J-S53045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

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

PENNSYLVANIA 

 

APPEAL OF: C.P. 

 No. 843 WDA 2014 

Appeal from the Order April 10, 2014

in the Court of Common Pleas of Indiana County 

Civil Division at No.: CP-32-DP-45-2012

 

BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.* 

MEMORANDUM BY PLATT, J.: FILED OCTOBER 07, 2014 

C.P. (“Mother”), the mother of the subject dependent child, A.K. 

(“Child”), born in July of 2000, appeals from the permanency review order 

dated and entered on April 10, 2014, in the Indiana County Court of 

Common Pleas, Juvenile Court Division, changing Child’s permanency 

placement goal from reunification to Permanent Legal Custody (“PLC”),1

pursuant to Section 6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). In 

its order, the trial court further directed that legal and physical custody of 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 PLC is a placement option under the Juvenile Act that places custody of a 

dependent child in a custodian, yet does not terminate the parents’ parental 

rights. See In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004). In such a 

scenario, the parents may still have visitation with their child if deemed 

appropriate by the trial court. See id. 
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Child shall remain with the Indiana County Children and Youth Services 

Agency (“CYS”), and that Child shall remain in foster care.2

 We affirm. 

 The trial court related the relevant facts and procedural history of this 

case as follows: 

[Mother and Father are the parents of Child]. 

On August 23, 2012, Father filed a Petition for Emergency 

Custody []. Father requested custody based on Mother’s 

incarceration for alcohol/drug related offenses. At the time, 

Child was in the care of Mother’s boyfriend, [T.F.] (“Boyfriend”). 

Father’s petition alleged that Boyfriend had enumerated charges 

and/or convictions under 23 Pa.C.S.A. § 5329. A proceeding 

occurred on August 29, 2012. A representative of [CYS] was 

present[,] as [CYS] was providing general protective services 

because of truancy. As a result of the proceeding, it was 

determined that Father also had an enumerated conviction from 

the [S]tate of Michigan, and due to Mother’s incarceration, and 

Father and Boyfriend’s enumerated convictions, custody was 

temporarily awarded to the maternal grandfather, [D.P. 

(“Maternal Grandfather”)], and the maternal aunt, [C.P. 

(“Maternal Aunt”)]. [CYS] assisted the [trial c]ourt in arranging 

this placement. 

A continued special relief hearing occurred on October 12, 

2012. Mother, who had been released from jail, appeared with 

Boyfriend. Father also appeared. Mother, Boyfriend and Father 

were not placement options because of their enumerated

convictions. [M]aternal [G]randfather had recently died. 

Concerns were raised about [M]aternal [A]unt’s care of the Child 

and she no longer wanted the Child in her custody. At the 

conclusion of the proceeding, Mother and Father signed a

Voluntary Placement Agreement for foster care and the [trial 

c]ourt transferred jurisdiction of the custody case to juvenile 

court. A Dependency Petition was filed by [CYS] on October 23, 

2012. Grounds under 42 Pa.C.S.A. § 6302(a)(1) were alleged. 

____________________________________________ 

2 A.K. (“Father”) has not appealed the order changing Child’s permanency 

placement goal to PLC, nor is he a party to this appeal. 
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An Adjudication and Disposition hearing occurred on 

November 8, 2012 and the Child was placed in the temporary 

legal custody of [CYS]. Placement was in foster care. The 

current permanent placement goal was return to parent. The 

Initial Permanency Review occurred on February 7, 2013. 

Mother was found to be in full compliance with the permanency 

plan and completed her initial treatment group at the Open 

Door. She was referred to a relapse prevention group. Mother’s 

progress was moderate because she tested positive for 

Oxycontin on January 30, 2013. Boyfriend also tested positive 

for Oxycontin (which he was prescribed) and cocaine. 

Mother continued with full compliance at the Permanency 

Review proceeding on June 27, 2013. However, her progress 

remained at the moderate level due to another positive drug test 

on February 7, 2013. At the September 26, 2013 Permanency 

Review hearing, Mother was in full compliance. She regularly 

attended the Open Door and began working with Justice Works, 

a human service agency. Her progress was rated as moderate 

because she had only recently started the program with Justice 

Works. Mother again achieved full compliance at the January 

16, 2014 review. She completed intensive outpatient treatment 

on January 9, 2014 and started relapse prevention on January 

14, 2014. Her progress was determined to be full because she 

passed all her drug screens and was consistent in working with 

Justice Works. 

