In the Interest of: G.S., A Minor, Appeal of: W.S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF G.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.S., FATHER
No. 824 WDA 2016
Appeal from the Order May 12, 2016
in the Court of Common Pleas of Erie County Domestic Relations
at No(s): No. 189 of 2015
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 19, 2016
W.S. (“Father”) appeals from the order of the Erie County Court of
Common Pleas that directed the Office of Children and Youth (“OCY”) to
discontinue services and visitation regarding his dependent, non-biological
child, G.S. (“Child”).1 Father claims the trial court erred when it suspended
services and visitation pending the results of a paternity test and found the
concurrent permanency goals of reunification and adoption were no longer
feasible. We affirm.
On August 6, 2015, OCY obtained an emergency protective order to
ensure Child’s safety after Child’s mother (“Mother”) was admitted to a
hospital for a report of chest pain. Child was with Mother at the time, and
they were homeless. OCY learned of Mother’s mental health problems,
history of substance abuse, unstable housing, and lack of necessities for
*
Former Justice specially assigned to the Superior Court.
1
Child was born in June of 2012.
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Child. Father was not known to OCY at the time and Mother refused to
cooperate with OCY. Child was placed in the legal and physical custody of
OCY.
OCY filed a dependency petition on August 10, 2015, which listed
Mother as the only parent. On August 14, 2015, OCY amended its petition
to include Father. As to Father, OCY alleged he was not an active caregiver
for Child, might not be Child’s biological parent, and was the subject of a
protection from abuse (“PFA”) order for multiple domestic violence incidents
against Mother. At least one of the domestic violence incidents occurred in
the presence of Child.2
At an August 18, 2015 adjudication hearing before a master, the
parties agreed to amend the dependency petition to reflect that Father and
Mother married in May of 2012—approximately one month before Child’s
birth—and Father participated in the upbringing of Child until he and Mother
separated in April of 2015. At the hearing, Mother asserted Child’s biological
father was E.A. OCY requested paternity testing, but Father objected based
on estoppel. The master concluded paternity testing was not required at
that time and found Child dependent. The trial court adopted the master’s
recommendations on August 21, 2015.
2
Father later acknowledged that Child was present when he punched Mother
in the head multiple times after Mother blamed him for damage to the car.
See Addendum to Psychological Evaluation, 12/10/15, at 5.
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Following a permanency review hearing on September 16, 2015, the
trial court entered a dispositional order on September 22, 2015. The court
indicated the current placement goal for Child was “return to parent or
guardian.” Order, 9/22/15, at 2. The court ordered Father to (1) cooperate
with OCY, (2) attend and complete a domestic violence/anger management
program, (3) provide for the health and safety of Child during visitation, (4)
alternate attendance at Child’s medical appointments with Child’s mother,
and (5) demonstrate an understanding of the information provided by
healthcare professionals.3 Id. The court directed Father to undergo a
psychological assessment. Id.
On December 16, 2015, the trial court convened a permanency review
hearing. OCY called Dr. Peter von Korff to testify regarding his psychological
evaluations of Father. According to Dr. von Korff, Father exhibited a
schizotypal personality disorder that affected his ability to care for Child 4 and
3
We note that there was an issue regarding Mother and Father’s consent to
vaccinate Child. Mother was willing to have some vaccinations administered.
Father asserted a religious belief arguing Child was not an “animal.”
4
Specifically, Dr. von Korrf opined:
The present assessment indicates that [Father] has a
number of deficits that draw into question his ability to
function as an independent caregiver to [Child]. From a
diagnostic perspective he would appear to present with
chronic personality and socialization problems that best fit
the pattern of Schizotypal Personality Disorder. From an
attachment perspective he presents with a preoccupied
state of mind, so that despite his valuing of relationships
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would need an anger management program, as well as years of individual
mental health treatment, before he could safely parent Child. 5 See N.T.
12/16/15, at 19-21. The doctor noted that Father did not acknowledge
having mental health issues or a need for treatment. Id. at 11.
Mother maintained that E.A. was Child’s biological father. Id. at 70.
