In the Interest of R.J.T.
In the Interest of R.J.T., a Minor. Appeal of R.T. (Natural Mother)
Attorneys
Benjamin Nelson Zuckerman, Esq., Juvenile Court Project, for R.T., appellant., Mark B. Greenblatt, Esq., Allegheny County Law Dept., for Allegheny County Children, Youth and Families, appellee., Judith Ellen Patterson, Esq., KidsVoice, fro R.J.T., appellee.
Full Opinion (html_with_citations)
OPINION
This case comes before this Court as a Childrenâs Fast Track matter involving the potential change of the goal of a dependent childâs permanency plan from reunification with his parents to adoption. We granted review to consider whether the Superior Court erred in determining that the trial court abused its discretion in denying the goal change requested by the Allegheny County Office of Children, Youth, and Families (âCYFâ). Upon review, we conclude that the Superior Court erred. Accordingly, we reverse the Superior Courtâs decision and reinstate the trial courtâs order.
On January 23, 2007, less than a month after his birth, R.J.T. (âChildâ) was removed from his parentsâ care following an incident of domestic violence between R.T. (âMotherâ) and J.T. (âFatherâ) (collectively, âParentsâ). Initially, Child was placed with his paternal grandmother. In February 2007, the trial court adjudicated Child dependent based on the domestic violence concerns and Parentsâ drug and alcohol use, and placed Child in foster care. A Family Service Plan (âFSPâ) was developed by CYF to address the domestic violence, drug, and alcohol issues that led to Childâs placement. Permanency review hearings were held in May 2007, August 2007, December 2007, March 2008, June 2008, and August 2008, and, relevant to the current appeal, in January 2009, pursuant to 42 Pa.C.S. § 6351.
During this time, Child resided with foster parents (âFoster Parentsâ).
The relevant permanency review hearing was held on January 23, 2009, exactly two years after Childâs initial removal from Parentsâ care. As of that date, Child resided with Foster Parents, who did not testify at the hearing; however, CYF represented that Foster Parents desired to pursue adoption of Child, despite the recently recanted request for removal of Child from their home. Mother and Father were married but not living together at the time of the hearing, and Mother had recently requested modification of a Protection From Abuse (âPFAâ) order to allow contact with Father, which would permit marriage counseling.
Evidence was presented that Child visited with both Mother and Father.
Testimony revealed that Mother and Father had made some progress toward addressing their domestic violence and drug and alcohol problems, as well as their other goals. CYF, however, emphasized that Parents had not attained all the goals at the time of the hearing, as discussed below.
At the hearing, CYF made an oral motion for a permanency plan goal change from reunification with Parents to adoption.
Dr. Rosenblum recommended dual-tracking, also known as concurrent planning. In In re Adoption of S.E.G., 587 Pa. 568, 901 A.2d 1017, 1019 (2006), we observed that concurrent planning âis a dual-track system under which child welfare service agencies provide services to parents to enable their reunification with their children, while also planning for alternative permanent placement should reunification fail.â Dr. Rosenblum testified that Mother and Father were actively pursuing their goals and that reunification was still possible despite continuing serious issues. N.T. at 9-11. Conversely, Dr. Rosenblum recognized that Child had been in placement for an extended time, which would counsel in favor of a goal change, but noted that Foster Parentsâ recent filing and recantation of their request to remove Child from their home raised doubts about their commitment to Child. N.T. at 9-11. Premised upon these concerns, Dr. Rosen-blum testified that he would like to conduct further evaluations of Foster Parents. After considering Dr. Rosenblumâs testimony and the other evidence presented, the trial court denied the motion for goal change for the reasons set forth below.
