In the Interest of: S.K.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2015
• Docket: 2576 EDA 2014
• Status: Unpublished

Opinion

J-S21034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: S.K., MOTHER

No. 2576 EDA 2014

Appeal from the Order Entered July 23, 2014 in the Court of Common Pleas of Delaware County Civil Division at No.: CP-23-DP-0000012-2013

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MAY 08, 2015

S.K. (Mother) appeals from the order of the Court of Common Pleas of

Delaware County, entered July 23, 2014, that changed the goal of her

daughter, S.K. (Child), born in September of 2006, from reunification to

adoption. We affirm.

The record supports the following recitation of the facts of this case.

On January 4, 2013, Children and Youth Services of Delaware County (CYS)

received a referral from East Lansdowne Emergency Medical Transport,

stating that a six-year old child was without proper supervision because

Mother had left the child home alone. This was allegedly not the first time.

Mother’s landlord saw Child come home from school and later found her

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S21034-15

alone on a mattress on the floor with an electric space heater. The landlord

took Child home with her when Mother could not be located. The police

went to Mother’s residence at 6:45 P.M., and when Mother arrived, she

explained that she took a short day trip to New York City while Child was at

school. On February 4, 2013, the trial court found that Child lacked proper

parental care and control, adjudicated her dependent, and placed her in

foster care.

Over the course of the next eighteen months, CYS provided services to

Mother that included individual and family counseling; transportation; family

visitation; referral to the Transitional Housing Program; referral to Parents

and Children Together; referral to the Elwyn Clinical Visitation Program;

collaboration with Northwestern Human Services; collaboration with the Linh

Center regarding family therapy; and psychiatric and psychological

evaluations.1

The trial court held hearings on the case on the following dates with

the results indicated: January 29, 2013, adjudicated dependent, legal and

physical custody to CYS, Child to foster care; June 18, 2013, permanency

review, legal and physical custody remained with CYS; August 27, 2013,

permanency review, legal and physical custody remained with CYS;

1 Evaluation showed that Mother has suffered extensive and ongoing untreated mental illness since 2004. (See Trial Court Adjudication, 12/12/14, at unnumbered page 2 ¶ 15).

-2- J-S21034-15

November 19, 2013, permanency review, legal and physical custody

remained with CYS; March 13, 2014, permanency review, legal and physical

custody remained with CYS; June 11, 2014, goal change hearing with CYS

seeking goal change from reunification to adoption, legal and physical

custody remained with CYS and goal status not altered; July 16, 2014, goal

change hearing, goal changed from reunification to adoption.

Mother timely filed her notice of appeal and statement of errors

complained of on appeal on August 22, 2014. See Pa.R.A.P. 1925(a)(2)(i).

On December 12, 2014, the trial court entered an Adjudication containing

detailed findings of fact and conclusions of law in support of its decision to

change Child’s goal from reunification to adoption. On the same date,

December 12, 2014, the trial court entered an opinion in which it

incorporated and referred this Court to its Adjudication. See Pa.R.A.P.

1925(a).

Mother presents the following questions for our review:

1. Did the [t]rial [c]ourt abuse its discretion in converting a permanency review hearing to a goal change hearing without giving prior notice to [Mother], thereby depriving [Mother] [of] the opportunity to present the testimony of her expert witness to rebut the testimony and expert report of the [CYS] provided psychiatrist?

2. Did the trial court abuse its discretion by not considering the fact that [Mother] did not receive the court summary or proposed court order for this hearing until midway through the hearing itself?

(Mother’s Brief, at 10).

-3- J-S21034-15

Our Supreme Court set forth our standard of review for dependency

cases as follows.

. . . [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) (citation omitted).

To adjudicate a child dependent, a trial court must determine that the

child:

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

42 Pa.C.S.A. § 6302(1) (defining “Dependent child”).

A dependency hearing is a two-stage process. The first stage requires

the trial court to hear evidence on the dependency petition and determine

whether the child is dependent pursuant to the standards set forth in section

6302. See 42 Pa.C.S.A. § 6341(a). If it finds clear and convincing evidence

that the child is dependent, the court may move to the second stage, an

adjudicatory hearing, where it must make an appropriate disposition based

on an inquiry into the best interests of the child. See 42 Pa.C.S.A. §

6341(c); In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007).

-4- J-S21034-15

In accordance with the overarching purpose of the Juvenile Act to

preserve family unity wherever possible, see 42 Pa.C.S.A. § 6301(b)(1), a

child will only be declared dependent when he or she is presently without

proper parental care or control, and when such care and control are not

immediately available. See In the Interest of R.T., 592 A.2d 55, 57 (Pa.

Super. 1991). This Court has defined “proper parental care” as “that care

which (1) is geared to the particularized needs of the child and (2) at a

minimum, is likely to prevent serious injury to the child.” In the Matter of

C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997) (citation omitted).

In regard to when a child should be removed from parental custody,

we have stated:

The law is clear that a child should be removed from her parent’s custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child’s well-being. In addition, this [C]ourt had held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.

In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980) (citations

omitted). In addition, we have stated, “it is not for this [C]ourt, but for the

trial court as factfinder, to determine whether [a child’s] removal from her

family was clearly necessary.” In the Interest of S.S., 651 A.2d 174, 177

(Pa. Super. 1994) (footnote omitted).

