J-S55017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.G. JR., J.G., : IN THE SUPERIOR COURT OF
M.G. : PENNSYLVANIA
:
:
:
:
APPEAL OF: J.G. SR., FATHER : No. 715 WDA 2020
Appeal from the Order Dated June 19, 2020
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-DP-0000120-2015,
CP-11-DP-0000130-2018, CP-11-DP-0000131-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 12, 2021
J.G., Sr. (Father), appeals from the June 19, 2020, dependency orders,
entered in the Cambria County Court of Common Pleas, regarding his three
sons, J.G., Jr., born in April of 2010, J.G., born in November of 2011, and
M.G., born in April of 2014 (collectively, the Children). The orders changed
the Children’s permanency goals from reunification to adoption.1 Father
argues the trial court erred in finding the Children are dependent and in
changing the goals to adoption. After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The Children’s mother, T.G. (Mother), did not appeal from the subject orders.
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I. Facts & Procedural History
We summarize the relevant facts and procedural history as follows.
M.G., the youngest child, suffers from a “genetic abnormality,” and his medical
treatment involved “a specific feeding regiment,” which included four cans of
PediaSure per day. Trial Ct. Op., 8/12/20, at 2. The Cambria County Children
and Youth Services (the Agency) learned M.G. was receiving only one can per
day. Id. As a result, the “Agency advised Father to take M.G. to the
emergency room[,] but [he] refused.” Id. at 9. The Agency was “concerned
with Father’s failure to follow through with M.G.’s medical care,” and on April
20, 2018, the trial court placed then-four-year-old M.G. in the emergency
custody of the Agency.2 Three days later, on April 23, 2018, following a
shelter care hearing, the trial court placed M.G. in shelter care. Id.
On May 4, 2018, following an evidentiary hearing, the court adjudicated
M.G. dependent and placed him in the legal and physical custody of the
Agency. Trial Ct. Op. at 2. The court established reunification as M.G.’s
placement goal. Order of Adjudication & Disposition, 5/4/18, at 2. Father
was required to satisfy the following permanency plan objectives, in part:
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2 M.G. was previously adjudicated dependent in October of 2015, and the court
placed him in the legal and physical custody of the Agency. The court
terminated M.G.’s dependency two years later, in October of 2017. Thus, M.G.
was in the legal and physical custody of Father and Mother for approximately
seven months before the court adjudicated him dependent again. N.T. at 60–
61.
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participate in a psychological evaluation; attend M.G.’s medical appointments;
maintain a clean, safe, and adequately furnished home; cooperate with all
Agency-scheduled home and office visits; and allow the Agency to inspect his
home. Trial Ct. Op. at 2. Thereafter, the court held permanency review
hearings for M.G. at regular intervals. Id. at 3.
On October 19, 2018, the trial court placed the older children, J.G., Jr.,
and J.G., in the emergency custody of the Agency, due to the Agency’s receipt
of a report from the older children’s school alleging Mother had physically
abused them. Trial Ct. Op. at 3. The report alleged that during the physical
abuse, “Father was outside, aware of [the] abuse, [but] did not intervene.”
Id. The report further alleged that J.G., Jr., and J.G. were treated at the
hospital for injuries sustained from Mother’s abuse, including abrasions,
bruises, and scratches. Id. In addition, the report alleged that J.G., Jr., and
J.G. were “monitored for 24 hours for symptoms of a concussion.” Id.
Following a shelter care hearing on October 22, 2018, the trial court
placed J.G., Jr., and J.G. in shelter care. Trial Ct. Op. at 4. On October 31st,
following an evidentiary hearing, the court adjudicated J.G., Jr., and J.G.
dependent and placed them in the legal and physical custody of the Agency.3
Id. The court likewise established reunification as the permanency goals for
____________________________________________
3 At the time of the underlying goal change proceeding, M.G. and J.G. resided
in the same foster care home. N.T. at 53. J.G., Jr., was in a separate foster
placement.
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J.G., Jr., and J.G. The court set forth the same permanency objectives for
Father as in M.G.’s dependency case, and the court held permanency review
hearings at regular intervals. Id.