In considering the goal change motion, the trial court correctly observed that it had a âresponsibility to look to the best
The trial court determined, based on the facts at the time of the hearing, that âreunification is best suited to Childâs safety, protection and physical, mental, and emotional welfare and adoption is not best suited for several reasons.â Tr. Ct. Op. at 5. As the first reason for its conclusion regarding adoption, the court stated that âit is uncertain whether Foster Parents are fully dedicated to Child, thus calling into question the long-term stability of Childâs current placement.â Tr. Ct. Op. at 5. As evidence to support its finding, the court noted that âDr. Rosenblum testified that the [October 2008 notice requesting removal of Child] changed his opinion of the situation and [that Dr. Rosenblum] would want to conduct further evaluations with Foster Parents and Child to determine if this home is the best fit for Child.â Tr. Ct. Op. at 5. The court also expressed concern regarding the âpressure exerted by [Foster Parentsâ] extended family [that] shows that the extended family does not have a close relationship with Child or see him as part of the family, which could be detrimental to the emotional and mental welfare of Child.â Tr. Ct. Op. at 5.
As a second reason for rejecting the goal change to adoption, the trial court found that âboth Father and Mother have been adamant in their pursuit to regain custody of Child by working toward their Family Service Plan (FSP) goals and become a family.â Tr. Ct. Op. at 5. The trial court was not blind to issues that remained as obstacles to reunification including Mother and Fatherâs history of domestic violence. The court, however, noted that Father had attended a seventeen-week anger management and domestic violence class and that Mother intended to withdraw the PFA order she attained against Father to allow them to attend marriage-counseling classes together. The court also observed that both Mother and Father had attended at least some of the required behavioral health therapy sessions. In addition, the trial court noted that Father testified that he would treat Motherâs unborn child (for which he was not the biological parent) as his own, if reunification was granted. The court emphasized evidence, some of which was introduced by CYS, indicating that both Mother and Father interacted well with Child and showed positive parenting skills. The court also noted that Mother had attained her goals of securing housing and full-time employment.
The court concluded, âthe best interests and permanent welfare of Child at this time is to not change the goal to adoption, but for the goal to remain reunification.â Tr. Ct. Op. at 7. Although the court did not use the term âconcurrent planningâ in the phrasing of its conclusion, his final two sentences address the consideration of two tracks for Child. First, the court observed that not changing the goal would allow Mother and Father to come into full com
CYF appealed the denial of the goal change to the Superior Court, asserting that the trial court had abused its discretion in denying the goal change motion for a two-year-old child who had been in placement for twenty-two months. In a published opinion of a three-judge panel with one dissenting judge, the Superior Court reversed and remanded for entry of an order changing the goal to adoption. In re: R.J.T., 990 A.2d at 788.
The Superior Court stated that the proper standard of review in dependency cases is whether the trial court abused its discretion, noting that the appellate court must accept the facts as found by the trial court, unless they are not supported by the record, but that the court is not bound by the trial courtâs inferences or legal conclusions. Id. at 780; see also, e.g., In re D.P., 972 A.2d 1221, 1225 (Pa.Super.2009); In re S.B., 208 Pa.Super. 21, 948 A.2d 978, 977 (2008). As did the trial court, the Superior Court emphasized that the focus at a permanency plan hearing is on the best interests of the child, not the parent. Further, the court stated that the burden of proof is on the agency seeking the goal change.
The Superior Court next turned to the statutory requirements of the Juvenile Act for disposition of a dependent child as set forth in 42 Pa.C.S. § 6351, with special focus on the dictates of subsection (f).
(f) Matters to be determined at permanency hearing.âAt each permanency hearing, a court shall determine ...
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the childâs parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child....
42 Pa.C.S. § 6351(f)(9) (emphasis added, language omitted relating to exempted circumstances not applicable to the case at bar).
In summarizing the state of the law, the Superior Court extensively quoted the decision of this Court in In re S.E.G., 587 Pa. 568, 901 A.2d 1017, in which we addressed the incorporation of concurrent planning into Pennsylvaniaâs Juvenile Act, 42 Pa.C.S. § 6301, et seq., pursuant to the Federal Adoption and Safe Families Act of 1997, Pub L. 105-89 (âASFAâ). As previously stated, concurrent planning involves a dual-track system by which agencies are encouraged to provide simultaneous services aimed at both reunification and adoption. Id. at 1019. In In re S.E.G., we observed that concurrent planning developed to address the problem of foster care drift, where children languished in the foster care system while their parents unsuccessfully attempted to regain custody. Id. Rather than waiting to pursue adoption options until all reunification attempts fail, concurrent planning allows children to move more quickly through the dependency system and into the permanent placement best suited to their individual situation through simultaneous pursuit of reunification and alternative permanent placement. Specifically, we held that agencies could file termination of parental rights petitions, in furtherance of adoption, even though the permanency goal remained reunification. Id. at 1029.
