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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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 ch ild, A.K.
(“Child”), born in July of 2000, appeals from the perm anency 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

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* Retired Senior Judge assigned to the Superior Court.

1 PLC is a placement option under the Juvenile Act tha t 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 t heir child if deemed appropriate by the trial court. See id.J-S53045- 14

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Child shall remain with the Indiana County Children and Youth Services
Agency (“CYS”), and that Child shall remain in foster ca re. 2 We affirm.

The trial court related the relevant facts and procedu ral history of this

case as follows:

[Mother and Father are the parents of Child].

On August 23, 2012, Father filed a Petition for Eme rgency 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 enumera ted charges and/or convictions under 23 Pa.C.S.A. § 5329. A proce eding occurred on August 29, 2012. A representative of [CYS ] was present[,] as [CYS] was providing general protective ser vices because of truancy. As a result of the proceeding, it w as determined that Father also had an enumerated convicti on from the [S]tate of Michigan, and due to Mother’s incarcerat ion, 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, appe ared with Boyfriend. Father also appeared. Mother, Boyfriend and Father were not placement options because of their enumerated convictions. [M]aternal [G]randfather had recently die d. 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 juv enile court. A Dependency Petition was filed by [CYS] on Oct ober 23, 2012. Grounds under 42 Pa.C.S.A. § 6302(a)(1) were alleged.

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2 A.K. (“Father”) has not appealed the order changing C hild’s permanency placement goal to PLC, nor is he a party to this appea l.J-S53045- 14

- 3 - An Adjudication and Disposition hearing occurred on November 8, 2012 and the Child was placed in the tem porary legal custody of [CYS]. Placement was in foster care. T he 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 per manency plan and completed her initial treatment group at th e 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 Permanen cy Review proceeding on June 27, 2013. However, her pr ogress remained at the moderate level due to another positi ve drug test on February 7, 2013. At the September 26, 2013 Per manency Review hearing, Mother was in full compliance. She r egularly attended the Open Door and began working with Justice Works, a human service agency. Her progress was rated as moderat e because she had only recently started the program with J ustice Works. Mother again achieved full compliance at the J anuary 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 beca use she passed all her drug screens and was consistent in working w ith Justice Works.

[CYS] filed a Motion for Permanency Review/Change of Goal on March 24, 2014. The request for change of goa l was based on credible information that [CYS] received abou t the sale of drugs at Mother’s home, which she shares with Boyfrien d. During a meeting with [CYS], which occurred on January 30, 2014, Mother’s explanation for what occurred did not m atch 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 cl ose relationship with her Mother.

A Permanency Review/Change of Goal hearing occurred on April 10, 2014. Present was the [CYS] Solicitor, Moth er and her court appointed counsel, Father, who participated by ph one from Michigan, Father’s court appointed counsel, and the Guar dian ad Litem. The Child was interviewed in camera . Testimony wasJ-S53045- 14

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received from [Mother, Mother’s former husband, W.L. ( “Ex

Husband”), [ 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 omi tted)).
On May 13, 2014, Mother simultaneously filed a timel y 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 complia nce 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 peti tion to change a
dependent child’s permanency placement goal to PLC is a buse of discretion.

When reviewing such a decision[,] we are bound by the facts as found by the trial court unless they are not supp orted in the record. Furthermore, in a change of goal proceedi ng, the trial court must focus on the child and determine the goal in accordance with the child’s best interest and not those o f his or her parents.

At each review hearing concerning a child who has been adjudicated dependent and removed from the parental home,

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3 Ex

- Husband is the father of Mother’s daughter, K.L. (“Daug hter”), who is 18 years old, and Mother’s son, M.L., who is 20 years o ld. ( 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 phys ical and legal custody of their two children. ( See id. at 6).J-S53045- 14

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the trial court must consider: the continuing necessity fo r and appropriateness of the placement; the extent of complia nce with the service plan developed for the child; the extent o f progress made towards alleviating the circumstances which necessitate d the original placement; the appropriateness and feasibi lity of the current placement goal for the child; and, a likely da te 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 b y the trial court and supported by the record, we are not b ound by the trial court’s inferences, deductions, and conclusions theref rom; we must exercise our independent judgment in reviewing the court’s determination, as opposed to its finding s of fact, and must order whatever right and justice dictate. We revi ew for an abuse of discretion. Our scope of review, accordingly, i s of the broadest possible nature. It is this Court’s responsibili ty to ensure that the record represents a comprehensive inquir y and that the hearing judge has applied the appropriate l egal 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 o f the parties and the witnesses.