On June 9, 2020, the Agency filed three separate goal change petitions
for each child. The trial court conducted a hearing on June 16th. The Agency
presented: (1) the testimony of its caseworkers, Ashley Shaffer and Carol
Crouse; (2) the testimony of and a June 12, 2020, written report by Jeffrey
Grove, a family advocate at the Bair Foundation; (3) the testimony of and
written evaluation by Dennis M. Kashurba, a licensed psychologist who
performed evaluations of both Father and Mother; (4) the testimony of and
written summary by Kathy Scaife, the Independent Families Services (IFS)
caseworker, who worked with Father regarding budgeting issues; and (5) the
testimony of Dr. John Jubas, the court-appointed educational decision-maker
for the Children. At this juncture we note Dr. Kashurba testified Father “has
barely adequate intellectual ability to function in a primary parent role for the
two older boys[, even] if he has continued intensive services of the sort that
are currently in place.”4 N.T., 6/16/20, at 38. Father testified on his own
behalf.
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4 Dr. Kashurba also testified that Mother “function[s] within a mild level of
intellectual disability[, and] appears to have ongoing mental health issues.”
N.T. at 35.
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At the conclusion of the permanency hearing, the trial court granted the
Agency’s petitions to change the Children’s permanency goals to adoption.
N.T. at 77. In addition, the court suspended the Children’s visits with Father
and Mother. Id. Finally, the court ordered the Agency to place the Children
in trauma therapy, and “to explore different adoptive families for the different
children to whatever will suit the best needs of each child individually.” Id.
at 77, 79.
On June 19, 2020, the trial court issued the three underlying
permanency review orders, changing each of the Children’s permanency goals
to adoption.5 The orders suspended all visitation between Father, Mother, and
the Children. Finally, the orders directed the Agency to enroll the Children in
trauma therapy and to identify separate adoptive resources for them.
On July 8, 2020, Father timely filed a counseled single notice of appeal
from the permanency orders, wherein he listed all of the Children’s trial court
docket numbers. The following day, Father filed a single concise statement of
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5 The text of the orders state the issuance date is June 17, 2020; however,
the orders are stamped filed as of June 19th. Furthermore, we note the trial
court issued an amended permanency review order dated June 29, 2020, with
respect to J.G. only. Upon review, it appears to be identical to the original
June 19th order.
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errors complained of on appeal, wherein he also listed all of the Children’s trial
court docket numbers.6
II. Walker Issue
On September 16, 2020, this Court directed Father to show cause why
his appeal should not be quashed pursuant to Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), wherein our Supreme Court held Pa.R.A.P. 341(a)7
requires an appellant to file separate notices of appeal “when a single order
resolves issues arising on more than one lower court docket, [and the] failure
to do so will result in quashal of the appeal.” See id. at 977. Father
responded in part:
4. Even though the [C]hildren involved all have independent
dockets numbers, the case(s) were heard by the trial court at one
time, collectively and not independently of one another.
5. The evidence presented against Father was admitted and heard
by the trial Court simultaneously for the purpose of all three
[C]hildren and docket numbers.
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6In a children’s fast track appeal, “the concise statement of errors complained
of on appeal shall be filed and served with the notice of appeal.” Pa.R.A.P.
1925(a)(2)(i). Because no party claims prejudice as a result of Father’s
procedural violation, we will not quash or dismiss his appeal on this basis.
See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (declining to find
waiver where mother filed Rule 1925(a)(2) statement three days after notice
of appeal, where other parties were not prejudiced).
7 Rule 341(a) provides that generally, “an appeal may be taken as of right
from any final order of a . . . trial court.” Pa.R.A.P. 341(a).
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Father’s Response, 9/25/20, at ¶¶ 4–5. By order dated October 28, 2020,
this Court discharged the show cause order, but advised the parties that
merits panel may revisit the issue of the propriety of this appeal.
This Court has explained:
In [Walker], our Supreme Court disapproved of the common
practice of filing a single notice of appeal from an order or
judgment involving more than one docket number. . . .