The Superior Court in the case at bar also quoted prior Superior Court cases holding that the decision to change a permanency plan goal from reunification to adoption signals that the court has decided that the agency âhas provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition. Once the goal is changed to adoption, [the agency] is not required to provide further services.â
The Superior Court concluded that the trial court âfailed to follow the legal principles set forth in § 6851(f) and (ÂŁ1)[
The Superior Court instead discussed testimony in the record, not relied upon by the trial court, supporting a change of goal to adoption. The testimony emphasized by the Superior Court indicated that Parents had not met all of their FSP goals and that problems remained between them, facts the trial court actually considered in making its determination. Despite quoting the trial courtâs statement during the hearing that the case involved a âvery close call,â the Superior Court found that the trial court abused its discretion in not granting the goal change to adoption. Id. at 787. In so doing, the Superior Court essentially ignored the effect of the trial courtâs order, which provided for concurrent planning by encouraging continued efforts at reunification between Child and Parents while also contemplating the appropriateness of adoption.
To support its contrary conclusion, the Superior Court emphasized the language of § 6351(f)(9). As previously stated subsection (f)(9) provides in relevant part: âAt each permanency hearing, a court shall determine ... [i]f the child has been in placement for at least 15 of the last 22 months, ... whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child.â
Judge Ford Elliott dissented, concluding that the trial court was âclearly within its discretionâ when it denied the motion to change the goal to adoption based upon its determination âthat the parents are continuing to make progress, there clearly exists a bond between parents and child, and there is no pending adoptive resource to otherwise bring about permanency for the child.â In re: R.J.T., 990 A.2d at 788 (Ford Elliott, J. dissenting).
Mother filed a petition for allowance of appeal to this Court. We granted review and rephrased the issue: âWhether the Superior Court erred in determining the trial court abused its discretion in denying CYFâs permanency goal change request
Mother argues that the Superior Court erred in not crediting the factual determinations of the trial court upon which the court based its conclusion that a goal change was not best suited for Child. Moreover, she asserts that the Superior Court improperly focused on § 6351(f)(9), which is just one of many factors a trial court must consider in determining whether a goal change is best suited to the child. Additionally, she observes that the section merely requires the court to determine whether CYF has filed a termination petition if the child has been in placement fifteen of the last twenty-two months or whether the child fits into an exception. She emphasizes that there is no language in the statute requiring the trial court to grant a goal change based merely on the child being in placement for the fifteen-month period. She contends that the Superior Courtâs holding mandates a goal change based on this one factor, which she claims undermines the statutory language requiring the court to focus on whether a goal change is best suited to the child upon consideration of all the factors. Mother observes that refusing the goal change is not inconsistent with concurrent planning because, under In re S.E.G., CYF can plan for termination of parental rights while pursuing the goal of reunification.
CYF and KidsVoice filed briefs in support of the Superior Courtâs decision, asserting that the court was not substituting its judgment regarding the credibility of witnesses but merely âhighlightingâ certain testimony. Brief by CYF at 14. Additionally, they contend that the Superior Court correctly interpreted the requirements of subsection (f)(9). Appellees assert that the federal and state statutory provisions demonstrate a legislative intent that the âbest interests of children in foster care specifically require that their permanency goals be changed, when a child has been in placement for 15 months, unless one of the expressed exceptions has been found.â Brief by CYF at 13. Appel-lees focus on the public policy we asserted in In re S.E.G., favoring concurrent planning to prevent prolonged foster care and foster care drift, and contend that the trial court in this case perpetuated Childâs time in foster care, given that Parents are unlikely to gain reunification. They further fault the trial court for not ordering concurrent planning, when the court psychologist recommended it. Appellees request that we affirm the Superior Courtâs decision.
