Opinion
J-S47001-16 No. 75 MDA 2016
08-11-2016
IN THE INTEREST OF: J.L., A MINOR, Appellee APPEAL OF: LANCASTER COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Dispositional Order December 11, 2015
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000110-2015 BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ. MEMORANDUM BY SHOGAN, J.:
Lancaster County Children and Youth Social Service Agency ("CYS" or "the Agency") appeals from the order dated December 7, 2015, and entered on December 11, 2015, adjudicating a male child, J.L. ("Child") (born in May of 2015) dependent pursuant to 23 Pa.C.S. § 6302(1), and finding aggravated circumstances under 42 Pa.C.S. § 6302. The order further directed that, pursuant to 23 Pa.C.S. § 6351, both S.L. ("Father") and L.B. ("Mother") shall be granted a plan for reunification with Child and that CYS shall submit a permanency plan to all counsel and the trial court for approval. We affirm.
See In re L.M., 923 A.2d 505, 508 (Pa. Super. 2007) (explaining that the thirty-day appeal period is not triggered until the clerk makes a notation on the docket that notice of entry of the order has been given) (citing Frazier v. City of Philadelphia , 735 A.2d 113 (Pa. 1999)).
We summarize the history of this case as follows. In 2008, Father and Mother were convicted of criminal homicide, endangering the welfare of a child, and conspiracy to commit those offenses in relation to the April 2007 death of Father's daughter, Q.L. (born in 1997), from a prior relationship. Q.L. had suffered from cerebral palsy, was unable to speak, legally blind, and wheelchair-bound. Q.L. was injured from an accidental hot water burn while Mother was assisting her in a bathtub. Both Mother and Father failed to seek appropriate medical treatment for Q.L. for eight days. Their failure to assist Q.L. resulted in her injuries worsening and led to her death. After Father and Mother were convicted of the above-stated crimes, they were sentenced to serve prison terms in 2008. In May of 2014, after serving their minimum sentences, Father and Mother were released on parole and will remain subject to supervision until May of 2021. As a condition of her parole, Mother is restricted her from being around children under the age of twelve without supervision. Mother's parole officer has prepared a petition to remove that restriction. Father is not under any similar restriction.
The trial court fully and aptly set forth a thorough recitation of the factual background and procedural history of this appeal in its opinion filed pursuant to Pa.R.A.P. 1925(a) on February 5, 2016. Trial Court Opinion, 2/5/16, at 1-15.
In May of 2015, Child was born. On June 1, 2015, CYS filed a petition seeking to adjudicate Child dependent, requesting a finding of aggravated circumstances, and seeking a protective order. On June 1, 2015, the trial court entered an order placing Child in the temporary legal and physical custody of CYS.
On June 3, 2015, a master held a shelter care hearing. The trial court entered a shelter care order on June 4, 2015, in which it found that the return of Child to the home of his parents was not in his best interest and ordered that temporary legal and physical custody remain with CYS, and Child's placement would remain in foster care. On June 12, 2015, the trial court entered an order modifying Child's placement to kinship care in the home of Father's niece, K.D., and her husband, L.D., while temporary legal and physical custody remained with CYS.
On September 3, 2015, the trial court held an adjudicatory hearing. In an order entered on September 28, 2015, the trial court continued the adjudicatory hearing. Based on the continuance of the hearing, on October 15, 2015, the trial court entered an order finding the necessity for, and appropriateness of, placement of Child. Child remained in the temporary legal and physical custody of CYS.
On December 7, 2015, the trial court held the continued dependency hearing. At the hearing, CYS presented the testimony of Jayme Suess, an intake supervisor at CYS, Amanda Schreiber, the ongoing caseworker assigned to Child, and K.D., who is the kinship caregiver for Child, N.T., 12/7/15, at 5, 29, and 37. Father testified on his own behalf. Id. at 49.
In the order dated December 7, 2015, and entered on December 11, 2015, the trial court adjudicated Child dependent pursuant to the Juvenile Act, 23 Pa.C.S. § 6302(1), and found aggravated circumstances under 42 Pa.C.S. § 6302. The order further directed that both Father and Mother shall be granted a plan for reunification with Child, and CYS shall submit a permanency plan to all counsel and the court for approval, pursuant to 23 Pa.C.S. § 6351. On December 16, 2015, Father's trial counsel entered an appearance on behalf of Father.
On January 8, 2016, CYS timely filed a notice of appeal, along with a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(i) and (b). On January 13, 2016, the trial court entered an order dated January 8, 2016, and effective December 7, 2015, appointing Mother's trial counsel, Attorney Daniel H. Shertzer, Jr., to represent Mother on appeal. On January 14, 2016, the trial court entered an order dated January 11, 2015, directing all parties except CYS to file answers to CYS's Pa.R.A.P. 1925 statement. The parties complied to the satisfaction of the trial court.
Pa.R.A.P. 108(b) designates the date of entry of an order as "the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.C.P. 236(b)." Pa.R.A.P. 108(b) (emphasis added).