In re H.V. , 37 A.3d 588, 593 (Pa. Super. 2012) (citation omitt ed).
Section 6351(f) of the Juvenile Act prescribes the pert inent inquiries
for the reviewing court as follows:

(f) Matters to be determined at permanency hearing.

— At each permanency hearing, a court shall determine all o f 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.J-S53045- 14

- 6 - (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

ch ange of goal proceeding, the best interests of the chil d, and not the
interests of the parent, must guide the trial court, a nd 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 proceedin g, 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 th e trial court
committed an abuse of discretion in failing to accord p roper weight to her

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

It is well established that “[t]he trial court, not t he appellate court, is
charged with the responsibilities of evaluating credibil ity of the witnesses
and resolving any conflicts in the testimony. In carryin g out theseJ-S53045- 14

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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 cou rt’s findings are

supported by competent evidence of record, this Court wi ll 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 explain ed its reasoning for
according le ss weight to Mother’s testimony than that of the other witnesses,

as follows:

During the April 10, 2014 hearing[,] the [trial c]o urt heard testimony from [Ex-Husband], [CYS] caseworker[] Joseph Petruna, Mother, and Boyfriend’s [C]ousin . . . .

. . . [Ex-Husband] testified that[,] on January 9, 20 14, he intercepted a text message from Mother to [Daughter]. The text message stated: “Hey Tom’s guy brought over two new kin ds of stuff he got sent from Colorado[,] purple halo and og [k]ush.” [Ex-Husband] un derstood “purple halo” and “og [c]ush . . .” to be drug related names of strains of marijuana. [Ex-Hu sband] 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 show ed 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 confro nt her and Boyfriend about what he perceived to be an offer of drugs to [Daughter]. [Ex-Husband] stated that Mother denied t hat she was using or in possession of any drugs and told [Ex-Husb and] that [Daughter] used marijuana. [Ex-Husband] informe d Mother of his intention to contact his attorney and the Distric t Attorney’s office. . . .

The [trial c]ourt finds [Ex- Husband’s] testimony regarding the text message, the implications of the text message an d the conversation with Mother credible. While [Ex-Husband] was noticeably angered, even at the hearing, by Mother’s actions, hisJ-S53045- 14

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te stimony 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 f or advice on how to keep Mother from interacting with [Daughte r]. In addition, contact was made with local law enforcement a nd [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, Bo yfriend 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 a nd she wanted to share a success with her. According to Mr. Petru na, Mother characterized the incident as “somebody came by to peddle this stuff and she responded by showing him out a nd it was a strength of her recovery.” Mother told Mr. Petruna that the text message to [Daughter] was not complete and tha t she was prevented by [Ex- Husband’s] phone call from sending the second part of the message. [CYS] reviewed phone record s provided by [Ex-Husband]. The records establish that t he 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 subseque nt search of Mother’s residence produced no illegal substances and that charges have not b een filed against Mother or Boyfriend. After meeting wi th Mother, [CYS] continued to have safety concerns related to Moth er’s activities and judgment, even though Mother, who was being tested regularly by the Open Door, had not had a posi tive 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 accomplis hment. According to Mother, “that was the first time that I ha ve actually encountered drugs right in front of my face and not ev en [had] an inkling to do them.” Mother wanted an acknowledgm ent of this accomplishment. Mother described [Daughter] as anJ-S53045- 14

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integral part of her support system. She said she cele brated recovery milestones with [Daughter]. Mother asserts tha t a phone call from [Boyfriend’s Cousin] prevented her fro m 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 t he 52 minute lapse between the alleged incomplete text messag e to [Daughter] and [Ex- Husband’s] phone call. Also, altho ugh Mother describes [Daughter] as being an important person in her support system, [Daughter] did not appear and testify o n Mother’s behalf. During her testimony, Mother was rel uctant 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] th at [Daughter] smoked [marijuana]. In response to a questi on from the Guardian [A]d Litem, Mother explained that she shared the names of the marijuana in the text to [Daughter] beca use she thought they were “amusing and strange.”