Mother acknowledged that in November 2015, one month before the
hearing, she attempted to reconcile with Father and withdraw or amend the
PFA to permit them to seek counseling. Id. at 71-72. She testified she and
Father had at least one counseling session, but she did “not intend to stay
he is unprepared at this point in time to develop secure
attachments with his significant others, including [Child]. .
..
It is the writer’s opinion that if [Father] were to resume
a primary parental role with [Child] that he would need
ongoing individual counseling and parent-child attachment
oriented psychotherapy. . . . [Father] has a degree of
extended family support, however his own interpersonal
adjustment and parenting skills are currently insufficient
for the task of managing [Child’s] developmental
requirements. . . .
Psychological Evaluation, 11/19/15, at 14.
5
In an addendum report, Doctor Kroff asserted an additional interview with
Father indicated “very significant problems” with anger management.
Addendum to the Psychological Evaluation, 12/10/15, at 6. According to the
doctor, Father “gave little thought to the impact of his behavior upon
[Child]” when discussing the incidents of domestic abuse against Mother.
Id. The doctor concluded that “the anger interview with [Father] raised
serious concerns about his suitability as a primary caregiver for [Child].” Id.
at 7.
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married” to Father. Id. at 72. Mother asserted a PFA was not necessary.
Id.
OCY’s counsel informed the trial court that Father was excluded as
Child’s biological Father at a prior support proceeding, but was found to be
Child’s legal parent. Id. at 54. Father’s counsel averred she was unaware
of a prior paternity test. Id. at 82.
OCY requested the addition of a concurrent goal of adoption. OCY
further requested Father receive no services. Father’s counsel objected to
the cessation of visitation.
On December 29, 2015, the trial court entered its permanency review
order. The court permitted Father one supervised visit with Child and
granted OCY’s request to add the concurrent goal of adoption. The court did
not order services for Father, but directed the parties to address whether a
paternity test was performed and whether it was in Child’s best interest to
continue providing services to Father. See Order, 12/29/15, at 2-3.
At the permanency review hearing on February 1, 2016, the trial court
indicated DNA testing confirmed that Father was not Child’s biological
parent. N.T., 2/1/16, at 3. OCY again requested cessation of services to
Father, arguing that it did “not want to look at [Father] as a resource”
because he was not a natural parent, he exposed Child to domestic violence,
and he continued to have serious mental health issues that remained
untreated. Id. at 5. OCY and Child’s guardian ad litem asserted it would be
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in Child’s best interest to discontinue Father’s visitation. Id. at 5, 9.
Father’s counsel requested a bonding assessment. Id. at 11-12. At the
conclusion of the hearing, the trial court questioned Father. Father denied
having mental health issues and requested a new mental health evaluation.
Id. at 24, 26. The court denied the request for an independent mental
health evaluation. Id. at 27.
The trial court entered its permanency review order on February 11,
2016. The court directed OCY to discontinue services to Father until a
bonding assessment was completed. Order, 2/11/16, at 3. However, the
goal of reunification concurrent with adoption remained unchanged. See id.
at 1-2. The court indicated Father made “moderate progress” toward
alleviating the circumstances necessitating placement. Id. at 1.
The trial court held a permanency review hearing on May 11, 2016.6
Father was not present, but was represented by counsel. The court noted
E.A. was determined to be the biological father of Child, but was not present
for the hearing. N.T., 5/11/16, at 2. OCY asserted it was exploring kinship
care out-of-state with E.A.’s family. Id. at 10. OCY requested to have
6
The hearing was initially scheduled for April of 2016, but was continued on
Father’s counsel’s request.
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Father “removed from the case” and asserted it would pursue termination of
his rights under 23 Pa.C.S. § 2511(a)(3).7
Dr. von Korff’s bonding assessment was made part of the record of the
May 11, 2016 hearing without objection or additional testimony from the
doctor, who was present at the hearing.8 Id. at 3.
In his report, Dr. von Korff opined:
The assessment evidenced a tenuous and troubled
attachment between [Father] and [Child]. Observations
obtained in the office setting were consistent with an
insecure attachment. [Child’s] preference was for
independent play. She used [Father] mainly as a
facilitator, a companion, and admirer, and a provider.
