noting that “[o]nce a child is adjudicated dependent . . . the issues of custody and continuation of foster care are determined by the child’s best interests”
How later courts described this case
- noting that “[o]nce a child is adjudicated dependent . . . the issues of custody and continuation of foster care are determined by the child’s best interests”
- holding appellate court required to accept trial court’s findings of fact and credibility determinations when they are supported by the record
- holding record substantiated trial court’s factual findings
- stating that this Court will not upset the juvenile court’s credibility determinations
Written by the judges who cited it.
The opinion
J-S42045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: W.R.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.B., MOTHER
No. 146 WDA 2016
Appeal from the Order January 5, 2016
in the Court of Common Pleas of Blair County Civil Division
at No(s): CP-7-DP-64-2013
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 09, 2016
S.B. (“Mother”) appeals from the permanency review order dated and
entered January 5, 2016, changing the permanency goal to adoption for her
dependent, female child, W.R.B., (“Child”) (born in February of 2012), and
also changing the placement of Child by removing Child from the home of
her legal custodian, D.B., who is Child’s maternal great-grandmother
(“MGG”). The trial court order also vested legal and physical custody to Blair
County Children Youth and Families (“BCCYF”).1 We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows.
On April 21, 2015, Blair County Children Youth &
Families (hereinafter “BCCYF”) filed a Dependency Petition,
alleging that the subject child, W.R.B., was a dependent
child who was without proper care or control, under the
*
Former Justice specially assigned to the Superior Court.
1
Child’s father, T.S. (“Father”), is not a party to this appeal, and has not
filed a separate appeal of his own.
J-S42045-16
Juvenile Act, 42 Pa.C.S. §6302(1). In its Dependency
Petition, BCCYF identified S.B. as the Mother, T.S. as the
Father, and D.B., as the Maternal Great-Grandmother of
the subject child. At the time of the filing of the
Dependency Petition, the Mother and child were residing
with D.B. [Dependency Petition, p. 5, No. 1.c.i.].
As set forth in the Allegations of Dependency,1 BCCYF
has a history with this family dating back to June 2012.
The Agency received multiple reports that the Mother was
involved in drug use; that the Mother had entered mental
health treatment on October 16, 2012 due to superficially
cutting herself approximately six hundred (600) hundred
times; the Mother was arrested and placed at the Blair
County Prison in late 2012 with the child being placed with
the Maternal Great-Grandmother; and that upon the
Mother’s release from prison on February 25, 2013, a
safety plan was put into effect stating that all contact
between the Mother and child would be supervised by the
Maternal Great-Grandmother, and that the Mother would
not remove the child from D.B.’s residence. [D.P., pp. 5-6,
No. 2].
During 2013, BCCYF received additional reports from a
service provider, New Steps, who was providing in-home
services, as to cluttered home conditions and the volatile
relationship between S.B. and D.B. Further, it was
reported by both New Steps and Pyramid Healthcare that
the Mother was not attending her scheduled appointments.
On June 20, 2013, the Mother tested positive for
marijuana and amphetamines and was detained by her
probation officer until December 2014.[2] [D.P., p. 6, No. 2.
h.-j.].
The Mother also has a criminal history dating back to
July 6, 2012, when she pled guilty to Simple Assault (M-2)
for which she received probation. Due to numerous
probation violations. she was detained in prison on at least
four (4) separate occasions. On August 26, 2013, she
2
The date is an apparent clerical error, and should be December 2013.
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J-S42045-16
pled guilty to Retail Theft (M2) for which she received
probation. [D.P., p. 6, No. 3.a.].
The Dependency Petition also sets forth the Father’s
criminal history dating back to February 2, 2011 when he
pled guilty to Disorderly Conduct as a summary offense.
In 2012, the Father pled guilty to Purchasing Alcoholic
Beverage by Minor, Simple Assault and Recklessly
Endangering Another Person. In 2013, he pled guilty to
Criminal Mischief, Harassment and Retail Theft. In 2014,
he pled guilty to Public Drunkenness and Theft by Unlawful
Taking. On March 26, 2015, he pled guilty to
Use/Possession of Drug Paraphernalia. [D.P., p. 6, No.
3.b.].
Relative to the case history giving rise to the most
recent Dependency Petition that was filed on April 21,
2015, BCCYF received a report that the Mother was taking
her child with her to [a] friend’s residence while she
smoke[d] marijuana. Following the report, a caseworker
conducted a home visit on March 3, 2015[3] at D.B.’s
residence[,] at which time the Mother admitted to smoking
marijuana and that she could not understand “what the big
deal is”. When asked to take a drug screen, the Mother
reported that she would also test positive for street
Subutex. The Mother indicated that she takes Subutex to
help her stay “clean” from pain pills and that she can get
street Subutex for free. The drug screen was positive for
Opiates, THC and Benzodiazepines. The Mother denied
having a drug problem. A safety plan was put into effect
on March 3, 2015 providing that D.B. would supervise all
contact between the Mother and child. [D.P., pp. 6-7. No.