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The [trial c]ourt gives less weight to Mother’s testimon y than to the other witnesses. In reviewing the testimon y of Mother, the [trial c]ourt does not find her explanat ion for the text message and events that transpired credible. A pl ain 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 k inds 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 te nse can be plainly read as a transactional and an on-going rel ationship between the Boyfriend and his supplier. While a search of Mother’s residence yielded no illicit substances, this sear ch occurred after Mother was told by [Ex-Husband] that he would contact law enforcement.

The [trial c]ourt believes it is entirely reasonable t o find Mother less credible than the other witnesses. Mother ha d no sufficient explanation for why she did not complete th e text message to [Daughter] in the 52 minutes that elapsed fr om theJ-S53045- 14

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time of the text until [Ex- Husband’s] phone call. Mother could have provided substantiating evidence, such as phone reco rds, 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 pl ain interpretation of the text points to a transactional r elationship between Boyfriend and the person who came to the resid ence on January 9th. The text reads like an advertisement, m entioning, “new kinds of stuff”, “from Colorado”, and highlights th e 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 po or judgment on Mother’s part establishes that in the 15 months that the Child h as been in placement, Mother has not progressed to provide the Chi ld with proper parental control and care.
(Trial Ct. Op., at 9-16 (citations omitted)).

We conclude that the t rial court’s findings are based on competent
evidence in the record and, thus, reject Mother’s argume nt, which would

require this Court to revisit and essentially reverse t he trial court in its
credibility determinations. Accordingly, we discern no a buse 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 chan ge of goal petition.

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

ful l 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 cour t’s finding that CYS

was having trouble getting Mother to schedule a drug t est in February
[2014], Mother testified that she was continuing to be tested at [t]he OpenJ-S53045- 14

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Door, and the caseworker testified that as far as he wa s aware, [t]he Open
Door had not received a positive drug screen since Februa ry 2013.” ( Id. ).
In addition, Mother argues that her text message to D aughter 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 d id 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 a buse of discretion in
changing Child’s permanency placement goal from reunifi cation to PLC given
Mother’s asserted full compliance with the permanency pl an in conjunction
with “[CYS’s failure] to produce any definitive eviden ce that Mother was
engaged in an illegal activity.” ( Id. at 17). We disagree.
In its opinion, the trial court explained the basis f or its determination
that Child’s best interest necessitated that the permane ncy placement goal
be changed from reunification to PLC, as follows:

[W]hile [Mother] has consistently maintained full compli ance [with the permanency plan], she has not progressed suffic iently during [C]hild’s 15 months in placement. Mother had p ositive 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 p rogress at the January 16, 2014 hearing, this determination was made without considera tion 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 an d poor judgment.

As in In re S.B. , 943 A.2d 973, 983 (Pa. Super. 2008), where the Court determined that although the natura l parents had remained in full compliance with the permanency pl an, it was still in the best interest of the child to grant a change of goal from reunification to adoption. In the instant case, M other hasJ-S53045- 14

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complied with the permanency plan, but has made insuffi cient progress to alleviate the issues that necessitated the ori ginal placement. Progress is the salient issue. In spite of Mother’s involvement in services and treatment, she has had two p ositive drug tests, illicit drug activity at her residence, and demonstrated poor judgment. Following the January 16th [permanency review hearing], [] Mother did not respon d 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 t o 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 ap propriate goal s for the Child at this time. . . . Mother has been un able 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, prote ction and ph ysical, mental and moral welfare[.] [C]hild has flo urished in placement. [Child’s] grades and [school] attendance hav e improved and she has expressed a desire to remain with h er foster parents, while continuing to visit and maintain a relationship with Mother. As Mother has demonstrated continued poor judgment and compelling, credible evide nce of continued illegal activity in the home was presented t o the [trial c]ourt, the [trial c]ourt finds that it is in the best i nterest of the Child to change the permanency goal from reunificatio n 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 comp liance with the
permanency plan, Mother made insufficient progress towar d alleviating the
circumstances which necessitated Child’s original placement. Accordingly,
we agree with the trial court’s determination that Ch ild’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.J-S53045- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014