing contactwith the mother did not justify the change in goal to adoption (8).
The history of this family t�oughout the years demonstrated the inability of the father to
protect and parent his children. While living in North Carolina, child protective services got
involved with the family due to allegations of abuse. Although those allegations Were eventually
deemed unfounded, services were opened.Little or no information is available regarding the
cooperation of the family with North Carolina authorities. One need only look at what trartspired
once the family moves to Erie to conclude intervention was not particularly successful in North
Carolina. J.P. files a Protection From Abuse Act Petition on behalf of his children alleging abuse
by the mother, B.D. OCY gets involved and initiates services such as Family Based Mental
Health with the family. The abuse allegations were ultimately unfounded, but despite a number of agencies' involvement, conditions in the home deteriorate to the extent that the children have
to be removed. Both parents agree to the alleged facts that the children were living in unhealthy
and unsafe conditions; the mother had abused them; the father did not protect the children while
witnessing abuse at the hands of the mother; the parents were unwilling to seek mental health
treatment; the patents did n:ot provide a safe environment for the children, and these issues
extended back to the family's time in North Carolina.
The parents had joint counselling with Jessica Edmunds. She found the se'Ssfons."toiie'
with the constant fighting and disagreements between the parents. Once the parents ·splitj each
saw her individually. J.P. Would make progress, but as Edmunds testified, he would take two
steps forward, then two back. Something would trigger his anger with OCY, and the father
would retreat to negativity. The mother rejected all suggestions regarding parenting techniques
and how to relate to her children. Her rejection of proper parenting culminated in the "explosive"
visit with her oldest child,D.P. on June 19, 2018, where she called him a "liar" and blamed him
for the separation of the family. LP; despite his apparent willingness to properly parent his
children, consciously allowed D.P. to have an. unauthorized overnight visit withB.D; The mother
had shown no inclination to change her behaviors to provide safe and proper _parenting for her
children. Thefather had received services, training and therapy since June, 2017; had filed a PFA
against the mother for abuse of her children: admitted witnessing the abuse; and admitted that the
relationship between the children and their mother was troublesome, With all this acknowledged
information about the mother, J.P. still permitted unsupervised, unauthorized visitation.
"Actions speak louder than words" is a better barometer of the father's alleviation of the
circumstances which led to the children's removal and adjudication of dependency. J.P., While
12 saying he appreciated OCY for providing services to help him to reunite with his family, would
tum around and complain OCY kidnaps children, sells children, and did not give his wife a
chance to rehabilitate herself. J.P. admittedly posted a number of items on Facebook duringthe
period while the court was considering the change of goal. the first two posts from September 7,
2018 take delight in the fact that his wife disrupted the court hearing for over an hour, The
September 14, 20i8 post, arid the September 23,2018 post although only "shared" with
Facebook friends, reveal the acceptance ofsinister attitudes and actions which threaten the safety
of those charged with protecting the most vulnerable in our society. A final deed by J.P. sheds
probably the most light on his attitude towards authority. During the lunch recess at the October
10, 2018.Review Hearing, afterthe Facebook.posts had come to light, J.P. deleted his Facebook
account, which he had under the name of 1.D. The deviousness underscores J.P.'s attempt to
convince the court he was something he really wasn't - a parent ready to parent and protect his
children. The admitted addictive relationship between himself and 13.D. is the truth of this matter.
He cannot break away from his wife, and will choose her over his children, even if this·
compromises their safety.
Abuse of discretion by this court has been alleged.
Where the allegation is abuse of discretion, the trial court not the appellate court, is charged with the responsibilities of evaluating credibility of the witness arid 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. When.the trial court's findings are supported by or competent evidence record, we will affirm, "even if the record could also support the opposite results."
In the Matter ofN.C., 909 A.2d 818, 822"'23 (Pa. Super. 2006). See also In the Interest of C.J.11
782 A.2d 568, 569 (Pa. Super. 2001).
J.P.'s actions throughout the history of this case reflect a disregard for the health and
safety of his children. While outwardly seeming to cooperate, his true convictions were exposed
t ,., !_ .:' when confronted. This court has no doubt that if given the chance, J.P.' s plan was to reunite
with his children, then his wife, and move to North Carolina. J.P.'s credibility was non-existent
when he tried to convince this court he would protect his children.
