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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: M.A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.C.R., FATHER : No. 570 MDA 2017
Appeal from the Decree February 28, 2017
In the Court of Common Pleas of York County
Orphans’ Court at No: 2016-0142
IN THE INTEREST OF: M.A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.C.R., FATHER : No. 574 MDA 2017
Appeal from the Order Entered March 1, 2017
In the Court of Common Pleas of York County
Juvenile Division at No: CP-67-DP-0000095-2015
BEFORE: OTT, STABILE, and PLATT*, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2017
A.C.R. (“Father”) appeals from the decree entered February 28, 2017,
in the Court of Common Pleas of York County, which involuntarily terminated
his parental rights to his minor son, M.A.R. (“Child”), born in November
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Retired Senior Judge assigned to the Superior Court.
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2012.1 In addition, Father appeals from the order entered March 1, 2017,
which changed Child’s permanency goal from reunification to adoption. After
careful review, we affirm.
On May 11, 2015, the York County Office of Children, Youth and
Families (“CYF”) filed an application for emergency protective custody of
Child. In its application, CYF averred that officers from the York City Police
Department discovered Mother unconscious on a porch in the middle of the
night, and that she appeared to be intoxicated. Application for Emergency
Protective Custody, 5/11/15, at 3-4. The officers also discovered Child, who
was left unsupervised in his stroller. Id. at 4. CYF averred that Father was
not available to care for Child at that time, due to his incarceration. Id.
Specifically, Father was incarcerated due to a parole violation, as well as
charges of public drunkenness, disorderly conduct, and resisting arrest. Id.
The trial court granted CYF’s application, and entered an order of emergency
protective custody. Child remained in the custody of CYF pursuant to a
shelter care order entered May 15, 2015, and the court adjudicated Child
dependent on May 26, 2015.
On November 15, 2016, CYF filed a petition to involuntarily terminate
Father’s parental rights to Child, as well as a petition to change Child’s
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The decree also terminated the parental rights of T.R. (“Mother”). Mother
did not file a brief in connection with this appeal, nor did she file her own
separate appeal.
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permanency goal from reunification to adoption. The trial court conducted a
combined termination and goal change hearing on January 17, 2017.
Following the hearing, on February 28, 2017, the court entered a decree
terminating Father’s parental rights. The court entered an order changing
Child’s permanency goal from reunification to adoption on March 1, 2017.2
Father timely filed notices of appeal on March 30, 2017, along with concise
statements of errors complained of on appeal.
Father now raises the follows issues for our review.
I. Did the trial court err in granting a contested involuntary
termination of parental rights without appointing legal counsel to
represent the proposed adoptee?
II. Did the trial court err in changing the goal of a juvenile
dependency proceeding from family reunification to adoption
where the child was not removed from the care of the father,
where he had not had the opportunity to work with services, and
where he was about to be released from incarceration?
Father’s Brief at 5 (suggested answers and unnecessary capitalization
omitted).
In his first issue, Father challenges the decree terminating his parental
rights to Child. Our standard of review is well-settled.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
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The order also established a concurrent goal of placement with a legal
custodian.
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or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
In his brief on appeal, Father makes no effort to challenge the
evidence supporting the trial court’s termination decree. Instead, Father
focuses entirely on the court’s failure to appoint legal counsel for Child
pursuant to our Supreme Court’s recent holding in In Re Adoption of
L.B.M., 2017 Pa. LEXIS 1150 (corrected opinions filed May 23, 2017). In
L.B.M., the Court held that trial courts must appoint counsel to represent
the legal interests of any child involved in a contested involuntarily
termination proceeding pursuant to 23 Pa.C.S.A. § 2313(a).3 The Court
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Section 2313(a) provides as follows.
(a) Child.--The court shall appoint counsel to represent the
child in an involuntary termination proceeding when the
proceeding is being contested by one or both of the parents.
The court may appoint counsel or a guardian ad litem to
represent any child who has not reached the age of 18 years and
is subject to any other proceeding under this part whenever it is
in the best interests of the child. No attorney or law firm shall
represent both the child and the adopting parent or parents.
23 Pa.C.S.A. § 2313(a).
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explained that a child’s legal interests are distinct from his or her best
interests, in that a child’s legal interests are synonymous with the child’s
preferred outcome, while a child’s best interests must be determined by the
court. Id. at *2-3. While Father concedes that Child was represented by his
dependency guardian ad litem (“GAL”) during the termination and goal
change hearing, Father insists that representation by a dependency GAL
does not comply with Section 2313(a). Father’s Brief at 8.
Father is mistaken in his interpretation of L.B.M. This Court has
explained that case’s holding as follows.
As a point of information, Justice Wecht’s opinion in L.B.M states
that the trial court is required to appoint a separate,
independent attorney to represent a child’s legal interests even
when the child’s GAL, who is appointed to represent the child’s
best interests, is an attorney. Justice Wecht would hold that the
interests are distinct and require separate representation. While
Justice Wecht, joined by Justices Donohue and Dougherty,
sought to so hold, four members of the court, Chief Justice
Saylor and Justices Baer, Todd, and Mundy disagreed in different
concurring and dissenting opinions with that part of the lead
opinion's holding. Specifically, while the other justices agreed
that the appointment of counsel for the child is required in all
TPR cases and that the failure to do so by the trial court is a
structural error, they did not join that part of Justice Wecht’s
opinion which sought to hold that the GAL may never serve as
counsel for the child. Rather, such separate representation
would be required only if the child’s best interests and legal
interests were somehow in conflict. . . .