We do not quarrel with the trial courtâs observation that this case is a very close call. Without doubt, the record could have supported a goal change to adoption, as Child had been in custody for an extended period and Parents had not attained the goals of their FSP at the time of the permanency hearing. However, the record also supports the trial courtâs decision to deny a goal change for all the reasons stated above, including Mother and Fatherâs continued, somewhat successful efforts to attain their goals, their positive interactions with Child, and the concerns regarding Foster Parents.
This case epitomizes why appellate courts must employ an abuse of discretion standard of review, as we are not in a position to make the close calls based on fact-specific determinations. Not only are our trial judges observing the parties during the hearing, but usually, as in this case, they have presided over several other hearings with the same parties and have a longitudinal understanding of the case and the best interests of the individual child involved. Thus, we must defer to the trial judges who see and hear the parties and can determine the credibility to be placed on each witness and, premised thereon, gauge the likelihood of the success of the current permanency plan. Even if an appellate court would have made a different conclusion based on the cold record, we are not in a position to reweigh the evidence and the credibility determinations of the trial court. The Superior Court in this case did just that in highlighting negative information regarding Parents. Moreover, the Superior Court did not conclude that the trial courtâs findings of fact were not supported by the record. Accordingly, we conclude that the Superior Court erred in reevaluating the evidence.
More significantly, the Superior Court also misconstrued the requirements of § 6351(f)(9). As noted, it interpreted the subsection to require a trial court to grant a goal change motion if a child has been in placement for fifteen of the last twenty-two months and reunification is not imminent. The language of the statute, however, does not support such a litmus test. Instead, (f)(9) is merely one of a number of factors a trial court must consider in ultimately determining whether the current placement is appropriate or if and when another placement would be appropriate based upon the trial courtâs assessment of what is âbest suited to the safety, protection and physical, mental and moral welfare of the child.â 42 Pa.C.S. § 6351(g). In this case, the trial court considered the various factors of § 6351(f), even if it failed to itemize its findings, and concluded that reunification remained the appropriate placement goal. The court then provided the reasons for its conclusion. As discussed above, those reasons are supported by the record developed at the permanency hearing. While the record could also have supported a decision to grant the goal change, we conclude that
We additionally note that the trial courtâs decision does not prevent concurrent planning, as alleged by Appel-lees.
For the reasons stated, we hold that the Superior Court erred in concluding that the trial court abused its discretion in denying CYFâs goal change motion. We reinstate the order of the trial court denying the goal change and remand to the trial court for further proceedings in this matter.
Chief Justice CASTILLE, Justices EAKIN, TODD and McCAFFERY join the opinion.
Justice SAYLOR files a concurring and dissenting opinion.
Justice ORIE MELVIN files a dissenting opinion.
. The trial court did not make a specific finding regarding the number of foster homes in
. Father was incarcerated for most of 2008 and released in late September 2008.
. Although not emphasized by the trial court, Mother, Father, and the court appointed psychologist testified that CYF provided conflicting signals to Parents, instructing them to attend marriage counseling but also faulting Parents for violating the PFA in their attempts to receive marriage counseling. N.T. at 168â 169 (summarizing prior testimony).
. According to the records before this Court, generally, the trial court granted Mother visitation for approximately six hours per week over the course of Child's placement. Father has had more limited visits, especially during his incarceration. Additionally, Childâs paternal grandmother had regular visits with Child.
.On May 25, 2007, the court ordered Father to pay for a deputy sheriff to be present at each of his supervised visits with Child, scheduled for twice a month, apparently due to threats Father made against CYF workers. Presumably, the order did not apply when Father was incarcerated in 2008. Furthermore, the trial court lifted the requirement of a deputy sheriffâs presence in its January 23, 2009 order, based upon the court-appointed psychologist's recommendation to that effect. N.T. at 23.
. We note that the trial courtâs permanency review order of August 15, 2008 indicated that a "goal change" would be discussed at the January 2009 permanency hearing. Although the relevant statutory provisions do not reference the phrase "goal change,â the parties and the courts in this case and numerous prior cases use the phrase as a term of art. Moreover, the concept of a "goal changeâ is consistent with 42 Pa.C.S. § 6351(g), which requires the trial court, at the conclusion of a permanency hearing, to "order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child.â We conclude that an order to continue, modify, or terminate the current placement, as required by the statute, is synonymous with a decision to continue or change the permanency plan goal. Accordingly, we will use the terminology of "goal changeâ as it has developed in case law and is employed in common parlance.