4.a.].
On March 16, 2015, during an office visit with the
family, the Mother was offered an opportunity to
participate in the Blair County Family Drug Court Program,
which she refused. D.B. confirmed to the caseworker that
the Mother was taking the child places and staying the
3
The date should be March 13, 2015. See Dependency Adjudication Pet., p.
1; N.T., 6/29/15, at 2-3.
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J-S42045-16
night. Further, BCCYF alleged that the Father had been
minimally involved with the child. (D.P., p. 7, No. 4.b.c.).
On May 13, 2015, BCCYF filed both an Application for
Emergency Protective Custody and a Shelter Care
Application. In each Application, BCCYF alleged that the
subject child, W.R.B., was without proper care or control
pursuant to The Juvenile Act, 42 Pa.C.S. §6302(1). . . .
The Mother requested that the matter be waived to court.
Since the voluntary safety plan was due to expire on May
13, 2015, and the Custody Order in effect did not prohibit
unsupervised contact between the Mother and child, BCCYF
filed its Applications. The Agency also reported that the
Mother continued to test positive for illegal substances
after the filing the Dependency Petition, and that the
Mother continued to deny her drug use. Furthermore, the
Mother discontinued her mental health treatment.
This Court granted emergency protective custody on
May 13, 2015 to the Maternal Great-Grandmother, D.B.,
with the stipulation that the parents only have supervised
contact with the child until the date of the
Adjudicatory/Dispositional Hearing.
On May 15, 2015, a Shelter Care Hearing was held[,]
after which an Order was entered finding that sufficient
evidence was presented to prove that return of the child to
the home of either parent was not in the child’s best
interest. Furthermore, the Master’s Recommendation on
May 22, 2015 (approved as an Order of Court on May 28,
2015) granted legal and physical custody of the child to
D.B., and permitted only supervised contact for the
parents.
The Adjudicatory/Dispositional Hearing was held on
June 29, 2015, after which an Order of Adjudication and
Disposition - Child Dependent was entered June 30,
2015 finding the child to be a dependent child.[4] Further,
said Order continued legal and physical custody in D.B.,
4
Child was adjudicated dependent pursuant to 42 Pa.C.S. § 6302(1), as
lacking proper parental care and control.
-4-
J-S42045-16
and established a goal of return home to one or both
parents, with a concurrent goal of adoption. The court
ordered the parents to invest in all recommended services,
including but not limited to drug and alcohol, mental health
and re-unification services, and to comply with all
treatment recommendations. The Order also directed that
each parent to undergo a mental health assessment and
follow through with all treatment and counseling that
would be recommended. The parents were ordered to
maintain sobriety and establish and maintain stability
relative to housing.
An Amended Order of Adjudication Disposition -
Child Dependent was entered July 13, 2015.2
On September 22, 2015, a status conference was held.
At the time of the status conference. the Mother had
moved back into the residence with D.B., and, therefore,
FICS Re-unification Services were transitioned to FICS
Preservation Services. The Father was in the Cambria
County Prison at the time.
On November 25, 2015, BCCYF filed its Motion for 6th
Month Permanency/Dispositional Review Hearing/Goal
Change. After hearing held December 15, 2015, a
Permanency Review Order was entered January 5, 2016,
changing the goal to adoption, and also removing the child
from the home of D.B. Legal and physical custody was
vested in BCCYF.
On January 13, 2016, the Mother, S.B., filed a Request
for Reconsideration. On January 15, 2016, the Maternal
Great-Grandmother, D.B., filed her Request for
Reconsideration. Oral argument on said Requests for
Reconsideration was held on January 29, 2016, after which
an Order was entered February 2, 2016 denying and
dismissing both Requests.
On January 13, 2016, the Mother filed a timely Notice of
Appeal as a “children’s fast track appeal”, along with a
Statement For Continuance Of In Forma Pauperis Status
For Purposes Of Appeal (which was approved January 21,
2016); a Concise Statement of Errors Complained Of On
Appeal; and a Request for Transcript of both the June 29,
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J-S42045-16
2015 Adjudicatory Hearing and the December 12, 2015
Permanency Review Hearing.
On January 15, 2016, the Maternal Great-Grandmother,
D.B., timely filed a Notice of Appeal, along with her
Concise Statement of Errors Complaint of on Appeal and a
Request for Transcript.
_______________________________________________
1
At the time of the Adjudicatory/Dispositional Hearing, all
parties through their legal counsel stipulated that if called
to testify, Agency witnesses would testify consistent with
the information set forth in the Dependency Petition,
although not necessary [sic] to the veracity of same. [See
Findings/Orders. #15(a)(2) of 6/30/15 Adjudicatory
Order].