In re D.L.B., 2017 Pa. Super. LEXIS 436 at *14-15 (filed June 15, 2017).
In this case, we discern no conflict between Child’s best interests and
legal interests. With respect to Child’s best interests, Child was represented
during the termination and goal change hearing by Edna Moore, Esquire,
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who appeared on behalf of Child’s GAL, Marc Semke, Esquire. Attorney
Moore reported that Attorney Semke supported the termination of Father’s
parental rights. N.T., 1/17/2017, at 54.
With respect to Child’s legal interests, our review of the record does
not reveal that the GAL’s position differed from Child’s preferred outcome.
Child was just over four years old at the time of the termination hearing, and
it is clear that he was too young to provide any input on whether Father’s
parental rights should be terminated. Moreover, as discussed in greater
detail below, the record indicates that Child is bonded with his pre-adoptive
foster mother, C.C. Id. at 35. Child’s relationship with Father is minimal, as
they have had no direct contact since at least October 2014, when Child was
less than two years old. Id. at 33, 59. Thus, we conclude that Attorneys
Moore and Semke represented both Child’s best interests and legal interests,
and that this dual role did not run afoul of L.B.M.
We next consider the second issue presented in Father’s brief, in which
he challenges the order changing Child’s permanency goal from reunification
to adoption. This Court employs the following standard of review when
considering an appeal from a goal change order.
[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).
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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 its opinion, the trial court found that Child’s best interests would be
served by changing his permanency goal from reunification to adoption. The
court found that Father’s incarceration prevented him from having direct
contact with Child throughout his dependency. Trial Court Opinion 2/28/17,
at 7. Father remained incarcerated at the time of the termination and goal
change hearing, and it was not clear when Father would be able to care for
Child. Id. at 11-12. In addition, the court found that Child resides in a
foster home with his two half-siblings, and that Child is strongly bonded to
his half-siblings and his foster mother. Id. at 10.
Father argues that he parented Child successfully prior to his
incarceration, and that the trial court should have granted him another
opportunity to do so upon his release. Father’s Brief at 9-10. Father argues
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that he was unable to participate in reunification services while incarcerated,
but that he maintained contact with CYF and participated in several
programs provided by the prison. Id. at 10. Father further argues that he
anticipated being paroled by March 2017, and that he would be available to
care for Child within three months of his parole. Id.
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion. During the termination and goal
change hearing, CYF presented the testimony of caseworker Stephanie Lynn
Riddle. Ms. Riddle testified that Child has not seen Father since before his
incarceration. N.T., 1/17/17, at 33. As a result, Child has had only indirect
contact with Father throughout his dependency. Id. Ms. Riddle testified
that she was assigned to this case in approximately October 2016, and that
Father sent one card to Child since that time. Id. at 21, 43. Father also
sent “two different fabrics that he had painted while he was incarcerated as
gifts[.]” Id. at 43.
In contrast, Ms. Riddle testified that Child has lived with the same pre-
adoptive foster mother, C.C., since he was placed in foster care. Id. at 34,
45. Child is “very bonded” to C.C., and refers to her as “mom.” Id. at 35.
Child also has a good relationship with his two half-siblings, who live in the
same foster home.4 Id. at 41, 51.
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Child’s half-siblings are the children of Mother, but not of Father. N.T.,
1/17/17, at 41.
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The trial court also heard the testimony of Father. Father testified that
he was incarcerated in October 2014, and that his maximum sentence will
expire in December 2018. Id. at 59, 69. Father reported that he is eligible
for parole, and that he hoped to receive a decision from the parole board
within approximately two to four weeks. Id. at 70. Father believed that he
would be released about two weeks after receiving a decision. Id. Father
planned to reside in a halfway house for approximately a month until he is
able to obtain a job and find other housing. Id. at 67, 75. Father estimated
that he would be able to care for Child within three months of being
released. Id. at 76.
Thus, the record supports the trial court’s conclusion that changing
Child’s permanency goal to adoption is in Child’s best interest. While Father
estimated that he would be able to care for Child within several months, the
court was free to reject this estimate, and to conclude that Father’s ability to
care for Child remained speculative. Moreover, Child has not seen Father
since at least October 2014, when Child was less than two years old. Father
has had only indirect contact with Child since that time, and the record
contains no indication that Child has a bond with Father or even remembers
who he is. In contrast, Child is bonded with his pre-adoptive foster mother,
C.C., and with his half-siblings, who reside in the same foster home. It was
within the court’s discretion to conclude that Child’s life should not be put on
hold any longer. As this Court has explained in the context of involuntary
termination of parental rights proceedings, “a child’s life cannot be held in
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abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights and
changing Child’s permanency goal to adoption. We therefore affirm the
court’s decree and order.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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