CYS presents the following issue for our review:
Whether the trial court erred in its disposition of [C]hild's dependency matter, when it ordered that CYS] was required to make reunification efforts between Mother, [L.B.], and Father, [S.L.], and [C]hild?CYS's Brief at 4.
CYS argues that the trial court abused its discretion when it ordered CYS to make efforts to reunify Mother, Father, and Child. CYS's Brief at 11-16. CYS asserts that the decision was manifestly unreasonable and was not in Child's best interest. CYS claims that it cannot identify any combination of services to provide to Father and Mother to create a reasonable likelihood that Child could be safely returned to the custody of one or both of the parents. Id. at 10. CYS is confident that it is not in Child's best interest to make reunification efforts because there is no way to ensure, regardless of the number and type of services put into place, that Child could be safely returned to the custody of either Father or Mother and that Father and Mother would prioritize the health and safety of Child. CYS's Brief at 17. Accordingly, CYS requests us to reverse the trial court order as it relates to reunification. Id.
The guardian ad litem argues that the trial court did not err in ordering a plan of reunification for Father, Mother, and Child. Rather, the guardian ad litem asserts that, after finding aggravated circumstances, the trial court examined the underlying facts and properly determined that reunification efforts were appropriate. Father contends that there was ample evidence to support a finding that it was appropriate to provide the parents with a permanency plan containing a primary goal of reunification.
Our Supreme Court set forth our standard of review for dependency cases as follows:
[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 R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Regarding the definition of an abuse of discretion, this Court has stated the following:
An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007) (quoting Arbet v. Arbet , 863 A.2d 34, 39 (Pa. Super. 2004)).
Additionally, "[t]he burden of proof in a dependency proceeding is on the petitioner to demonstrate by clear and convincing evidence that a child meets that statutory definition of dependency." In re G., T., 845 A.2d 870, 872 (Pa. Super. 2004). Section 6302 of the Juvenile Act defines a "dependent child" as a child who:
(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]42 Pa.C.S. § 6302(1) (emphasis added).
Section 6341 of the Juvenile Act provides, in pertinent part, as follows:
(a) General rule.— After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child. . . .42 Pa.C.S. § 6341(a) and (c).
* * *
(c) Finding of Dependency.— If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.
In In re D.A., 801 A.2d 614 (Pa. Super. 2002), a panel of this Court stated:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).Id. at 617. "The question of whether a child is lacking proper parental care and control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper care or control, and if so, whether such care and control are immediately available." Id. at 619 (citation omitted).
Section 6341(c.1) of the Juvenile Act addresses aggravated circumstances and provides as follows:
(c.1) Aggravated circumstances.—If the county agency or the child's attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a dispositional hearing as required by section 6341(c.1) (relating to disposition of dependent child).42 Pa.C.S. § 6341(c.1).
Section 6302 of the Juvenile Act sets forth pertinent definitions of various terms and defines "aggravated circumstances" as including the following circumstance:
(2) The child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent.42 Pa.C.S. § 6302.
Regarding the placement of a child who has been adjudicated dependent, this Court has explained:
When a child is adjudicated dependent, the child's proper placement turns on what is in the child's best interest, not on what the parent wants or which goals the parent has achieved. See In re Sweeney , 393 Pa. Super. 437, 574 A.2d 690, 691 (PA. Super. 1990) (noting that "[o]nce a child is adjudicated dependent . . . the issues of custody and continuation of foster care are determined by the child's best interests"). Moreover, although preserving the unity of the family is a purpose of the Act, another purpose is to "provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S. § 6301(b)(1.1). Indeed, "[t]he relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child." In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263, 1267 (Pa. Super. 1983).In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
Upon a careful review of the certified record in this matter, including the testamentary and documentary evidence, we discern that the trial court did not err or abuse its discretion in allowing Father and Mother an opportunity to reunify with Child if they successfully complete a permanency plan. We adopt the trial court's opinion for its analysis in support of its decision. Trial Court Opinion, 2/5/16, at 16-20. In addressing the claims of CYS, the trial court appropriately noted the binding instructions of our Supreme Court to this Court regarding appropriate appellate review of dependency decisions set forth in R.J.T., 9 A.3d at 1190. Trial Court Opinion, 2/5/16, at 22. We stress that the trial court emphasized that it has ordered CYS to provide Father and Mother only:
with the opportunity to achieve reunification with [C]hild. It has not ordered that reunification between the parents and the [c]hild take place at this time, as that outcome is ultimately
dependent upon the completion by one or both parents of the objectives set forth in [C]hild's Permanency Plan which the [c]ourt approved as part of the disposition. Further, to assure that [C]hild's interest in achieving timely permanency was advanced, the [c]ourt directed that [C]hild's Permanency Plan incorporate a concurrent permanency goal of placement for adoption.Trial Court Opinion, 2/5/15, at 21-22 (emphasis in original). Accordingly, we are constrained by R.J.T. to affirm the order of the trial court, which we do on the basis of the trial court opinion.
The parties are directed to attach a redacted copy of the February 5, 2016 opinion in the event of further proceedings in this matter.
Order affirmed.
Judge Jenkins joins the Memorandum.
Judge Lazarus Concurs in the Result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2016
Image materials not available for display.