* * *
However, there are exceptions to the bright-line rule set forth
in Walker. This Court has declined to quash a defective notice of
appeal when the defect resulted from an appellant’s acting in
accordance with misinformation from the trial court, deeming the
situation a breakdown in court operations. See Commonwealth
v. Larkin, [235 A.3d 350] (Pa. Super. 2020) (en banc)[.] In
Larkin, an appellant filed a pro se notice of appeal seeking relief
relating to more than one docket after the order informing
appellant of his appellate rights provided “Petitioner has [30] days
from the date of this order to file an appeal.” [Larkin, 235 A.3d
at 354] (emphasis in original). An en banc panel of this Court
held that this Court may “overlook the requirements of Walker
where . . . a breakdown occurs in the court system, and a
defendant is misinformed or misled regarding his appellate
rights.” Id. . . .
In the Int. of K.M.W., 238 A.3d 465, 469 (Pa. Super. 2020) (en banc).
In K.M.W., the mother filed a single notice of appeal from a decree
that involuntarily terminated her parental rights at one docket and changed
the child’s permanency goal to adoption at another docket. K.M.W., 238
A.3d 468-69. This Court declined to quash the appeal, reasoning, in part,
that “[t]he trial court’s indication that [she] could seek relief from this Court
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by filing a singular appeal from multiple lower court docket numbers
constitutes a breakdown in court operations.” Id. at 470 (emphasis added).
In the case sub judice, we note that each of the three Children’s
dependency cases has a separate trial docket number, and the Agency filed
separate petitions for goal change — one at each Child’s docket. The trial
court did not issue one single order disposing of all three dockets. Instead,
the court issued three separate orders, each pertaining to one child’s case
only. Accordingly, we acknowledge Walker is not squarely implicated. See
Walker, 185 A.3d at 971 (“[W]here a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each
case.”) (emphasis added). Nevertheless, to the extent Father wishes to
challenge all three Children’s goal changes, it is clear he was required to file
a separate notice of appeal from each order. See Pa.R.A.P. 902 (“An appeal
permitted by law as of right from a lower court to an appellate court shall be
taken by filing a notice of appeal with the clerk of the lower court within the
time allowed by Rule 903 (time for appeal).”).
After review of the certified record, we emphasize the following
irregularities. Although each child’s case has a separate trial docket number,
the three records are bound together in a single volume. Appearing first in
the record are the separate trial court dockets for each child. The next portion
of the record consists of pleadings and orders relating to M.G. only, through
the Agency’s September 27, 2018, motion for a permanency hearing.
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The next portion of the record, however, begins with the Agency’s
October 23, 2018, shelter care application filed with respect to J.G., Jr.,
followed by the shelter care application filed on the same date with respect to
J.G. The record then includes a single order dated October 23, 2018,
removing both J.G., Jr., and J.G. from Father and Mother’s custody pending
the shelter care hearing. Likewise, the record includes a single order dated
October 31, 2018, appointing Dr. John A. Jubas as the educational decision-
maker for J.G., Jr., and J.G. Otherwise, separate pleadings and orders
pertaining to J.G., Jr., and J.G. are filed, but they appear interspersed in
chronological order. Put another way, this part of the record includes a filing
for J.G., Jr., then immediately thereafter the same type of filing for J.G. Next,
beginning with the Agency’s February 14, 2019, motion for a permanency
hearing, the record is organized chronologically with the separate pleadings
and orders for all three Children. The only exception is the trial court’s April
1, 2019, single order appointing a child advocate, which lists all three
Children’s docket numbers.
We summarize the above in detail to provide context for Father’s single
notice of appeal, which lists all three docket numbers. Although he filed a
single notice of appeal — as well as a single Rule 1925(a)(2) statement — the
court entered them as filed at all three Children’s dockets. On review, this
panel attempted to determine whether the notice of appeal was filed at a
particular docket, so as to conclude the appeal at that docket at least was
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proper. However, due to the state of the record — the intermingling of all
three Children’s filings and orders — we could not do so.