2
The Amended Order of July 13, 2015 was consistent with
the prior Order of Adjudication – Child Dependent entered
June 30, 2015, with the sole exception that we completed
Section 5.(c)(i) - Placement in Kinship Care in the
Amended Order.
Trial Ct. Op., 146 WDA 2016, 2/8/16, at 1-6.5
On appeal, Mother raises three issues, as follows:
I. Where a parent has shown progress in compliance with
the permanency plan developed for a child and toward
alleviating the circumstances which necessitated the
original placement, was it premature to enter a goal
change to adoption after just six months of dependency of
the child?
II. Whether the testimony from Mother’s probation officer
about probation violations prior to dependency and from
Mother regarding residential history prior to dependency
5
On March 28, 2016, MGG filed a petition to withdraw her appeal at Docket
No. 145 WDA 2016. This Court ordered MGG’s appeal discontinued on April
1, 2016.
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J-S42045-16
were relevant to the dependency action, the goal change
petition, and/or the change of placement of the child?
III. Where a child has resided with the maternal great-
grandmother for the majority of her life and there was not
sufficient evidence that the maternal great-grandmother
could not ensure appropriate safety of the child, was it in
the child’s best interest to be removed from the home of
the maternal great-grandmother?
Mother’s Brief at 14.6
First, Mother argues that the trial court prematurely changed the
permanency goal for Child to adoption, only six months after the
dependency process was in place. Mother asserts that she had made
progress in complying with the permanency plan and alleviating the
circumstances that necessitated the placement. Mother states that she also
indicated a willingness to continue with her progress. In her second issue,
Mother claims that the trial court abused its discretion in allowing irrelevant
evidence into the hearing. In particular, she contends that the trial court
improperly relied on testimony from her probation officer regarding her
probation violations committed prior to the time of Child’s adjudication of
dependency, as well as her history of residences before Child’s adjudication
as dependent. In her third issue, Mother argues that the trial court erred in
removing Child from the care and control of MGG, as the evidence showed
that MGG was the most stable influence in Child’s young life. She asserts
6
Mother stated her issues somewhat differently in her concise statement.
We, nevertheless, find them preserved for our review.
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J-S42045-16
that Child has a good bond with MGG, and that removing Child from
placement with MGG was not in Child’s best interests.
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).
Section 6302 of the Juvenile Act defines a “dependent child” as a child
who:
(1) 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, including evidence of the parent’s,
guardian’s or other custodian’s use of alcohol or a
controlled substance that places the health, safety or
welfare of the child at risk[.]
42 Pa.C.S. § 6302(1) (emphasis added).
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child” further.
“The question of whether a child is lacking proper parental
care or control so as to be a dependent child encompasses
two discrete questions: whether the child presently is
without proper parental care and control, and if so,
whether such care and control are immediately available.”
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Id. at 872 (quotation marks and citation omitted); see also In re J.C., 5
A.3d 284, 289 (Pa. Super. 2010). Additionally, the “burden of proof in a
dependency proceeding is on the petitioner to demonstrate by clear and
convincing evidence that a child meets that statutory definition of
dependency.” In re G., T., 845 A.2d at 872 (citation omitted).
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to
make a finding that a child is dependent if the child meets
the statutory definition by clear and convincing evidence.
If the court finds that the child is dependent, then the
court may make an appropriate disposition of the child to
protect the child’s physical, mental and moral welfare,
including allowing the child to remain with the parents
subject to supervision, transferring temporary legal
custody to a relative or a private or public agency, or
transferring custody to the juvenile court of another state.
42 Pa.C.S. § 6351(a).
Id. at 617 (alteration in original and citation omitted).
Regarding the disposition of a dependent child, Sections 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
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J-S42045-16
(1) The court shall conduct a permanency hearing for
the purpose of determining or reviewing the permanency
plan of the child, the date by which the goal of
permanency for the child might be achieved and whether
placement continues to be best suited to the safety,
protection and physical, mental and moral welfare of the
child. In any permanency hearing held with respect to the
child, the court shall consult with the child regarding the
child’s permanency plan, including the child’s desired
permanency goal, in a manner appropriate to the child’s
age and maturity. . . .
(2) If the county agency or the child’s attorney alleges
the existence of aggravated circumstances and the court
determines that the child has been adjudicated dependent,
the court shall then determine if aggravated circumstances
exist. If the court finds from clear and convincing evidence
that aggravated circumstances exist, the court shall
determine whether or not reasonable efforts to prevent or
eliminate the need for removing the child from the child’s
parent, guardian or custodian or to preserve and reunify
the family shall be made or continue to be made and
schedule a hearing as provided in paragraph (3).