There was generally little eye contact and very little sense
of developing shared ideas. His departure from the room
and his subsequent return did nothing to alter [Child’s]
pattern of behavior. [Child] simply carried on with her
independent play interests.
A mixture of affectionate feeling, emotional strain and
remoteness was observed. Examples of confusion and
uncertainty in the emotional relationship included the
contrast between [Child’s] very slow warming to [Father]
and her tearful request to go with him at the close of the
meeting.
A comparison between the video clips [of Father’s
interactions with Child before the adjudication of
dependency] and the observed behavior in the session
revealed a very noteworthy degradation of the father-
7
Section 2511(a)(3) permits the termination of the rights of a parent on the
grounds that “[t]he parent is the presumptive but not the natural father of
the child.” 23 Pa.C.S. § 2511(a)(3). OCY filed a petition to terminate
Father’s parental rights while this appeal was pending.
8
Dr. von Korff was available for examination, but was not called to testify by
any of the parties.
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daughter relationship. It was clear that extended
separation has had an obstructive impact on their way of
being together. Remnants of a more affectionate
relationship survive despite their being apart, but the
quality of relaxed and joyful association observed in the
videos was never present during the office visit.
The writer’s observations suggested that a sub-optimal
and insecure early attachment relationship between parent
and child has been significantly degraded by their
protracted separation. The examiner would urge that
every effort be made to provide [Child] with attachment
permanency as soon as possible.
Bonding Assessment, 3/23/16, at 7-8.
The trial court entered its permanency review order on May 12, 2016,
indicating Father was noncompliant and made no progress in alleviating the
problems that necessitated the original placement. Order, 5/12/16, at 1.
The court discontinued OCY’s services to Father. Id. at 2. Child’s goal,
however, remained reunification concurrent with adoption. Id. at 1-2.
On May 13, 2016, Father’s counsel filed a motion to withdraw the May
12th order and reopen the record based on Father’s nonattendance at the
May 11th hearing. The court denied the motion. The court emphasized Dr.
von Korff was available for examination at the May 11th hearing and the
doctor’s bonding assessment was made part of the record without objection.
On June 8, 2016, Father timely filed his notice of appeal and statement
of errors complained of on appeal. The trial court filed a responsive opinion,
suggesting that Father’s procedural defaults precluded review, but also
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indicating that it found Father was an inappropriate resource for placement
planning based on Dr. von Korff’s testimony.
Father presents the following questions for our review:
Whether the [trial] court committed an abuse of discretion
and/or error of law when it determined that services
and/or visitation should cease between [Father] and
[Child] following the permanency review hearing on
December 16, 2015, pending the results of a paternity test
for [Father].
Whether the [trial court] committed an abuse of discretion
and/or error of law when it determined that the concurrent
permanency goal of reunification/adoption was no longer
feasible, dispensed with the current goal of reunification
after only nine (9) months and directed [OCY] to provide
no further services to [Father] or provide visitation with
[Child].
Father’s Brief at 2 (some capitalization removed).9
Preliminarily, we must address whether we have jurisdiction over this
appeal. See Mensch v. Mensch, 713 A.2d 690, 691 (Pa. Super. 1998).
Both the trial court and OCY suggest that Father’s appeal should be quashed
because the appeal is either untimely or interlocutory. Specifically, they
assert Father should have appealed the December 29, 2015 order adding the
concurrent goal of adoption, and the May 12, 2016 order directing the
9
OCY notes Father’s Pa.R.A.P. 1925(b) statement included a claim that the
trial court erred in refusing to reopen the May 11th hearing due to Father’s
nonattendance. Father’s brief does not address this issue in any meaningful
fashion. Accordingly, we conclude Father has abandoned any issue arising
from his failure to appear at the May 11th hearing. See In re W.H., 25
A.3d 330, 339 n.3 (Pa. Super. 2011).
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cessation of services and visitation was interlocutory and not appealable.10
We disagree.