We thus conclude, on the particular record before us, that a breakdown
in court operations occurred where: the three Children’s certified records are
intermingled and bound together as one volume; the trial court has issued
several single orders that pertained to more than one docket number; and we
are unable to discern at which docket the notice of appeal was filed.
Furthermore, we note the trial court provided no instruction to Father, after
announcing its ruling, that he could seek appellate relief.8 We thus decline to
quash Father’s appeals for any violation of our Rules of Appellate Procedure.
We now turn to the merits of Father’s appeal.
III. Father’s Challenges to Goal Change Orders
Father raises the following issue for our review:
Whether the Court abused its discretion or committed an error of
law when it granted the Petition for Dependency and ordered the
permanency goal of adoption, without further attempting
reunification under the Adoption and Safe Families Act 42 U.S.C.
671 et seq.
Father’s Brief at 4.9
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8The trial court made no mention of any appeal or appeals. See N.T. at 79-
80.
9While Father raises only one issue in his statement of the questions involved,
his argument is divided, with headings, into two distinctive parts, contrary to
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part — in
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First, Father argues the trial court erred in: (1) finding the Agency
established the Children met the definition of dependency under Section 6302
of the Juvenile Act,10 42 Pa.C.S. § 6302; and (2) granting the Agency’s petition
for dependency. Father’s Brief at 4-7. As discussed above, however, the
court previously adjudicated M.G. dependent on April 24, 2018, and J.G., Jr.,
and J.G. on October 23, 2018. Those prior orders are not the subject of this
appeal. Instead, this appeal is taken from the June 19, 2020, orders changing
the Children’s goals from reunification to adoption. Accordingly, no relief is
due on Father’s challenge to the adjudications of dependency. To the extent
Father challenges the fact that the instant order “maintain[s] the [C]hildren’s
dependency,” we address that argument in his remaining claims below. See
id. at 7.
Next, Father relies on the following provisions of the federal Adoption
and Safe Families Act (ASFA):
§ 671. State plan for foster care and adoption assistance
(a) Requisite features of State plan. In order for a State
to be eligible for payments under [42 USCS §§ 670 et seq.], it
shall have a plan approved by the Secretary which —
* * *
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distinctive type or in type of distinctively displayed — the particular point
treated therein, followed by such discussion and citation of the parties as are
deemed pertinent.”).
10 42 Pa.C.S. §§ 6301-6375.
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(15) provides that —
(A) in determining reasonable efforts to be made
with respect to a child, as described in this paragraph,
and in making such reasonable efforts, the child’s health
and safety shall be the paramount concern;
(B) except as provided in subparagraph (D),
reasonable efforts shall be made to preserve and reunify
families —
(i) prior to the placement of a child in foster
care, to prevent or eliminate the need for removing
the child from the child’s home; and
(ii) to make it possible for a child to safely
return to the child’s home;
* * *
(D) reasonable efforts of the type described in subparagraph
(B) shall not be required to be made with respect to a parent of a
child if a court of competent jurisdiction has determined that —
(i) the parent has subjected the child to aggravated
circumstances (as defined in State law, which definition may
include but need not be limited to abandonment, torture,
chronic abuse, and sexual abuse)[.]
Father’s Brief at 8-10, quoting 42 U.S.C. § 671(a)(15)(A), (B)(i)-(ii), (D)(i).
With respect to Section 671(a)(15)(A), Father asserts the trial court
abused its discretion in changing the Children’s goals without considering their
health and safety. Father’s Brief at 8. With respect to the “reasonable efforts”
required by Section 671(a)(15)(B), Father argues the Agency made “little to
no effort . . . to preserve and reunify” the Children with him. Id. at 9.
Specifically, Father asserts the Agency’s “information is stale, [as] they based
their information on housing conditions prior to removal [in April and October
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of 2018], psychological evaluations that took place over a year and a half prior
to the goal change hearing, and his limited progress before December of
2019.” Id. Further, he asserts, “visits due to Covid-19 pandemic were done
via ‘zoom’ or video chat, which limited hands-on parenting skills and lessons.”