42 Pa.C.S. § 6351(e)(1)-(2).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(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 the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
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J-S42045-16
(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.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the
Commonwealth, whether the placement continues to be
best suited to the safety, protection and physical, mental
and moral welfare of the child.
* * *
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that
aggravated circumstances exist and that reasonable efforts
to prevent or eliminate the need to remove the child from
the child’s parent, guardian or custodian or to preserve
and reunify the family need not be made or continue to be
made, whether the county agency has filed or sought to
join a petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to adopt the
child unless:
(i) the child is being cared for by a relative best suited
to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to terminate
parental rights would not serve the needs and welfare of
the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the child’s
parent, guardian or custodian within the time frames set
forth in the permanency plan.
* * *
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(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall
determine one of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return of
the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If 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, guardian
or custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal
custodian in cases where the return to the child’s parent,
guardian or custodian or being placed for adoption is not
best suited to the safety, protection and physical, mental
and moral welfare of the child.
(4) If and when the child will be placed with a fit and
willing relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
(5) If and when the child will be placed in another
planned permanent living arrangement which is approved
by the court, the following shall apply:
(i) The child must be 16 years of age or older.
(ii) The county agency shall identify at least one
significant connection with a supportive adult willing to
be involved in the child’s life as the child transitions to
adulthood, or document that efforts have been made to
identify a supportive adult.
(iii) The county agency shall document:
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(A) A compelling reason that it would not be best
suited to the safety, protection and physical, mental
and moral welfare of the child to be returned to the
child’s parent, guardian or custodian, to be placed
for adoption, to be placed with a legal custodian or
to be placed with a fit and willing relative.
(B) Its intensive, ongoing and, as of the date of
the hearing, unsuccessful efforts to return the child
to the child’s parent, guardian or custodian or to be
placed for adoption, to be placed with a legal
custodian or to be placed with a fit and willing
relative.
(C) Its efforts to utilize search technology to find
biological family members for the child.
(iv) The court shall:
(A) Ask the child about the desired permanency
goal for the child.
(B) Make a judicial determination explaining why,
as of the date of the hearing, another planned
permanent living arrangement is the best
permanency plan for the child.
(C) Provide compelling reasons why it continues
not to be in the best interests of the child to return
to the child’s parent, guardian or custodian, be
placed for adoption, be placed with a legal custodian
or be placed with a fit and willing relative.
(D) Make findings that the significant connection
is identified in the permanency plan or that efforts
have been made to identify a supportive adult, if no
one is currently identified.
(f.2) Evidence.—Evidence of conduct by the parent that
places the health, safety or welfare of the child at risk,
including evidence of the use of alcohol or a controlled
substance that places the health, safety or welfare of the
child at risk, shall be presented to the court by the county
agency or any other party at any disposition or
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permanency hearing whether or not the conduct was the
basis for the determination of dependency.
(g) Court order.—On the basis of the determination
made under subsection (f.1), the court shall order 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.
42 Pa.C.S. § 6351(f)-(g).
In a change of goal proceeding, the best interests of the child—not the
interests of the parent—must guide the trial court; the parent’s rights are
secondary to those of the child’s. In re A.K., 936 A.2d 528, 532-53 (Pa.
Super. 2007). The burden is on the Agency to prove the change in goal
would be in the child’s best interests. In re M.B., 674 A.2d 702, 704 (Pa.
Super. 1996). In contrast, in a termination of parental rights proceeding,
the focus is on the conduct of the parents under 23 Pa.C.S. § 2511. Id. at
705.
This Court has stated:
the focus of all dependency proceedings, including change
of goal proceedings, must be on the safety, permanency,
and well-being of the child. The best interests of the child
take precedence over all other considerations, including
the conduct and the rights of the parent. . . . [W]hile
parental progress toward completion of a permanency plan
is an important factor, it is not to be elevated to
determinative status, to the exclusion of all other factors.
In re A.K., 936 A.2d at 534 (citations omitted). In addition, the court
should consider the bond between the child and the child’s parents, foster
parents, and siblings in determining the child’s best interests. In re H.V.,
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37 A.3d 588, 594-95 (Pa. Super. 2012). In In re N.C., 909 A.2d 818 (Pa.
Super. 2006), another goal change case, the trial court granted a goal
change to adoption despite the fact that the mother had made substantial
progress toward completing her permanency plan. Id. at 825.
Notwithstanding the mother’s substantial progress, this Court held that the
extensive record supported the trial court’s factual findings that the mother’s
parenting skills and judgment regarding her children’s emotional well-being
remained problematic. Id. at 826.
Regarding the placement of a child who has been adjudicated
dependent, this Court has explained:
When a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not
on what the parent wants or which goals the parent has
achieved. See In re Sweeney, 393 Pa. Super. 437, 574
A.2d 690, 691 (1990) (noting that “[o]nce a child is
adjudicated dependent . . . the issues of custody and
continuation of foster care are determined by the child’s
best interests”). Moreover, although preserving the unity
of the family is a purpose of the Act, another purpose is to
“provide for the care, protection, safety, and wholesome
mental and physical development of children coming within
the provisions of this chapter.” 42 Pa.C.S. § 6301(b)(1.1).