It is well settled that jurisdictional issues, such as the appealability of
an order, raise legal question over which our review is de novo and plenary,
and which may be considered sua sponte. See id. This Court has held that
an order suspending visitation is final and appealable. See In re C.B., 861
A.2d 287, 289 n.1 (Pa. Super. 2004). Moreover, Pennsylvania courts hold
that an order granting or denying a goal change, even if it maintains the
status quo, is appealable. See In re H.S.W.C.-B, 836 A.2d 908, 909 (Pa.
2003); In re C.M., 882 A.2d 507, 513 (Pa. Super. 2005).
Instantly, the December 29, 2015 order initially added a goal of
adoption concurrent with reunification and permitted Father one supervised
visit. However, the trial court scheduled a further permanency review, at
which the parties were to address whether it was in Child’s best interest for
Father to receive services. Accordingly, the December 29th order was not a
final determination that Father was an inappropriate resource for services
and/or reunification.
In contrast, the May 12, 2016 order purported to end Father’s services
and visitation, even as the order maintained the concurrent goals of
reunification and adoption. The May 12th order, in effect, determined Father
10
OCY filed a separate motion in this Court to quash the appeal on the
above-stated grounds.
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was not a viable resource in the goal of reunification and granted OCY’s
request to “remove him” from the dependency proceedings while OCY took
steps to terminate his parental rights. Accordingly, we deem the order of
May 12, 2016 to be final and appealable. In re H.S.W.C.-B, 836 A.2d at
909; In re C.M., 882 A.2d at 513; In re C.B., 861 A.2d at 289 n.1.
Father first argues that it was not in Child’s best interests to cease
services and visitation and there was no indication he posed a grave threat
to Child. He contends that he has held himself out as Child’s father, Child
knows and accepts him as her father, he was Child’s legal father for the
purposes of support, and Child and Father share a loving bond. 11 Father’s
Brief at 11-13. Second, Father argues that the trial court abused its
discretion when it determined the permanency goal of reunification
concurrent with adoption was “no longer feasible.” Id. at 13. He claims
that he was making progress toward achieving reunification and the court’s
finding, as memorialized in the May 12, 2016 order, that he was
noncompliant and made no progress toward reunification lacked support in
the record. Id. at 13. Father observes that OCY filed a petition to terminate
11
We note that Father challenges the trial court’s decision to “put on hold”
his services and visitation in the December 16, 2015 permanency review
hearing. Father’s arguments with respect to the December 16, 2015 order
are either waived due to his failure to timely appeal that order or meritless
in light of the provisional nature of that order. However, given the practical
effects of the May 12, 2016 permanency review order, we will consider the
trial court’s ruling to terminate Father’s services and visitation.
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his parental rights and requests that we direct the withdrawal of the petition.
Id. at 15. We address these claims jointly.
The following standards govern our review:
When reviewing [the trial] court’s order in a case involving
a minor child, we review for an abuse of discretion with a
focus on the best interests of the child; an abuse of
discretion “is more than just an error in judgment . . .
[the trial court] will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable or the result of
partiality, prejudice, bias, or ill-will.”
In re M.B., 869 A.2d 542, 546 (Pa. Super. 2005) (citation omitted).
In dependency proceedings our scope of review is broad.
Nevertheless, we will accept those factual findings of the
trial court that are supported by the record because the
trial judge is in the best position to observe the witnesses
and evaluate their credibility. We accord great weight to
the trial judge’s credibility determinations. Although
bound by the facts, 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.
In re C.B., 861 A.2d at 294 (citation omitted).
This Court has noted:
Placement of and custody issues pertaining to
dependent children are controlled by the Juvenile Act, [ ]
which was amended in 1998 to conform to the federal
Adoption and Safe Families Act (“ASFA”).[ ] The policy
underlying these statutes is to prevent children from
languishing indefinitely in foster care, with its inherent lack
of permanency, normalcy, and long-term parental
commitment. Consistent with this underlying policy, the
1998 amendments to the Juvenile Act, as required by the
ASFA, place the focus of dependency proceedings,
including change of goal proceedings, on the child. Safety,
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permanency, and well-being of the child must take
precedence over all other considerations, including the
rights of the parents.
At each review hearing for a dependent child who has
been removed from the parental home, the court must
consider the following, statutorily-mandated factors:
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.