Id. Lastly, with respect to Section 671(a)(15)(D), Father asserts aggravated
circumstances did not exist in this case, and thus the trial court “prematurely
changed the goal to . . . adoption, by not first offering adequate services in
an attempt at reunification.” Id. at 10-11. After careful review, we conclude
the testimonial and documentary evidence supports the trial court’s goal
change orders.
We review a goal change order for an abuse of discretion. In re R.M.G.,
997 A.2d 339, 345 (Pa. Super. 2010).
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was “manifestly
unreasonable,” that the court did not apply the law, or that the
court’s action was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial court’s findings
of fact that have support in the record. The trial court, not the
appellate court, is charged with the responsibilities of evaluating
credibility of the witness and 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 competent evidence of record,
we will affirm, “even if the record could also support an opposite
result.”
Id. (citation omitted).
With respect to Father’s reliance on the federal AFSA, this Court has
stated:
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[T]he Juvenile Act was amended in 1998 to conform to ASFA.
Furthermore, the 1998 amendments to the Juvenile Act, as
required by ASFA, place the focus of court proceedings on the
child. Safety, permanency, and the well-being of the child must
take precedence over all other considerations, including the rights
of the parents.
See In re M.S., 980 A.2d 612, 615 (Pa. Super. 2009).
This Court has explained:
Although a goal change to adoption is a step towards
termination of parental rights, it does not in fact terminate
parental rights. When the court allows [the agency] to change
the goal to adoption, it has decided “[the agency] has provided
adequate services to the parent but that he/she is nonetheless
incapable of caring for the child and that, therefore, adoption is
now the favored disposition.” Once the goal is changed to
adoption, [the agency] is not required to provide further services.
In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (citations omitted).
Sections 6351(f) and (f.1) of the Juvenile Act provide, in relevant 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.
(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.
(5) The likely date by which the placement goal for the
child might be achieved.
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(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
* * *
(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.
* * *
(10) If a sibling of a child has been removed from his
home and is in a different placement setting than the child,
whether reasonable efforts have been made to place the child
and the sibling of the child together or whether such joint
placement is contrary to the safety or well-being of the child
or sibling.
(11) If the child has a sibling, whether visitation of the
child with that sibling is occurring no less than twice a month,
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unless a finding is made that visitation is contrary to the
safety or well-being of the child or sibling.
* * *
(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:
* * *
(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.
42 Pa.C.S. § 6351(f)(1)-(6), (9)-(11); (f.1)(2).
With respect to Section 6351(f), this Court has explained:
The trial court must focus on the child and determine the goal with
reference to the child’s best interests, not those of the parents.
“Safety, permanency, and well-being of the child must take
precedence over all other considerations.” Further, at the review
hearing for a dependent child who has been removed from the
parental home, the court must consider the statutorily mandated
factors. “These statutory mandates clearly place the trial court’s
focus on the best interests of the child.”
In re S.B., 943 A.2d at 978 (citation omitted). Moreover, “the burden is on
the child welfare agency . . . to prove that a change in goal would be in the
child’s best interest.” In re R.I.S., 36 A.3d 567, 573 (Pa. 2011).
This Court recently reiterated:
[T]he policy underlying the Juvenile Act is to “prevent children
from languishing indefinitely in foster care, with its inherent lack
of permanency, normalcy, and long-term parental commitment.”
An agency is also not required to offer services indefinitely, where
a parent is unable to properly apply the instruction provided.
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However, an agency must redirect its efforts towards placing the
child in an adoptive home only after “the child welfare agency has
made reasonable efforts to return a foster child to his or her
biological parent, but those efforts have failed[.]”
In Interest of T.M.W., 232 A.3d 937, 947 (Pa. Super. 2020) (citations
omitted).