. This Court has never addressed allocation of the burden of proof in a goal change scenario. The parties do not challenge this premise, and so we accept it for purposes of this matter, without critically assessing it.
. In full, 42 Pa.C.S. § 6351(f) provides:
(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 the child.
(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.
(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the Commonwealth, whether the placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child.
(8) The services needed to assist a child who is 16 years of age or older to make the transition to independent living.
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the childâs parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child; or
(iii) the childâs family has not been provided with necessary services to achieve the safe return to the child's parent,*1186 guardian or custodian within the time frames set forth in the permanency plan.
. We acknowledge that the Superior Court has long held that a goal change releases an agency from the obligation to supply additional reunification services, absent a contrary court order. Moreover, we recognize that public policy supports the Superior Courtâs position given the need to channel limited agency resources to services that will
. 42 Pa.C.S. § 6351(f.l) provides as follows:
(f.l) Additional determination.âBased upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
(1) If and when the child will be returned to the childâs parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the childâs parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian in cases where the return to the childâs parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(4) If and when the child will be placed with a fit and willing relative in cases where return to the childâs parent, guardian or custodian, being placed for adoption or being placed with a legal custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the childâs parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and willing relative.
. See supra at 1186 n. 9 for full text of 42 Pa.C.S. § 6351(f).
. Appellees also assert that the trial court erred in not addressing each of the factors of subsection (f) and (f. 1). Initially, we note that our grant of review does not encompass that question, because we granted to determine whether the Superior Court erred and the Superior Court did not base its decision on the absence of the trial courtâs discussion of the other subsection (f) and (f.l) factors. Moreover, we observe that the trial court, in its opinion, implicitly addressed many of the factors of subsection (f) regarding the appropriateness and feasibility of the current placement, plan, and goal and the progress made toward that goal. See 42 Pa.C.S. § 635 l(f)(9)(lâ4). Additionally, we do not fault the trial court for not engaging in the nonsensical task of commenting on subsections (f)(7), relating to children in placement outside the Commonwealth, and (f)(8) relating to children over the age of sixteen, as no party asserts that either subsection applies even remotely to this case. We recognize that the trial court could have made specific findings regarding some of the additional subsection (f) and (f.l) factors and encourage trial courts in the future to make findings on the record regarding factors pertinent to the case being decided. We note that the practical effect of this opinion, which reinstates the trial courtâs order denying the goal change, and Mr. Justice Saylorâs concurring and dissenting opinion, which advocates vacating the Superior Courtâs order and remanding to the trial court, both result in placing the case before
. Notably, Appellees assert that concurrent planning "requires a goal change to adoption with ongoing services to the parents.â Brief of KidsVoice at 19. Indeed, the opposite is true. As we noted in In re S.E.G., "[A] construction of Section 6351(f) and (f.l) to allow agencies to file termination petitions while still providing services under a plan maintaining reunification as the childâs permanency goal comports with ASFAâs provision encouraging concurrent planning.â In re S.E.G., 901 A.2d at 1028. Concurrent planning, thus, does not require a goal change to adoption.
. We observe that the Administrative Office of Pennsylvania Court's Office of Children and Families in the Courts recently published a comprehensive benchbook for use by the bench and bar addressing issues of dependency. Administrative Office of Pennsylvania Courtâs Office of Children and Families in the Courts, Pennsylvania Dependency Benchbook (2010). The Benchbook recommends concurrent planning as a "best practice.â Id. § 10.4 at 96. Additionally, the Benchbook urges courts and agencies to combine hearings for permanency plan goal change and termination of parental rights petitions because the evidence presented at both hearings overlaps substantially such that a single hearing is more efficient. Id. § 11.3 at 120. Moreover, a combined hearing provides for a single appeal, allowing for faster permanency for the child.