[CYS] filed a Motion for Permanency Review/Change of

Goal on March 24, 2014. The request for change of goal was 

based on credible information that [CYS] received about the sale 

of drugs at Mother’s home, which she shares with Boyfriend. 

During a meeting with [CYS], which occurred on January 30, 

2014, Mother’s explanation for what occurred did not match 

other information received by [CYS]. Father was not a 

placement option because of a change in his living 

circumstances. As a result, [CYS] requested a goal change to 

[PLC]. Adoption was ruled out because of the Child’s close 

relationship with her Mother. 

A Permanency Review/Change of Goal hearing occurred on

April 10, 2014. Present was the [CYS] Solicitor, Mother and her 

court appointed counsel, Father, who participated by phone from 

Michigan, Father’s court appointed counsel, and the Guardian ad 

Litem. The Child was interviewed in camera. Testimony was 
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received from [Mother, Mother’s former husband, W.L. (“ExHusband”),[3] CYS caseworker Joseph Petruna, and Boyfriend’s 

cousin, R.B. (“Boyfriend’s Cousin”)]. Following testimony, the 

[trial c]ourt approved the change of goal. 

(Trial Court Opinion, 6/10/14, at 1-4 (footnote omitted)). 

 On May 13, 2014, Mother simultaneously filed a timely Notice of 

Appeal and a Concise Statement of Errors Complained of on Appeal, 

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

 On appeal, Mother raises two questions for our review:

1. Did the trial court abuse its discretion by failing to 

give proper weight to Mother’s testimony?

2. Did the trial court abuse its discretion by granting a 

change of goal where Mother had been in full compliance 

with the permanency plan and where there was no 

evidence that Mother attempted to sell drugs? 

(Mother’s Brief at 6).

 Our standard of review for an order granting a petition to change a 

dependent child’s permanency placement goal to PLC is abuse of discretion. 

When reviewing such a decision[,] we are bound by the 

facts as found by the trial court unless they are not supported in 

the record. Furthermore, in a change of goal proceeding, the 

trial court must focus on the child and determine the goal in 

accordance with the child’s best interest and not those of his or 

her parents. 

At each review hearing concerning a child who has been 

adjudicated dependent and removed from the parental home, 

____________________________________________ 

3 Ex-Husband is the father of Mother’s daughter, K.L. (“Daughter”), who is 

18 years old, and Mother’s son, M.L., who is 20 years old. (See N.T. 

Hearing, 4/10/14, at 5). When Mother and Ex-Husband divorced in 1997, 

Ex-Husband petitioned for and was granted primary physical and legal 

custody of their two children. (See id. at 6). 
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the trial court must consider: the continuing necessity for and 

appropriateness of the placement; the extent of compliance with 

the service plan developed for the child; the extent of progress 

made towards alleviating the circumstances which necessitated 

the original placement; the appropriateness and feasibility of the 

current placement goal for the child; and, a likely date by which 

the goal for the child might be achieved. 

These statutory mandates clearly place the trial court’s 

focus on the best interests of the child. 

In addition[, a]lthough bound by the facts as found by the 

trial court and supported by the record, we are not bound by the 

trial court’s inferences, deductions, and conclusions therefrom; 

we must exercise our independent judgment in reviewing the 

court’s determination, as opposed to its findings of fact, and 

must order whatever right and justice dictate. We review for an 

abuse of discretion. Our scope of review, accordingly, is of the 

broadest possible nature. It is this Court’s responsibility to 

ensure that the record represents a comprehensive inquiry and 

that the hearing judge has applied the appropriate legal 

principles to that record. Nevertheless, we accord great weight 

to the court’s fact-finding function because the court is in the 

best position to observe and rule on the credibility of the parties 

and the witnesses. 

In re H.V., 37 A.3d 588, 593 (Pa. Super. 2012) (citation omitted). 

 Section 6351(f) of the Juvenile Act prescribes the pertinent inquiries 

for the reviewing court as follows: 

(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 

child. 
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(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. 

(6) Whether the child is safe. 