Finally, we note the following, in connection with Father’s claim “that
the lack of aggravated circumstances is significant.”11 See Father’s Brief at
11 (emphasis added). Section 6341(c.1) of the Juvenile Act provides that if
a trial court determines that a child is dependent, and aggravated
circumstances have been alleged by the county agency or by the child’s
attorney, the court must also determine whether aggravated circumstances
exist. 42 Pa.C.S. § 6341(c.1). If the court determines that aggravated
circumstances exist, the court must then consider whether reasonable efforts
should be made to reunify the child with their parent. Id.
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11 Father relies on the dissenting opinion in M.S., 980 A.2d 612, which
addresses the lack of a finding of aggravating circumstances in that case. See
Father’s Brief at 12. However, Father presents no argument why this Court
should be bound by or otherwise apply a dissenting opinion. In any event, we
note the issue in M.S. was whether the trial court erred in directing the initial
permanency goal to be adoption, rather than reunification, due to existence,
or not, of aggravated circumstances pursuant to 42 U.S.C. § 671(a)(15)(D)(i)
and 42 Pa.C.S. § 6342(c.1) and 6302. M.S., 980 A.2d at 614. This Court
held, on the facts before it, that “the initial permanency goal . . . need not be
set at reunification.” Id. at 615. In contrast, this appeal does not present
that issue.
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Instantly, the Agency did not allege any aggravated circumstances.
Nevertheless, by the time of the underlying permanency review hearing in
June of 2020, M.G. had been in placement for 26 months, and J.G., Jr., and
J.G. for 20 months. Pursuant to Section 6351(f)(9), the trial court was to
determine whether the Children have “been in placement for at least 15 of the
last 22 months or . . . that aggravated circumstances exist.” See 42 Pa.C.S.
§ 6351(f)(9) (emphasis added). Because the Juvenile Act conforms to the
ASFA, we conclude Father’s argument with respect to 42 U.S.C.
§ 671(a)(15)(D) is without merit.
In reviewing Father’s challenge to the trial court’s decision to change
the Children’s goals from reunification to adoption, we consider the testimonial
evidence presented at the June 16, 2020, permanent review hearing. See
also Trial Ct. Op. at 15–18 (summarizing same). First, with respect to
Father’s argument that the Agency failed to provide reasonable efforts to
reunify the Children with him, Agency Caseworker Carol Crouse testified that
reunification services were initiated in May of 2015. N.T. at 56. Caseworker
Crouse prepared a list of 19 services provided to Father, Mother, and/or the
Children, 17 of which were still in effect. Id. at 63. Caseworker Crouse
testified that, despite five years of services, Father “has not gained any . . .
parenting skills[,]” but both parents’ “perception is that they have done
everything that has been asked[, and] they have done it well.” Id. at 59.
She testified, “I professionally do not believe that [the Agency] has access to
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any other services that would assist this family any more than the services
that they have had.” Id. at 57.
Agency Caseworker Ashley Shaffer testified she worked with Father and
Mother for the past 25 months on parenting, decision-making, and
understanding the medical needs of the Children. N.T. at 5–6. She testified
as follows on direct examination:
[Agency’s counsel:] Quite simply, how has that been going?
[Caseworker Shaffer:] It has been going very poor[ly]. There has
been very minimal progress since I began services.
Q. Can you explain to me what that means; very poor, very
minimal progress?
A. The parents have not been able to implement the parenting
skills that I have been reviewing with them since May of 2018
during their visitation with their children. They still present very
egocentric. They’re more concerned about their own needs that
their children’s. They have not demonstrated any empathy
towards their children and their needs. They just worry about
themselves.
Q. Give me an example of them not being empathetic towards
[the Children].
A. For instance, recently [J.G., Jr., had] surgery regarding an
undescended testicle. They did not go to the doctor’s appointment
for the surgery, nor did they . . . even ask him how he was feeling
or about the surgery [at subsequent visitation]. There was
another occasion [J.G., Jr.,] had a doctor’s appointment. They
promised him they were going to go. He was looking for them.
They never showed up. When he called them that evening they
had friends over and said they would call him back. They never
called him back[,] and he was very upset that evening not
understanding why his parents didn’t care about him.