Indeed, “[t]he relationship of parent and child is a status
and not a property right, and one in which the state has an
interest to protect the best interest of the child.” In re
E.F.V., 315 Pa. Super. 246, 461 A.2d 1263, 1267 (1983)
(citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
Instantly, in considering Mother’s issues, as set forth above, the trial
court stated as follows.
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In our Order for Adjudication and Disposition - Child
Dependent entered June 30, 2015 (and our Amended
Order entered July 13, 2015), we made the following
specific Findings concerning the Mother:
BCCYF has been involved with the mother since
June, 2012 relative to her parenting of [W.R.B.J, who
is three (3) years of age. Most recently, the Agency
received a report on 3/12/15 that the mother will
take the child with her to friend’s houses while she
smokes marijuana. Following the report, the
caseworker conducted a home visit on 3/13/15 at
[D.B.’s] residence. The mother admitted to smoking
marijuana, and then tested positive for opiates, THC
and benzodiazepines. She admitted to taking street
Suboxone as well. A safety plan was put into effect
on 3/3/15 placing the child in the custody of the
maternal great-grandmother, [D.B.], who is to
supervise all contact between the mother and child.
At the hearing held 6/29/15, [D.B.] confirmed that
the mother goes from friend’s house to friend’s
house and is out late and not conducting herself as a
mother should. As a result of a physical
confrontation that occurred between the mother and
her father on Father’s Day, [D.B.] requested that the
mother vacate her residence. Therefore, at the
present time, the mother does not have an
established residence. The mother’s last contact
with the Agency was on 6/18/15.
The mother was unsuccessfully discharged from
Dolminis due to missed appointments and while
there, had four different positive drug screens. The
Agency has recommended that she undergo a drug
and alcohol assessment by the Blair County Drug &
Alcohol Partnership. The Agency also recommended
Family Drug Court, to which the mother adamantly
refused to participate.
The mother indicates a desire to cooperate with
FICS Preservation Services, however, there have
been several “no shows” for meetings to date
without adequate explanations being offered. Ashley
Langston of FICS testified that based upon her
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observations, [D.B.] is the primary caretaker of
[W.R.B.]. She did express concern that [D.B.] has
“enabled” the mother. We find merit in this concern.
During her testimony, [D.B.] stated that she would
re-consider [S.B.] returning to her home, but only if
she maintained sobriety for a period of time. When
asked to indicate for what period of time, she replied
that she “would want her to be totally clean for a
week or so”. Clearly, with the significance of the
mother’s drug addiction, and her refusal/inability to
acknowledge it, we agree with the Agency and
service provider that the mother needs to
demonstrate sobriety for a significantly longer period
of time (e.g., 6 months) before the goal of
reunification can become a reality. Based upon her
discussions with the Agency, the mother does not
recognize or appreciate the significance of her drug
addiction and its impact on her ability to safely
parent her very young child. The mother would also
benefit from a mental health assessment and any
treatment that may be recommended.
[6/30/15 Adjudicatory Order, No. 1.(c)].
We made the following Findings from our January 5,
2016 Permanency Review Order:
[T]he mother has not established any structure or
stability in her life, and has never served in the
primary caretaker role for her daughter. The
mother’s history with the Blair County Adult Parole &
Probation Office dates back to 2012 [see history set
forth in Petitioner’s Exhibit 2]. Such history includes
multiple parole/probation violations, including but
not limited to positive tests for THC, opiates, K2,
Suboxone, Amphetamines, Methadone, and Alcohol.
In July, 2012, she was referred for in-patient
treatment at Gaudenzia, but left against medical
advice on 9/10/12. She was released from prison to
in-patient at Pyramid on 12/21/12, only to report six
days later she would rather be in jail than inpatient.
Due to her parole/probation violations, she has been
detained in prison on a number of occasions.
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Most recently, the mother was on pre-trial bail
supervision due to pending Criminal Conspiracy and
Theft by Unlawful Taking charges. According to the
testimony of Ashley Michelow of the Blair County
Adult Probation Office, the mother reported for her
in-take and drug screen on 11/17/15 and the
following week, but failed to report the last two
weeks. She has not kept the probation office
informed as to her current address. She tested
positive for Opiates, Benzodiazepines, THC and
Methadone on 11/17/15; and voluntarily admitted to
use of Opiates (Heroin) and THC on 11/24/15. As a
result of these violations, the Commonwealth has
filed a motion to revoke her bail which is scheduled
for hearing on 12/18/15. The mother voluntarily
reported to the Crisis Center on or about 12/1/15,
but was initially denied admission. As a result, she
engaged in self-injurious behavior (cutting herself),
and then was admitted.