The circumstances which caused the removal of J.f>.'s children have not and will not be
alleviated. Any evidence of a bond between the father and some of his children is eliminated
when compared to the bond between the father and mother, especially when it comes to the
children's safety. Although there was less than a year from placement to the Motion to Change
Goal, the father demonstrated through his actions that there would not be a rectification of the
conditions which led to the children's removal. Any further efforts to reunite the father with his
children "would be futile and contrary to the child's best interests", In re J.D.H., 171 A.3d 903,
905, 909-910 (Pa. Super 2017). The five week period between the ordering to begin
reunification to the change of goal to adoption was of no consequence as J.P. demonstrated he
was not going to make his children's safety a-priority in Iris life. The June unauthorized visit of
D.P. with the mother permitted by the father was not a single indiscretion, but rather the
culmination of J.P.' s complete and utter failure to be a parent.
The third and fourth issues raised by the father argue the court erred and or abused its
discretion in failing to appoint separate legal counsel to advise the court of the children's wishes
regarding the change of goal. Counsel for the father had filed the Motion for Special Relief
requesting the record be reopened and counsel be appointed for the children. The Motion was
based on the recent Superior Court decision in In re J'K.M., 191 A.3d 907 (Pa. Super 2018).
The case extended the appointment of separate counsel to represent a child's legal interests,
where there was a conflict between the opinions of the child and the Guardian Ad Litem (GAL)
of the child, to dependency proceedings. J'K.M. involved a 16 year old child who testified at the Review Hearing that she wished to continue living with the mother. The GAUs position was that
removal from home was in the best interests of the child due to the mother neglecting the child's
medical needs. lit re J'K.M., 191 A.3d at 914-915. The Superior Court detailed the fact that the
child was 16 years old, and that competency is presumed at 14. The Court relied heavily on the
child's testimony and reasons for her position, namely that she had been sexually assaulted in
foster care and felt the system had failed and endangered her. Id. As a general rule, the Superior
Court determined that "pursuant to LB.M., C.P., Rule 1154 and its comment, and the specific
suspension ·of Section 6311 (b)(9), a divergence between the child's wishes under 42Pa. C.E{A. §
631 l(b)(7), maVhe considered a conflict of interest for the GAL." Id. (emphasis supplied).
Specifically, the Superior Court noted that "despite child's desire to remain in Mother's care and
the ordeals child stated previously had occurred in foster care, the GAL argued agatnst the child ' remaining at home." Id. The Court determined that "this divergence of opinions betweeh the
child's legal interests and best interests presents a conflict as contemplated in 1,.B.M. and Pa.
R.J.C.P. 11.51 and 1154." Id.
In this case, the Guardian Ad Litem for the children, Alison Scarpitti, Esq., 'submitted art
extensive report of her meetings with the two oldest children, D.P. and R.P., which report was
admitted without objection, as an Exhibit. (9/9/2018 N. T. p. 30), see also (9/9/2018 NT. pp. 30-
32.). Attorney Scarpitti detailed that the oldest child, D.P, 12 years old, wished to be adopted, but
expressed a wish for contact with the fathei.·R.P., aged 9, expressed an objection to adoption; he
was not ready to give up hope that J.P. would be able to protect him from the mother. R.P. was
unable to fully express any specific reason why he did not want to be adopted, but also
expressed he did not believe that the father could keep him safe, a sentiment expressed by D.P.
as well. The GAL expressed her opinion that changing the goal to adoption, and thus moving towards terminating parental rights would be in the 'best interest of the children. However, she
additionally stated in the report, that forcing a child to be adopted would not be in the child's
best interests.
The present case is readily distinguishable from J'K.M. A 9 year old child, 'not a 16 year
old, has expressed a desire not to be adopted. R.J?. has not reached the age of consent, 14 years
old, which age the Superior Court noted in j'K.M. The child's opinion was fully brought to the
court's attention bythe GAL who met with him and discussed the issues with R.P. The ruling in
J'K.M. was that if a conflict between the child arid the GAL existed, the court may appoint
counsel to represent the child's legal interests. Attorney Scarpitti expressed her opinion that a
child should not be forced to be adopted, in line with R.P.'s position - no conflict. Orte thing was
_clear -R.P. feared his mother and did not want contact with her. He and nr. questioned their
father's ability to protect them fromtheir mother. J.P. will choose his wife over the children
every time. Once that fact becomes clear to the children, any equivocation to being adopted will
cease. However, this case isn't at that stage yet, only that ocv can pursue termination of
parental rights. Based upon the evidence, this court did not en- or abuse its discretion in not
appointing separate counsel to represent the legal interests of D.P. and R.P., nor in denying the
father's Motion for Special Relief.