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Id. at 6–7. In addition, Caseworker Shaffer testified about Father’s and
Mother’s “lack of protective capacity[:]” “To this day [Father] and [Mother]
deny the physical abuse of [J.G.]. They call him a liar. They say that he made
it up. [Father] has said in front of me to [Mother], if it takes everything I
own, I will protect you. He called [J.G.] a liar and he continued to stand by
his wife.” Id. at 7.
On cross-examination by the Children’s attorney, Caseworker Shaffer
testified:
[Children’s counsel:] Is there anything you can think of that the
Agency did not do or could have done better which would have
resulted in a different determination [than changing the goal to
adoption]?
[Caseworker Shaffer:] No. It just appears that their limitations
and mental health continued to be a barrier to their greater
comprehension of the Agency’s concerns, and it doesn’t appear
that they can understand what they need to change, and I don’t
believe that will change.
N.T. at 15.
Indeed, Dennis Kashurba, the licensed psychologist who evaluated
Father, testified, to a reasonable degree of medical certainty, that Father “has
barely adequate intellectual ability to function in a primary parent role . . . if
he has continued intensive services of the sort that are currently in place.”
N.T. at 38, 40.
Further, Jeffrey Grove, a family advocate for the Bair Foundation,
testified that, since November of 2018, he has facilitated visitation between
Father, Mother, and the Children, and he works with Father and Mother on
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their parenting skills. Because of the COVID-19 pandemic, visitation occurred
virtually through Zoom for an unspecified period of time. N.T. at 27. Mr.
Grove testified that, through the Zoom calls, it was apparent Father and
Mother still did not implement the parenting skills he attempted to teach them.
Id. at 28. Specifically, Mr. Grove testified Father and Mother “focus more on
the negative [with regard to the Children’s behavior], than . . . what we have
taught them[, which is] to try and focus on the positive and move on from
there.” Id.
Based on the foregoing and the totality of the testimonial and
documentary evidence, we conclude the Agency undertook reasonable efforts
to reunify the Children with Father. Thus, Father’s claim in this regard fails.
At this juncture, we note the testimonial evidence reveals the Children,
ages 10, eight, and six at the time of the underlying hearing, have multiple
behavioral and educational needs. Dr. John Jubas, the court-appointed
educational decision-maker for the Children, testified, “All three of the
[C]hildren require an abundance of services within the school system.
Individual IEPs, [or] individual education program[s, are] in place for all three
children, as well as a behavior program.” N.T. at 47. J.G., Jr. attends a local
school district school; the youngest child, M.G. attends a Head Start program;
and J.G. attends a special school-district “school identified as the Alpha
Program.” Id. at 47. Dr. Jubas testified on direct examination:
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[Agency’s counsel:] With the services that are specifically in
regard to the [C]hildren’s education[,] have the [C]hildren
progressed since you began working with them[?]
[Dr. Jubas:] When the [C]hildren first came to the schools they
were not stable. When the [C]hildren now have been in a
controlled setting we have identified some learning patterns. We
have seen an abundance of gaps in their education because of
gaps that occurred prior to attending any kind of formal education.
. . . I use the word stable meaning that we’re at a point in our
education where we feel that we know where we need to start
[with the Children] and use the implement[ation] of tools to get
them there. But as far as any kind of progress, we have not
advanced in education as we wanted to for the grade levels.
Id. at 48. Finally, Dr. Jubas testified, in response to inquiry by the trial court
regarding the impact on the Children in the educational setting, if any, of
visitation with Father and Mother, that the Children’s teachers
find it is very hard to regroup and redirect the [C]hildren after a
visit. They also see some emotions where the visit is scheduled
and the [C]hildren know they are going somewhere that night. It
is a disruption. I don’t see [visitation] to be positive in any way
other than just to take some valuable time when the teachers
have to regroup the [C]hildren the next day.
Id. at 50.
Regarding the Children’s behavioral problems, Caseworker Crouse
testified that M.G., then age six, “has declining behaviors[:]”
[M.G.] is not yet potty-trained. He uses curse words[,] which he
does not learn from the foster family. He swears at everybody.