Officer Daniel Vasil of the Altoona Police
Department testified concerning two separate
incidents which occurred on 11/8/15 at the residence
of the legal custodian, [D.B.]. The first dispatch was
for a report of a domestic incident involving a knife.
In summary, a dispute arose between [D.B.], the
mother and her then-boyfriend, [A.M.S.]. The
mother had [A.M.S.] stay over in the residence over
[D.B.’s] objection and an argument ensued which
resulted in [D.B.] grabbing a knife and [waving] it at
[A.M.S.]. There was also vulgar name-calling
between the parties. During her interview with the
police, the mother claimed [D.B.] (her grandmother)
was not competent and wanted the police to take
[D.B.] to Crisis. During her interview, [D.B.] stated
that she was afraid of both the mother and [A.M.S.].
After being advised by the police, [D.B.] applied for
and received an emergency protective order against
the mother (which she later dropped over the advice
of the Agency caseworker).
The second incident that occurred on 11/8/15
happened approximately three hours later. Officer
Vasil went to the home to serve the PFA, and
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received a dispatch that there was a male with a
knife threatening everyone. Upon arrival, the officer
observed [A.M.S.] arguing with [R.M. and L.M.]
(family members) and several other people. Officer
Vasil performed a pat-down search of [A.M.S.] and
discovered a knife matching the description he
received from the witnesses. When Officer Vasil
interviewed the mother, she refused to answer his
questions and kept questioning why [A.M.S.] was in
handcuffs. Officer Vasil subsequently discovered
that the mother and [A.M.S.] had packed their
belongings in vacating the residence (due to the
PFA), but that they were attempting to steal items
that belonged to [D.B.], including a safe which
contained jewelry and checks, and a laptop
computer. Officer Vasil also observed the mother
and [A.M.S.] in possession of several items that
constitute drug paraphernalia, therefore, he also
arrested the mother. The mother, who [was]
pregnant, complained of cramps. AMED was called
and transported her to the hospital, where it was
discovered that she had inserted a pill bottle into her
vagina. Several criminal charges were filed against
the mother, including Criminal Conspiracy, Theft by
Unlawful Taking, Receiving Stolen Property,
Possession of a Controlled Substance,
Use/Possession of Drug Paraphernalia, and Access
Device Fraud. Both the mother and [A.M.S.]
admitted certain items of drug paraphernalia
belonged to them.
[W.R.B.] was present within the home during the
incidents of 11/8/15.
Suzi Brannock has been a registered nurse for
twenty years, and is employed by the Pregnancy
Care Center of UPMC-Altoona Hospital. She has
been involved with the mother since 10/8/15 and
confirmed that the mother [was] approximately
sixteen weeks pregnant. She has had several
discussions with the mother about the importance of
not using illegal drugs during her pregnancy. The
mother tested positive for Methadone, Marijuana,
Opiates and Benzodiazepines during her second visit;
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and then for Methadone, Marijuana, Opiates and
Cocaine during her last visit in the week prior to the
hearing. During her discussions, the mother stated
that she felt it was “safer” using drugs during her
pregnancy and that it helped her with her nausea.
The mother had no contact with the Pregnancy
Center during November.
Kristel Wisor of FICS Preservation Services
opened with the mother and child on 9/9/15. FICS
was originally opened during June and July, however,
its services closed when the mother moved out of
[D.B.’s] home and [W.R.B.] remained with her great-
grandmother. Ms. Wisor noted that when the
mother “was clear” and calm and positive, she did a
better job parenting. Once she started her
Methadone treatment, Ms. Wisor indicated that
mother seemed “really out of it”, nodding off and
didn’t interact with the child. Also, if the mother was
agitated, her interaction with the child was not
appropriate. There was an approximate two week
period of time in September that the mother was
doing well, however, that was short-lived. Between
9/9/15 and 11/8/15 (when the mother went to jail),
she passed all drug tests, but Ms. Wisor
acknowledged that these were not random screens
and the mother knew she would be tested.
Ms. Wisor described the relationship between the
mother and [D.B.] as “interesting”, and indicated
that it is difficult for [D.B.] to stand up to the
mother. Ms. Wisor stated [W.R.B.] is a “spirited”
child, and expressed concern for [D.B.] to care and
control the child as she gets older.
Kendra Wheelden, the Agency caseworker,
testified as to the mother’s inability to establish and
maintain stable housing. She also confirmed that
[D.B.] stated that she didn’t want the mother to be
in her home and that she wanted to keep [W.R.B.]
from all the drug activity, but then dropped the PFA
versus the mother against the caseworker’s advice.