Issue number 2 in the father's list oflssues Presented on Appeal, maintains the court
erred and / or abused its discretion in granting the Motion to Quash the Subpoenas the father had
issued for the two oldest children (D.P. and R.P .) to attend and testify in camera at the Review
Hearing. Counsel for OCY filed a Motion to Quash the Subpoenas and the court conducted a
hearing on the Motion prior to the September 9, 2018 Review Hearing. Rule 1128 of the Pennsylvania Rules of Juvenile Court Procedure establishes the
procedure for the appearance of parties at a dependency heating.
A. General R�le. All parties shall be present at any proceeding unless the exceptions 'Of. paragraph (B) apply.
B. Etceptfons.
(2). Exclusion from proceedings. A party may be excluded from a proceeding only for good cause shown ....
The Agency presented the testimony of the family's caseworker, Shannon Spiegel. Ms.
Spiegel described how D.P. 's behaviors in the foster home worsened after the unauthorized
contact with the mother on Father's Day. She stated that the children were told of the goal
change to be requested· at the hearing, but neither indicated they wanted to come to the hearing.
Both children would get very upset when talking about adoption, and whether they wanted
contact with their patents. D.P. would act out, and R.P. would become more withdrawn. Even
though the children would not be in the courtroom, they would know why they were there and
would become stressed. (9/9/2018 N:T. pp 5-6)1,12,14-15).
Jessica Edmunds, the family therapist from Family Based Mental Health confirmed the
problems with D.P. after the unauthorized June visit with mom. D.P.'s behaviors increased, and
after finding out about the visit, Edmunds concluded there was a correlation between the visit
and the escalation in b.P. 's behaviors. The behavior continued to worsen so that D.P. was
removed from his foster home and hospitalized for mental health issues. (9/9/2018 N.T. pp:24-
27).
Alison Scarpitti, Esq., the children's Guardian Ad Litem, met with D.P. and R..P., and
filed a report with the court that was admitted as an exhibit. (9/912018 N T.p. 30). As discussed
earlier in this opinion, both D.P. and R.P. 's opinions about adoption and contact with their parents were presented to the court. Attorney Scarpitti advocated that the children not be forced
to undergo the stress trau:ma of having to come to court and answer questions. (919120J 8 N. T pp
30-32).
This court is clearly convinced that good cause was shown to quash the subpoenas for the
children's appearance and testimony. The children's positions were competently and . �"rf; professionally presented by Attorney Scarpitti who personally rnet with th7' The court
considered those positions in determining the outcome of the Review Hearing. No error of law cir
abuse of discretion occurred in granting the· Motion to Quash.
The final issue raised by the father on appeal is that the court did not consider the best
interests of the children in permitting the change of goal to adoption. This whole matter has been·
about the best interests of D.P., R.P., J.P. and E.P. Not permitting these children to have to face
the continued trauma and instability they have been through in their short lives is theparamount
concern of this court. The evidence has clearly shown that J.P. is a coil artist when it comes to
demonstrating he can care for and protect his children. The father erects a facade that he is
cooperating, when all the time he is scheming to reunite with his wife and move out of the
jurisdiction with his children. J.P.' s self-confessed addiction to his wife trumps any minimal
progress he may have made to regain his" children's custody. the father has no inclination to
change anything about his parenting or behavior, To place these children back in his care would doo:m them to a life of trauma, stress and instability. The best interests of these four children lie
apart from their patents.
CONCLUSlON
Appellant has continuously demonstrated she cannot or will not place his children's
needs above his own. He refuses to accept responsibility for his actions. The skills and judgment necessary to provide for the emotional well-being of his children are non-existent. The total
history ofthis case reveals that the father is unable and I or unwilling to change to give priority
to the heeds for safety and· adequate care for his children. He was given numerous opportunities
to demonstrate he would work to be able to provide the necessary basic heeds for his children
and consistently failed to do so. A goal change to Adoption is therefore appropriate, despite any
degree of minimal compliance with the permanency plan. It is respectfully requested the
Superior Court affirm this Court's Order changing the goal of the dependency proceeding to
Adoption. v l
I A JU. Dated this �day of January, 2019.
cc: Attorney Anthony Vendetti Attorney Elizabeth Brew Walbridge Erie County Office of Children and Youth 1001 State Street, Suite 1400 · 154 West '9th Street · Erie, PA. 16501 Erie; PA 16501
Attorney Emily Merski Attorney Alison Scarpitti 3 820 Liberty Street 150 East gth Street, First Floor Erie, PA i 6509 Erie, PA 16501
i9