42 Pa.C.S.A. § 6351(f)(1)-(6). 

 Additionally, Section 6351(f.1)(3) of the Juvenile Act authorizes the 

trial court to grant a goal of PLC if the trial court decides that neither 

reunification nor adoption “is best suited to the child’s safety, protection and 

physical, mental and moral welfare.” 42 Pa.C.S.A. § 6351(f.1)(3). In a 

change of goal proceeding, the best interests of the child, and not the 

interests of the parent, must guide the trial court, and the parent’s rights are 

secondary. See In re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007). In 

contrast, in a termination of parental rights proceeding, the focus is on the 

conduct of the parents under 23 Pa.C.S.A. § 2511. See In re M.B., 674 

A.2d 702, 705 (Pa. Super. 1996), appeal denied, 688 A.2d 172 (Pa. 1997). 

Finally, the court also must consider the bond between the child and his 

parents, foster parents, and siblings. See In re H.V., supra at 594-95.

 In her first issue on appeal, Mother contends that the trial court 

committed an abuse of discretion in failing to accord proper weight to her 

testimony. (See Mother’s Brief, at 11). We disagree.

It is well established that “[t]he trial court, not the appellate court, is 

charged with the responsibilities of evaluating credibility of the witnesses 

and resolving any conflicts in the testimony. In carrying out these 
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responsibilities, the trial court is free to believe all, part, or none of the 

evidence.” In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006) 

(internal citations omitted). So long as the trial court’s findings are 

supported by competent evidence of record, this Court will not revisit the 

trial court’s determinations regarding the credibility of witnesses. See In re 

K.C., 903 A.2d 12, 16 (Pa. Super. 2006). 

 In its Rule 1925(a) opinion, the trial court explained its reasoning for 

according less weight to Mother’s testimony than that of the other witnesses, 

as follows: 

 During the April 10, 2014 hearing[,] the [trial c]ourt heard 

testimony from [Ex-Husband], [CYS] caseworker[] Joseph

Petruna, Mother, and Boyfriend’s [C]ousin . . . . 

. . . [Ex-Husband] testified that[,] on January 9, 2014, he 

intercepted a text message from Mother to [Daughter]. The text 

message stated: “Hey Tom’s guy brought over two new kinds of 

stuff he got sent from Colorado[,] purple halo and og [k]ush.” 

[Ex-Husband] understood “purple halo” and “og [c]ush . . .” to 

be drug related names of strains of marijuana. [Ex-Husband] 

spoke to [Daughter] and she confirmed that Mother and 

Boyfriend were using and selling drugs. 

[CYS] submitted the [screenshot] of Mother’s text

message to [Daughter] into evidence. Phone records showed 

that the text message was sent to [Daughter] at 7:53 p.m. and 

that [Ex-Husband] called Mother at 8:45 p.m. to confront her 

and Boyfriend about what he perceived to be an offer of drugs to 

[Daughter]. [Ex-Husband] stated that Mother denied that she 

was using or in possession of any drugs and told [Ex-Husband] 

that [Daughter] used marijuana. [Ex-Husband] informed Mother 

of his intention to contact his attorney and the District Attorney’s 

office. . . . 

The [trial c]ourt finds [Ex-Husband’s] testimony regarding 

the text message, the implications of the text message and the 

conversation with Mother credible. While [Ex-Husband] was 

noticeably angered, even at the hearing, by Mother’s actions, his 
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testimony was supported through a [screenshot] of the text 

message as well as phone records, which were entered into 

evidence by [CYS]. [Ex-Husband’s] testimony was also 

supported by evidence that he did consult his attorney for advice 

on how to keep Mother from interacting with [Daughter]. In 

addition, contact was made with local law enforcement and 

[CYS]. 

 Next, the [trial c]ourt heard testimony from [CYS 

caseworker] Joseph Petruna . . . . 

Following [Ex-Husband’s] report, [CYS] conducted an 

investigation and scheduled a meeting with Mother, Boyfriend 

and Boyfriend’s brother on January 30, 2014. At the meeting[,] 

Mother offered an explanation for the text message. She 

asserted that [Daughter] is part of her support system and she 

wanted to share a success with her. According to Mr. Petruna, 

Mother characterized the incident as “somebody came by to

peddle this stuff and she responded by showing him out and it 

was a strength of her recovery.” Mother told Mr. Petruna that 

the text message to [Daughter] was not complete and that she 

was prevented by [Ex-Husband’s] phone call from sending the 

second part of the message. [CYS] reviewed phone records 

provided by [Ex-Husband]. The records establish that the text 

was sent at 7:53 p.m. [Ex-Husband’s] phone call did not occur 

until 8:45 p.m., 52 minutes later. 