He is physically aggressive, which is quite concerning. And most
specifically, he is physically aggressive towards [J.G.], and [J.G.]
does not do a whole lot to defend himself. The only reason that
[J.G.] probably doesn’t sustain any injuries is because [M.G.] is
too little to inflict any.
N.T. at 52.
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Caseworker Crouse testified that J.G.’s “behaviors have gone downhill
as well. He has developed a lot of toileting issues, [including] urinating in the
home [in] places other than the toilet, defecating, and then that winds up all
over the bathroom. . . . He is extremely needy. He asks everybody, including
the foster parents, constantly if they love him, if they are going to try to help
him.” N.T. at 54.
With respect to J.G., Jr., then age 10, Caseworker Crouse testified that
“[h]is behaviors have [also] declined.” N.T. at 54. She testified that J.G., Jr.,
urinates on the floor and in his bed. He only recently learned how to tie his
shoes . . . . He is not able to formulate his own thoughts. . . . He sleepwalks.
He steals everything. It has come down to the point where he needs constant
supervision within the confines of the foster home.” Id. at 54–55.
Finally, we consider Father’s testimony at the June 16, 2020, hearing.
He stated his belief that “[a] lot of the testimony [was] wrong.” N.T. at 71.
Father stated he has learned from the services provided by the Agency, for
example, to play games on the floor with the children, and that he and the
Children have a connection during visitation. N.T. at 70-71. Father affirmed
his love for the Children and desire to be reunited with them. Id. at 72-74.
With respect to its decision to change the Children’s goals from
reunification to adoption, the trial court found:
[Father and Mother] do not appear to appreciate the realities
of their situation. In fact, their perception is that they have done
everything that [the] Agency has asked them to do to correct the
situation. To exacerbate the situation, [M]other 10 and Father11
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have criminal charges pending. After being involved with the
family for approximately five years, [Agency Caseworker Carol]
Crouse does not believe that [the] Agency has access to any other
services that would assist the family further. . . .
___________________________________________________
10 Mother has disorderly conduct charges, stemming from J.G.’s
physical abuse. . . . [N.T.] at 57.
11Father has endangering welfare of children charges pending.
Id. at 58.
___________________________________________________
While the [t]rial [c]ourt did not doubt . . . Father’s . . . love
for his children, based on the testimony, the [t]rial [c]ourt
believes the parents lack the capacity to be able to provide the
Minor Children with their most basic needs and believes that
adopting the Agency’s recommendation of adoption is [i]n the best
interest of the Minor Children. Further, based on the testimony of
Shaffer, Grove, Dr. Jubas, and Crouse, the [t]rial [c]ourt believed
that at this moment visitations are detrimental to the [C]hildren’s
well-being. . . .
Here, Minor Children have been in the care and custody of the
Agency for a significant period of time ([since] April 2018 for M.G.
and October 2018 for J.G., Jr., and J.G.). The Agency has an
extensive history of services with the family, but parents have
made minimal progress to alleviate conditions necessitating the
original placement. This [t]rial [c]ourt simply cannot continue to
put Minor Children’s [lives] on hold hoping Father will summon his
ability to handle the responsibilities of parenting. Furthermore,
based on Kashurba’s testimony, Father does not have the mental
capacity to step-in [sic] the role of primary parent. This [t]rial
[c]ourt also cannot keep Minor Children in a perpetual foster care
limbo, especially in light of the evidence that it is unlikely that
Father will be able to meet the Agency’s requirements and achieve
reunification. As [the] Agency established, future services will not
accomplish any progression toward reunification. Here the
Agency has fulfilled its mandate, and it is time for the Minor
Children to achieve the permanent and stable family life they
deserve.
Trial Ct. Op. at 19–20.
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We defer to the trial court’s assessment of the witnesses’ testimony.
See R.M.G., 997 A.2d at 345. Upon review, the testimonial evidence supports
the trial court’s factual findings. See id. Based on the foregoing discussion
and the totality of the record evidence, we conclude the trial court did not
abuse its discretion in changing the Children’s permanency goals to adoption.
Accordingly, we affirm the orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2021
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