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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: T.C., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: L.F.
No. 1447 MDA 2016
Appeal from the Order Entered August 18, 2016
In the Court of Common Pleas of Cumberland County
Juvenile Division at No(s): CP-21-DP-0000202-2012
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 03, 2017
L.F. (“Father”) appeals from the order entered on August 18, 2016,
continuing the placement of his minor daughter, T.C. (“Child”), in foster care
upon a finding of aggravated circumstances and directing that no
reunification efforts should be made. Father also challenges the trial court’s
order entered on September 2, 2016, clarifying that he would not be
permitted visitation with Child. We affirm.
Child was born in December of 2012 to Father and T.G. (“Mother”).1
Cumberland County Children and Youth Services (“CYS”) first became
involved with Child immediately after her birth, due to concerns that Mother
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*
Retired Senior Judge assigned to the Superior Court.
1
The trial court terminated Mother’s parental rights on May 6, 2016, and
she is not involved with this appeal. N.T., 7/22/16, at 5.
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tested positive for marijuana and was homeless. Master’s Recommendation
for Adjudication and Disposition–Child Dependent, 1/7/13, at 1 (Findings of
Fact). CYS filed a dependency petition with respect to Child on December
17, 2012, and the trial court adjudicated Child dependent by order entered
January 7, 2013. Mother complied with Child’s permanency plan, and the
court terminated Child’s dependency by order entered October 25, 2013.
Father was not involved in Child’s life during this time, and Mother refused to
provide CYS with Father’s identity. Id.
The trial court removed Child from Mother’s care for a second time on
January 9, 2015, after Mother’s paramour, J.G., overdosed on heroin in the
presence of Child and her sister, C.G. Master’s Recommendation for
Adjudication and Disposition–Child Dependent, 1/16/15, at 1 (Findings of
Fact). Following these events, Mother and J.G. were incarcerated and
charged with endangering the welfare of children. Id. CYS filed a
dependency petition on January 13, 2015, and the court adjudicated Child
dependent by order entered January 16, 2015.
Mother first provided CYS with the name of a possible father for Child
in approximately June of 2015. Master’s Recommendation–Permanency
Review, 6/29/15, at 1 (Permanency Plan-Compliance). However, Mother
misidentified Child’s father as a man by the name of T.B. CYS did not
discover Father’s true identity until May of 2016. N.T., 7/22/16, at 12.
Specifically, CYS contacted the domestic relations office regarding T.B., only
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to discover that Father had already been confirmed as Child’s father through
genetic testing in April of 2013. Id. at 6.
On June 30, 2016, CYS filed a motion for finding of aggravated
circumstances on the basis that Father failed to maintain contact with Child
for six months. The trial court conducted an aggravated-circumstances
hearing on July 22, 2016. Following the hearing, on July 25, 2016, the court
entered an order directing that no visits should occur between Father and
Child because visits posed a grave threat of harm. The court indicated that
it would address this issue again in its aggravated-circumstances order.
On August 18, 2016, the court entered an order finding aggravated
circumstances as to Father and directing that no efforts should be made to
reunify him with Child. However, the court failed to address visitation. CYS
filed a motion on September 1, 2016, in which it asked the court to clarify
whether Father should receive visits with Child. The court entered an order
on September 2, 2016, explaining that Father should not receive visits.
Father timely filed a notice of appeal on September 6, 2016, along with a
concise statement of errors complained of on appeal.
Father now raises four issues for our review:
1. Whether the [trial court] erred as a matter of law and abused
its discretion in finding aggravated circumstances when [F]ather
was ready, willing and able to parent the child and provide for
her needs?
2. Whether the [trial court] erred as a matter of law in finding
that aggravated circumstances exist by determining that Father
failed to maintain substantial and continuing contact with the
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child for six months when the evidence presented at trial
supported that Father had made attempts to have contact with
the child?
3. Whether the [trial court] erred as a matter of law in finding
that aggravated circumstances existed despite that [sic] fact
that Father was not notified by [CYS] that the child was
dependent until June of 2016, although the child had been found
dependent and in placement for over a year and Father’s
paternity and whereabouts should have been easily ascertained
as he had participated in a paternity test for the Cumberland
County Domestic Relations Office?
4. Whether the [trial court] erred as a matter of law and abused
its discretion in denying Father visitation of the child despite
Father’s requests?
Father’s Brief at 4.2
We consider Father’s claims mindful of our well-settled standard of
review:
[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 A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (quoting In re R.J.T., 9
A.3d 1179, 1190 (Pa. 2010)).
Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.
§§ 6301–6375. The Juvenile Act provides that a child may be adjudicated
dependent if he or she meets the requirements of one of ten definitions
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2
Father’s statement of questions involved does not accurately represent the
arguments presented in his brief. We detail the actual substance of Father’s
arguments, infra.