Ms. Wheelden testified that [D.B.] “enables” the
mother and that when [D.B.] personally feels the
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“mother is “doing better”, she allows her to be
around. The Agency is seeking a goal change to
adoption and a modification of placement, seeking to
place the child in a pre-adoptive home (which has
been identified). Ms. Wheelden confirmed that the
Agency’s recommendations are not only based upon
the recent events, but on the long history of this
case. Such history includes the mother taking
[W.R.B.] out of [D.B.’s] home and into various
homes where there was on-going drug activity. The
Agency feels that [D.B.] cannot control the situation
with the mother, and that if this child remains with
her great-grandmother, the mother will still
essentially be the one “in control” and pose a
potential safety risk to the child. Ms. Wheelden also
testified that the Agency has exhausted all possible
resources to assist this family. Despite those
services, no progress has been made to eliminate
the issues that led to Agency involvement.
The mother, [S.B.], testified and acknowledged
the pending criminal charges and stated she is
currently residing in the domestic abuse shelter.
She admitted to self-injurious behavior in order to
gain admission into the Crisis Center in early
December. She is on a waiting list for Section 8
housing and looking for employment. She has a
mental health diagnosis, and is in Methadone
treatment at Discovery House. She believes she did
well for approximately 3 to 4 months, but admitted
that she has “slid back”. According to her own
testimony, it appears that the mother lived at at
least five different residences between June 20 and
late-July when she moved back in with [D.B.] until
the 11/8/15 incident.
Relative to her relationship with [A.M.S.], the
mother acknowledged that he stayed the night and
came over other days and that his presence was a
source of contention with [D.B.]. The mother also
testified that [A.M.S.] was physically and emotionally
abusive toward her, and that he forced her to sleep
with men for drug money. She stated that
[A.M.S.’s] friends were also using drugs. During one
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incident, the mother said [A.M.S.] beat her up,
knocked her out, and tried to kill her baby.
[1/5/16 Permanency Review Order, No. 3(a)(ii)].
SUMMARY:
In addressing the Concise Statement of Errors that the
Mother raised on appeal, we considered the entire history
that BCCYF has had with this family, dating back to June
2012. The issues that led to the Agency’s initial
involvement remain the issues today, i.e., the Mother’s
drug addiction; the Mother’s refusal to acknowledge that
she has a drug problem; the Mother’s refusal to invest in
necessary drug and alcohol treatment; the Mother’s refusal
to engage in mental health treatment; the Mother never
serving in the primary caretaker role for her daughter; the
Mother never establishing any structure or stability in her
life; the Mother’s involvement in criminal activity and
inability to abide by the terms and conditions of her
supervision; the Mother’s questionable decisions relative to
whom she associates; and the Mother’s volatile
relationship, at times, with the Maternal Great-
Grandmother, D.B. We also believe that the testimony of
the Mother’s probation officer, Ashley Michelow, during the
6th Month Review Hearing held December 15, 2015 was
highly relevant and probative. Ms. Michelow’s testimony
confirmed that the Mother tested positive for several
different illegal drugs and failed to keep her probation
officer informed as to her current residence. As a result,
the Commonwealth moved to revoke her bail.
Finally, our January 5, 2016 Permanency Review Order
set forth in detail the reasons why we removed the child
from placement with D.B., the Maternal Great-
Grandmother, as we outlined above. We also note the
child’s GAL supported our decision.
Therefore, we respectfully request your Honorable
Superior Court of Pennsylvania to affirm our Permanency
Review Order of January 5, 2016, including the goal
change to adoption.
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Trial Ct. Op., No. 146 WDA 2016, 2/8/16, at 1-14. For the reasons
expressed by the trial court, we find no merit to Mother’s contention that the
trial court prematurely changed Child’s permanency goal to adoption, in
view of the ample evidence before the trial court that supported the goal
change. See In re N.C., 909 A.2d at 825-26 (holding record substantiated
trial court’s factual findings); see also In re R.J.T., 9 A.3d at 1190 (holding
appellate court required to accept trial court’s findings of fact and credibility
determinations when they are supported by the record).
Next, as to Mother’s second issue, regarding whether the trial court
improperly relied on irrelevant evidence, the question of whether to admit
evidence is in the sound discretion of the trial court, and we review the
decision under an abuse of discretion standard. See A.J.B. v. M.P.B., 945
A.2d 744, 749 (Pa. Super. 2008).
Evidentiary rulings are committed to the sound
discretion of the trial court, and will not be overruled
absent an abuse of discretion or error of law. In order to
find that the trial court’s evidentiary rulings constituted
reversible error, such rulings must not only have been
erroneous but must also have been harmful to the
complaining party. Appellant must therefore show error in
the evidentiary ruling and resulting prejudice, thus
constituting an abuse of discretion by the lower court.
Whitaker v. Frankford Hosp. of the City of Phila., 984 A.2d 512, 522
(Pa. Super. 2009) (citations and internal quotation marks omitted).