Matters of custody and placement for a dependent child
must be decided under the standard of the child’s best
interests, not those of his or her parents.
When the child welfare agency has made reasonable
efforts to return a foster child to his or her biological
parent, but those efforts have failed, then the agency must
redirect its efforts towards placing the child in an adoptive
home. This Court has held that the placement process
should be completed within 18 months. As this Court has
stated previously,
Pennsylvania . . . [is] required to return the child to
[his or her] home following foster placement, but
failing to accomplish this due to the failure of the
parent to benefit by . . . reasonable efforts, [the
Commonwealth is then required] to move toward
termination of parental rights and placement of the
child through adoption. . . . [W]hen a child is placed
in foster care, after reasonable efforts have been
made to reestablish the biological relationship,[12] the
12
The Juvenile Act traditionally focused on consanguinity or a formal legal
relationship. Cf. In re Davis, 465 A.2d 614, 619 (Pa. 1983) (plurality)
(noting “[t]here is no indication that the legislature intended ‘parents’ to
include anything other than natural, blood relationship parents, and adoptive
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needs and welfare of the child require [the child
welfare agency] and foster care institutions to work
toward termination of parental rights, placing the
child with adoptive parents.
In re N.C., 909 A.2d 818, 823-24 (Pa. Super. 2006) (citations omitted).
The record reveals that at the December 11, 2015 hearing, the trial
court initially expressed concerns about providing services to Father because
he was not a natural parent. However, the court found Dr. von Korff’s
psychological assessment of Father’s mental health issues and his need for
treatment credible. The court also determined that there was “not a strong
bond between [Father] and [C]hild, and that [Father] needed a lengthy
amount of time to stabilize his own behavior.” See Trial Ct. Op., 7/18/16, at
19. The court concluded that Child “needed permanency and stability and,
because of her young and vulnerable age, waiting for [Father] to stabilize
parents . . . .”); Ellerbe v. Hooks, 416 A.2d 512, 514-515 (Pa. 1980)
(noting “the blood relationship of parenthood has traditionally served and
continues to serve as our society’s fundamental criterion for allocating
control over and responsibility for our children . . . ”). However, the doctrine
of in loco parentis applies
to a person who puts oneself in the situation of a lawful
parent by assuming the obligations incident to the parental
relationship without going through the formality of a legal
adoption. The status of in loco parentis embodies two
ideas; first, the assumption of a parental status, and,
second, the discharge of parental duties. The rights and
liabilities arising out of an in loco parentis relationship are,
as the words imply, exactly the same as between parent
and child.
In re C.B., 861 A.2d at 296 (citation omitted).
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and also create a meaningful bond with her was not in her best interest.”
Id.
We find adequate support for the trial court’s decision to cease
services and visitation based on its findings that Father was not a viable
resource in placement planning for Child. The court considered and found
credible the record evidence that Father was unable to parent Child on his
own and would not be able to do so without years of treatment. Mother no
longer wished to reconcile with Father. Lastly, although Father made some
progress to the goal of reunification by complying with visitation and
undergoing a mental health evaluation, Father consistently denied the need
for further mental health treatment.13
Moreover, although only nine months passed between Child’s removal
from Mother’s custody and the trial court’s May 2016 decision to stop
services and visitation, the trial court appropriately focused on Child’s best
interests rather than Father’s parental rights. See In re N.C., 909 A.2d at
823-24.
13
We note the trial court asserts Father waived any objection to its finding
that he was noncompliant and failed to make progress. See Trial Ct. Op. at
17. At the May 11, 2016, hearing the trial court summarized OCY’s request
to terminate services as follows: “But for the purposes of dependency, your
argument is that it’s not in the best interest for [Child] to view [Father] as
either a father or a reunification resource, which is also generated by the
fact he’s noncompliant.” N.T., 5/11/16, at 3. Thus, the court did not make
a finding of fact and we disagree with its suggestion that Father’s failure to
object should result in waiver.
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Thus, we decline to disturb the order of the trial court directing OCY to
cease services and visitation to Father and file a petition to terminate
Father’s parental rights.
Order affirmed. OCY’s motion to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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