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listed at 42 Pa.C.S. § 6302. If a juvenile court determines that a child is
dependent, and aggravated circumstances have been alleged by either the
county agency or by the child’s attorney, the court must also determine if
aggravated circumstances exist. 42 Pa.C.S. § 6341(c.1). If the court
determines that aggravated circumstances do exist, the court must then
consider whether reasonable efforts should be made to reunify the child with
his or her parent. Id. Following a finding of aggravated circumstances, a
court may end reasonable efforts at its discretion. In re L.V., 127 A.3d
831, 839 (Pa. Super. 2015) (citation omitted).
The Juvenile Act defines aggravated circumstances, in relevant part, as
follows:
“Aggravated circumstances.” Any of the following
circumstances:
(1) The child is in the custody of a county agency and either:
* * *
(ii) the identity or whereabouts of the parents is
known and the parents have failed to maintain
substantial and continuing contact with the child for
a period of six months.
42 Pa.C.S. § 6302(1)(ii).
In applying section 6302 to the facts of this case, we stress that
parents have an affirmative duty to maintain a place of importance in their
children’s lives:
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
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to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
“This affirmative duty . . . requires continuing interest in the child and a
genuine effort to maintain communication and association with the child.”
Id. (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)).
In his first issue on appeal, Father argues that the trial court erred by
finding aggravated circumstances because CYS failed to provide him with
reasonable reunification efforts. Father’s Brief at 10-11. Father waived this
issue by failing to include it in his concise statement. Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (citations
omitted) (“[A]ny issue not raised in a statement of matters complained of on
appeal is deemed waived.”).3
Father’s second and third issues are interrelated; therefore, we
address them together. Father argues that the trial court erred by finding
aggravated circumstances because he made a genuine effort to maintain a
relationship with Child. Father’s Brief at 12-14. Specifically, Father argues
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3
Even if Father had not waived this issue, he would not be entitled to relief.
The Juvenile Act does not require that parents be provided with reasonable
reunification efforts as a prerequisite for a finding of aggravated
circumstances. 42 Pa.C.S. § 6302; 42 Pa.C.S. § 6341. Indeed, the primary
purpose of an aggravated-circumstances finding is to relieve CYS of its
normal obligation to provide those efforts. In re L.V., 127 A.3d at 839.
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that he attempted to obtain legal counsel in order to file for custody of Child
and that he attempted to contact Mother regarding Child via text messages
and Facebook, but she did not respond. Id.4
In its opinion, the trial court found that Father has not seen Child for
at least one year and has made minimal efforts to contact Child. Trial Court
Opinion, 11/8/16, at 9-11. The court emphasized that Father had an
affirmative duty to maintain a relationship with Child, but, at best, Father
acted passively by placing himself on a waitlist for legal counsel and by
sending Mother Facebook messages. Id. The court explained that it found
Father’s insistence that he had been actively pursuing custody of Child
disingenuous. Id. at 10. Thus, the court reasoned, Father failed to
maintain substantial and continuing contact with Child pursuant to 42
Pa.C.S. § 6302. Id. at 11.
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4
Father also argues in his third issue that the trial court interpreted the
Juvenile Act incorrectly because, “[a]ccording to a strict reading of the
statute, Father should have been given six months from the date of [sic] his
identity and whereabouts were known and that he was given notification
prior to the finding of aggravated circumstances.” Father’s Brief at 13. We
disagree. The plain language of the definition of aggravated circumstances
set forth in 42 Pa.C.S. § 6302 requires only that the court be aware of
Father’s identity, and that Father fail to maintain substantial and continuing
contact with Child for six months. Nothing in the definition of aggravated
circumstances suggests that it was intended to apply only if the court had
been aware of Father’s identity for six months, or only if Father failed to
maintain contact with Child for six months after being notified that she was
in foster care.
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Our review of the record supports the trial court’s conclusions. During
the aggravated-circumstances hearing, CYS presented the testimony of
caseworker, Amanda Sigrist. Ms. Sigrist testified that she spoke with Father
for the first time on June 13, 2016. N.T., 7/22/16, at 7. Father initially
claimed to Ms. Sigrist that he last saw Child “6 months ago.” Id. at 8.
However, Child would have already been in CYS custody at that time. Id.
When pressed on this issue, Father claimed that he last saw Child in the Fall
of 2014 at a Target. Id. Concerning his efforts at maintaining contact with
Child, Father insisted that he was in the process of obtaining legal counsel so
that he could file for custody. Id. at 9. Father further asserted that he had
been sending Facebook messages to Mother every day. Id. at 7.