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Pa.R.E. 401. “All
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relevant evidence is admissible, except as otherwise
provided by law.” Pa.R.E. 402. “Although relevant,
evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” Pa.R.E. 403.
Jacobs v. Chatwani, 922 A.2d 950, 963 (Pa. Super. 2007).
In the case before us, the concern before the trial court was Child’s
best interests and Mother’s best interests were only secondary. In re A.K.,
936 A.2d at 532-33; In re M.B., 674 A.2d at 704-705. Because the
evidence of Mother’s probation history and lack of a residence was relevant
to Child’s best interests, we discern no abuse of discretion. See Whitaker,
984 A.2d at 522; Jacobs, 922 A.2d at 963.
Finally, with regard to Mother’s contention that the trial court abused
its discretion in changing Child’s placement from residing with MGG, we
observe that MGG has withdrawn her appeal from the change in placement.
In its opinion regarding MGG’s appeal, the trial court stated as follows:
In our January 5, 2016 Permanency Review Order, we
made the following specific Findings concerning the
Maternal Great-Grandmother, D.B.:
[D.B.] tends to the basic needs of the child. The
concern of the Agency and the service providers,
which we find to be a legitimate concern, is whether
the maternal great- grandmother will make safe and
appropriate decisions when it comes to the mother
and allowing the mother access to the child. The
mother has significant addiction and mental health
issues and has never demonstrated a consistent
willingness to engage in appropriate treatment for
her co-occurring issues. Her life is chaotic, and she
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has exposed the child to the culture of the illegal
drug world. There are concrete examples of the
maternal great-grandmother not being able to
control situations involving the mother and/or
making unwise decisions concerning the mother.
One example would be the incidents of 11/8/15 set
forth above and as testified to by Officer Vasil of the
Altoona Police Department. The situation became so
volatile and extreme that [D.B.] grabbed a knife and
wielded it at [A.M.S.]. The child was present during
both incidents on 11/8/15. A second example would
be when [D.B.] decided to drop the PFA Order she
had against the mother one day after being advised
by the caseworker to keep the protective order in
effect. The mother testified that if we continued
custody with [D.B.], that she would abide by any
court order directing that she have no contact. We
do not accept this testimony as being credible.
Based upon the history of this case, we are
satisfied that there will continue to be incidents and
situations that will create an unhealthy environment
for the child (who is only 3 1/2 years of age), and
will expose her to circumstances that would certainly
not be in her best interests and welfare. Another
concern is a very practical concern, i.e., the maternal
great-grandmother’s age and health. [According to
the Dependency Petition filed 5/13/15, [D.B.] was
born 12/[--]/51, making her 64 years of age]. As
Ms. Wisor testifed, [W.R.B.] is a very spirited and
strong-willed child and at times, difficult to control.
We have serious concern as to [D.B.’s] ability to
maintain proper supervision and control of the child
in the coming years. If and when [D.B.] is unable or
incapable of doing so, what then? Who will be the
resource for the child? The parents, neither of whom
have demonstrated any ability or even a sincere
willingness to achieve and maintain sobriety and
structure and stability in their lives? The appropriate
time to seek safety and permanency for this young
child is the present.
Finally, we incorporate herein our FINDINGS OF
FACT as set forth in our Order of Adjudication and
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Disposition - Child Dependent entered 6/30/15. In
said Findings, we found merit in the testimony of
Ashley Langston of FICS that based upon her
observations, [D.B.] was the primary caretaker of
[W.R.B.] and she expressed concern that [D.B.]
enables the mother. We also found the following
(p.2 of 5):
“During her testimony, [D.B.] stated that she
would re-consider [S.B.] returning to her home, but
only if she maintained sobriety for a period of time.
When asked to indicate for what period of time, she
replied that she “would want her to be totally clean
for a week or so.” Clearly, with the significance of
the mother’s drug addiction, and her refusal/inability
to acknowledge it, we agree with the Agency and
service provider that the mother needs to
demonstrate sobriety for a significantly longer period
of time (e.g., 6 months) before the goal of
reunification can become a reality.”
Trial Ct. Op., 145 WDA 2016, 2/8/16, at 13-14.
After a careful review of the record, we find that the trial court’s
findings of fact and credibility assessments are supported by competent
evidence of record that support the change in placement, vesting of legal
and physical custody in BCCYF, and the change in permanency goal to
adoption. In view of our deferential standard of review as set forth in In re
R.J.T., 9 A.3d at 1190, we cannot disturb the findings and credibility
assessments of the trial court. See also In re A.B., 19 A.3d 1084, 1093-94
(Pa. Super. 2011) (stating that this Court will not upset the juvenile court’s
credibility determinations). Accordingly, we affirm the trial court’s order.
Order affirmed. Child’s “Motion for Extension of Time in Which to File
Documents” denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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