 Mr. Petruna researched Purple Halo and Og Kush and 

confirmed that both are types of marijuana. . . . Mr. Petruna 

confirmed that a subsequent search of Mother’s residence 

produced no illegal substances and that charges have not been 

filed against Mother or Boyfriend. After meeting with Mother, 

[CYS] continued to have safety concerns related to Mother’s 

activities and judgment, even though Mother, who was being 

tested regularly by the Open Door, had not had a positive drug 

screen since February 2013. 

Mother’s testimony repeated what Mr. Petruna reported as 

her explanation at the January 30 meeting. Mother also testified 

as to her year of sobriety and pride in that accomplishment. 

According to Mother, “that was the first time that I have actually 

encountered drugs right in front of my face and not even [had] 

an inkling to do them.” Mother wanted an acknowledgment of 

this accomplishment. Mother described [Daughter] as an 
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integral part of her support system. She said she celebrated 

recovery milestones with [Daughter]. Mother asserts that a 

phone call from [Boyfriend’s Cousin] prevented her from sending 

a complete text message to [Daughter]. According to Mother[,] 

she was also speaking to another daughter [at the time]. 

Mother is not clear on the exact sequence[] because “it was such 

a mess with just all that going on all at the same time.” With 

the help of Justice Works’ staff, Mother was able to retrieve 

phone records to establish a chronology. Significantly, Mother 

did not offer these records into evidence to explain the 52 

minute lapse between the alleged incomplete text message to 

[Daughter] and [Ex-Husband’s] phone call. Also, although 

Mother describes [Daughter] as being an important person in her 

support system, [Daughter] did not appear and testify on 

Mother’s behalf. During her testimony, Mother was reluctant to 

identify “Tom’s guy” and had to be directed by the [trial c]ourt to

respond. She claimed to only know this person’s first name. 

Mother adamantly denied that she told [Ex-Husband] that 

[Daughter] smoked [marijuana]. In response to a question from 

the Guardian [A]d Litem, Mother explained that she shared the 

names of the marijuana in the text to [Daughter] because she 

thought they were “amusing and strange.”

* * * 

The [trial c]ourt gives less weight to Mother’s testimony 

than to the other witnesses. In reviewing the testimony of 

Mother, the [trial c]ourt does not find her explanation for the 

text message and events that transpired credible. A plain 

reading of the text message is that Mother is offering marijuana 

to [Daughter]. Her explicit mention of Purple Halo and OG Kush 

informed [Daughter] that the “new kinds of stuff he got sent 

from Colorado” was marijuana. The [trial c]ourt also believes 

that Mother’s reference to “Tom’s guy” in the present tense can 

be plainly read as a transactional and an on-going relationship 

between the Boyfriend and his supplier. While a search of 

Mother’s residence yielded no illicit substances, this search 

occurred after Mother was told by [Ex-Husband] that he would 

contact law enforcement. 

 The [trial c]ourt believes it is entirely reasonable to find 

Mother less credible than the other witnesses. Mother had no 

sufficient explanation for why she did not complete the text 

message to [Daughter] in the 52 minutes that elapsed from the 
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time of the text until [Ex-Husband’s] phone call. Mother could 

have provided substantiating evidence, such as phone records, 

or testimony from [Daughter], but failed to do so. [Daughter’s] 

absence was especially glaring, since Mother considers her to be 

a crucial support person. As previously mentioned, a plain 

interpretation of the text points to a transactional relationship 

between Boyfriend and the person who came to the residence on 

January 9th. The text reads like an advertisement, mentioning, 

“new kinds of stuff”, “from Colorado”, and highlights the drug 

names. If it had truly been Mother’s intent to demonstrate her 

commitment to sobriety, then the message should have 

conveyed the availability of drugs and a refusal to use. Instead, 

Mother’s text reads as an offer of illicit drugs to her [Daughter], 

and it is rational to assume that such poor judgment on Mother’s 

part establishes that in the 15 months that the Child has been in 

placement, Mother has not progressed to provide the Child with 

proper parental control and care. 

(Trial Ct. Op., at 9-16 (citations omitted)). 

 We conclude that the trial court’s findings are based on competent 

evidence in the record and, thus, reject Mother’s argument, which would 

require this Court to revisit and essentially reverse the trial court in its 

credibility determinations. Accordingly, we discern no abuse of discretion on 

this issue. 