The trial court also heard testimony from Father. Father testified that
he saw Child about “once or twice a week” for the first “couple months” of
her life, until Mother moved into a homeless shelter. N.T., 7/22/16, at 20.
Father then saw Child “approximately every other day[.]” Id. According to
Father, he continued to see Child regularly until “about a year ago[.]” Id.
Father explained, “I was texting her mother and she wasn’t replying. I
didn’t know her mother’s side of the family so I never did contact them.”
Id. Father claimed that he went to the courthouse in 2013, hoping to file for
custody of Child, but he was informed he needed an attorney to file for
custody. Id. at 21. Father asserted that he signed up for free legal counsel,
but “I just got the letter because they said it was a 1 or 2 year waiting list.”
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Id. Father further claimed that he attempted to maintain contact with Child
by sending Mother a Facebook message every day, but she stopped
responding “awhile ago.” Id. at 24, 30.
Thus, the record reveals that Father has repeatedly changed his story
regarding when he most recently saw Child. Father initially informed
Ms. Sigrist that he saw Child “6 months ago,” then told her that he saw Child
in the Fall of 2014. He then testified during the aggravated-circumstances
hearing that he last saw Child about one year ago, which would have been in
approximately July of 2015. Father’s claims concerning his contact with
Child have been inconsistent and implausible, and the trial court was well
within its discretion to question the credibility of Father’s testimony.
Further, even accepting Father’s testimony as true, we agree with the court
that merely “signing up” for free legal counsel and sending Facebook
messages are not sufficient to demonstrate that Father made sincere efforts
to maintain substantial and continuing contact with Child.
Finally, Father argues in his fourth issue that the trial court erred by
denying him visitation with Child. Father’s Brief at 14-16. Father contends
that he does not pose a threat of harm to Child, and that it is “hard to say”
whether denying him visits with Child would be in Child’s best interest,
“without even attempting a meeting[.]” Id. at 15. We have stated:
[I]n dependency cases such as this, the standard against which
visitation is measured also depends upon the goal mandated in
the family service plan. Where, as here, reunification still
remains the goal of the family service plan, visitation will not be
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denied or reduced unless it poses a grave threat. If, however,
the goal is no longer reunification of the family, then visitation
may be limited or denied if it is in the best interests of the child
or children. The “best interests” standard, in this context, is less
protective of parents’ visitation rights than the “grave threat”
standard.
In re L.V., 127 A.3d at 839 (quoting In re C.J., 729 A.2d 89, 95 (Pa.
Super. 1999)).
In its opinion, the trial court explained that it denied Father visits with
Child based on its conclusion that visits would pose a grave threat of harm.
Trial Court Opinion, 11/8/16, at 15. The court noted that it should have
applied a best-interest standard, rather than a grave-threat standard,
because Child’s permanency goal is adoption. Id. Nonetheless, the court
concluded that denying visits was in Child’s best interest. Id. The court
underscored the testimony of Child’s therapist, Ashten Trimble. Id. at 14-
15.
Ms. Trimble testified during the aggravated circumstances hearing that
she has been providing Child with play therapy for about one year. N.T.,
7/22/16, at 41. Ms. Trimble explained that Child previously was visiting with
Mother and that Child engaged in inappropriate behaviors during therapy
while those visits were continuing. Id. These behaviors included wetting
herself and engaging in “aggressive play.” Id. Child’s behaviors improved
for about one month after Mother’s parental rights were terminated in May
of 2016. Id. at 42, 45. However, Ms. Trimble reported that Child’s
behaviors began to deteriorate once again after Child’s foster parents
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informed her that she may visit with Father. Id. 41-43. Ms. Trimble noted
that Child “verbalizes fear and hesitation in meeting [Father].” Id. at 43.
Child reported to Ms. Trimble that she has no recollection of Father and
wants to stay with her foster parents. Id. at 44. Ms. Trimble opined that if
Child visits with Father it likely will cause her to regress. Id. at 47.
Ms. Trimble explained, “[Child] already has mass anxiety. So I believe that
we will have to work on the anxiety and the fear and anger coming back as
we did when she was seeing [Mother] in visits.” Id.
We discern no abuse of discretion by the trial court. Our review of the
record reveals that the trial court changed Child’s permanency goal to
adoption by order entered May 13, 2016. The court was therefore permitted
to deny visits with Father if it determined that visits would be contrary to
Child’s best interest. Here, the record amply supports that determination, as
the prospect of having to visit with Father has already caused Child
considerable emotional distress. We agree with the court that Child should
not be subjected to further trauma by being forced to visit with Father.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by finding aggravated circumstances with respect to Father and
by denying visitation. We therefore affirm the trial court’s August 18, 2016
and September 2, 2016 orders.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2017
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In The Int. of: T.C., a minor Appeal of: L.F.
Combined Opinion