Furthermore,

-5- J-S21034-15

Placement of and custody issues pertaining to dependent children are controlled by the Juvenile Act, which was amended in 1998 to conform to the federal Adoption and Safe Families Act (“ASFA”). The policy underlying these statutes is to prevent children from languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. Consistent with this underlying policy, the 1998 amendments to the Juvenile Act, as required by the ASFA, place the focus of dependency proceedings, including change of goal proceedings, on the child. Safety, permanency, and well-being of the child must take precedence over all other considerations, including the rights of the parents.

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

citations and footnotes omitted).

The matters to be determined at permanency hearings, including the

determination as to a change of permanency goal to adoption, are set forth

at section 6351(f) and (f.1) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f) and

(f.1). Section 6351(g) directs the trial court to enter an order, on the basis

of its determination made under subsection (f.1), that directs the

continuation, modification, or termination of placement or other disposition

which is best suited to the safety, protection and physical, mental and moral

welfare of the child. See 42 Pa.C.S.A. § 6351(g). 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 N.C.,

supra at 824 (citation omitted).

Here, Mother first argues that the trial court abused its discretion by

“converting [the July 16, 2014] permanency review hearing to a goal change

hearing” without notice to her, and that this abuse prevented her from

-6- J-S21034-15

presenting the testimony of her expert witness to rebut CYS’s expert.

(Mother’s Brief, at 10). This issue is waived.

Specifically, our review of the record reveals that Mother’s counsel

addressed the issue of rebuttal testimony as follows:

Your Honor, I have—as I said, we have—[Mother] has met with other psychological and psychiatric professionals that could not be here today, and there are financial constraints on having them come in and testify on her behalf. . . .

(N.T. Hearing, 7/16/14, at 53). This is not an objection to lack of notice; it

is an admission that counsel had potential witnesses that he did not call to

testify. Further, during the hearing, counsel for CYS and caseworker Noel

Torres characterized the hearing as a goal change hearing, and Torres stated

the agency’s intention to continue to move forward with a goal change to

adoption. (See id. at 7-8). Mother’s counsel did not object or raise the

issue of lack of notice. (See id.). Thus, Mother has waived her first issue

by raising it for the first time on appeal. See Pa.R.A.P. 302(a).

Moreover, Mother’s claim would not merit relief. A permanency review

hearing is not a separate hearing from a goal change hearing. At a

permanency review hearing, the trial court is tasked with, among other

things, determining the necessity, appropriateness, and feasibility of the

current goal for a child. 42 Pa.C.S.A. § 6351(f) provides, in pertinent part:

(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.

-7- J-S21034-15

(2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child.

(3) The extent of progress made toward alleviating the circumstances which necessitated the original placement.

(4) The appropriateness and feasibility of the current placement goal for the child.

42 Pa.C.S.A. § 6351(f)(1)-(4).

Section 6351(f.1)(2) provides that, based on the determinations under

subsection (f) and all relevant evidence presented at the hearing, the trial

court shall determine “[i]f and when the child will be placed for

adoption, and the county agency will file for termination of parental rights

in cases where return to the child’s parent . . . is not best suited to the

safety, protection and physical, mental and moral welfare of the child.” 42

Pa.C.S.A. § 6351(f.1)(2) (emphasis added).

In the instant case, at the time of the hearing on July 16, 2014, Child

had been in placement for seventeen months and the trial court had before

it the record made at several prior hearings. Counsel should have been

aware that the question of Child’s goal change to adoption was ripe for

consideration, especially because counsel acknowledges that the trial court

considered the issue of Child’s goal at the prior hearing held on June 11,

2014. (See Mother’s Brief, at 12; see also Trial Court Adjudication,

12/12/14, at unnumbered page 4 ¶ 29). Therefore, Mother’s first claim of

error would not merit relief.

-8- J-S21034-15

In her second issue, Mother contends that the trial court erred by

“granting a goal change when [CYS] never provided a court summary to

[her] . . . in advance of [the] July 16, 2014 hearing,” thereby depriving her

of notice “that there would be witnesses present other than CYS

caseworkers[.]” (Mother’s Brief, at 17) (some capitalization omitted). 2 This

issue is also waived.

Specifically, the record reflects that, during the July 16, 2014 hearing,

counsel for CYS asked Mother’s counsel if he had a copy of the summary,

and he replied that he did not. (See N.T Hearing, 7/16/14, at 11-12).

Counsel for CYS then provided Mother’s counsel with the summary, stating:

I’m just indicating attached to the summary is the report of Dr. Mechanick so if counsel wants to delve into the diagnosis of Dr. Mechanick, I want to give him the opportunity of looking at the report and he may call Dr. Mechanick as on cross.

(Id. at 12). Mother’s counsel then stated, “If you’d permit me one

minute[,]” and the parties went off the record. (Id.) When they returned,

Mother’s counsel examined Dr. Mechanick and, at the conclusion of his

testimony, CYS rested its case. (See id. at 13, 24). Mother’s counsel then

called Mother to the stand. He did not make any objection to receiving the

summary during the hearing. (See id. at 11-13, 24-25). Therefore, Mother

2 The notes of testimony from the hearing show that the only witnesses who testified were CYS caseworker Noel Torres, CYS casework supervisor Kyesha Durrant, psychiatrist Dr. Stephen Mechanick, and Mother. (See N.T. Hearing, 7/16/14, at 2-3, 25).

-9- J-S21034-15

has waived this issue by raising it for the first time on appeal. See Pa.R.A.P.

302(a). Accordingly, for the reasons stated, we affirm the trial court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2015

- 10 -