 In her second issue on appeal, Mother contends that the trial court 

committed an abuse of discretion in granting CYS’s change of goal petition. 

(See Mother’s Brief, at 11). Mother asserts that she consistently maintained 

full compliance with the permanency plan and points to the trial court’s 

recognition of such in its opinion where it states, “there is no dispute that 

Mother was in full compliance with the permanency plan at each of her 

permanency review hearings[.]” (Id. at 15 (quoting Trial Ct. Op., at 18)). 

As further support, Mother notes, “despite the trial court’s finding that CYS 

was having trouble getting Mother to schedule a drug test in February 

[2014], Mother testified that she was continuing to be tested at [t]he Open 
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Door, and the caseworker testified that as far as he was aware, [t]he Open 

Door had not received a positive drug screen since February 2013.” (Id.). 

In addition, Mother argues that her text message to Daughter was 

insufficient evidence to support the trial court’s decision to minimize 

Mother’s progress towards reunification in light of the fact that a subsequent 

search of her residence produced no illegal substances and did not result in 

criminal charges being filed against her. (See id. at 16-17). Ultimately, it is 

Mother’s contention that the trial court committed an abuse of discretion in 

changing Child’s permanency placement goal from reunification to PLC given 

Mother’s asserted full compliance with the permanency plan in conjunction 

with “[CYS’s failure] to produce any definitive evidence that Mother was 

engaged in an illegal activity.” (Id. at 17). We disagree. 

 In its opinion, the trial court explained the basis for its determination 

that Child’s best interest necessitated that the permanency placement goal 

be changed from reunification to PLC, as follows: 

[W]hile [Mother] has consistently maintained full compliance 

[with the permanency plan], she has not progressed sufficiently 

during [C]hild’s 15 months in placement. Mother had positive 

drug tests on January 30, 2013 and February 7, 2013. 

Boyfriend, who Mother resides with, also tested positive for 

cocaine during this time. While Mother achieved full progress at 

the January 16, 2014 hearing, this determination was made 

without consideration of the January 9th incident. Mother’s 

progress at the April 10, 2014 hearing was downgraded to 

minimal because of the safety risk posed by her actions and poor 

judgment. 

 As in In re S.B., 943 A.2d 973, 983 (Pa. Super. 2008), 

where the Court determined that although the natural parents 

had remained in full compliance with the permanency plan, it 

was still in the best interest of the child to grant a change of goal 

from reunification to adoption. In the instant case, Mother has 
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complied with the permanency plan, but has made insufficient 

progress to alleviate the issues that necessitated the original 

placement. Progress is the salient issue. In spite of Mother’s 

involvement in services and treatment, she has had two positive 

drug tests, illicit drug activity at her residence, and

demonstrated poor judgment. Following the January 16th 

[permanency review hearing], [] Mother did not respond to 

contacts from [CYS]. While in placement, the Child has achieved 

stability and academic success. [Child] is developing a 

relationship with her Father and expressed her wish to Father to 

remain with her foster family should she be unable to return to 

Mother. The [trial c]ourt has determined . . . 

. . . that neither reunification nor adoption are appropriate goals 

for the Child at this time. . . . Mother has been unable to 

remedy the issues present at dependency to the standard that 

would allow for the health and safety of the Child. [PLC] is the 

appropriate goal to assure the [C]hild’s safety, protection and 

physical, mental and moral welfare[.] [C]hild has flourished in 

placement. [Child’s] grades and [school] attendance have 

improved and she has expressed a desire to remain with her 

foster parents, while continuing to visit and maintain a 

relationship with Mother. As Mother has demonstrated

continued poor judgment and compelling, credible evidence of 

continued illegal activity in the home was presented to the [trial 

c]ourt, the [trial c]ourt finds that it is in the best interest of the 

Child to change the permanency goal from reunification to [PLC]. 

(Trial Ct. Op., at 18-20 (citations omitted)). 

 We find that there is competent evidence in the record to support the 

trial court’s conclusion that, despite her substantial compliance with the 

permanency plan, Mother made insufficient progress toward alleviating the 

circumstances which necessitated Child’s original placement. Accordingly, 

we agree with the trial court’s determination that Child’s best interests were 

served by changing Child’s permanency placement goal from reunification to 

PLC and we discern no abuse of discretion on the part of the trial court in so 

ordering. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/7/2014