In the Int. of: S.K.P., a Minor Appeal of: C.P. (memorandum)

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J-S30017-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: S.K.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: C.P., MOTHER No. 2295 MDA 2013 Appeal from the Order Entered December 10, 2013 In the Court of Common Pleas of Centre County Juvenile Division at No(s): CP-14-DP-2-2011 IN THE INTEREST OF: E.J.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: C.P., MOTHER No. 2296 MDA 2013 Appeal from the Order Entered December 10, 2013 In the Court of Common Pleas of Centre County Juvenile Division at No(s): CP-14-DP-3-2011 IN THE INTEREST OF: T.M.P., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: C.P., MOTHER No. 2297 MDA 2013 Appeal from the Order Entered November 25, 2013 In the Court of Common Pleas of Centre County Juvenile Division at No(s): CP-14-DP-4-2011 J-S30017-14 BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED JUNE 06, 2014 Appellant, C.P. (Mother),1 appeals from the November 25 and December 10, 20132 orders terminating the dependency of her biological sons, S.K.P., T.M.P., and E.J.P., and transferring their legal and physical custody to Foster Mother, K.P., as their subsidized permanent legal custodian (SPLC). After careful review, we remand for proceedings consistent with this memorandum.3 We summarize the relevant factual and procedural history of this case as follows. On January 12, 2011, Centre County Children and Youth Services (CYS) filed petitions for emergency custody of S.K.P., T.M.P., and ____________________________________________ 1 appeal. 2 and 25, 2013. er in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that a notice of entry of 108(b). Herein, notice of entry of the order terminating was entered on November 25, 2013, while notice of entry of the orders terminating dependency was entered on December 10, 2013. We have adjusted the caption accordingly. 3 On Jan pursuant to Pennsylvania Rule of Appellate Procedure 513. -2- sua sponte, J-S30017-14 E.J.P., based upon allegations that Mother was administering her prescription sleeping pills to the boys.4 that same day. The trial court subsequently held a 72-hour/shelter care hearing on January 14, 2011. During that hearing, Robin Cain, a CYS caseworker, testified as to the underlying allegations and the drug testing 5 Following that hearing, the trial court placed S.K.P., T.M.P., and E.J.P. in foster care. On January 17, 2011, CYS filed dependency petitions for S.K.P., T.M.P., and E.J.P. Within those petitions, CYS outlined its history with the family, dating back to June 2005. The petitions addressed concerns about sisters, B.P. and F.P.6 CYS alleged F.P. and T.M.P. set fires within the alleged that, in February 2010, B.P. threatened to cut S.K.P. and E.J.P. with a knife she kept in her bedroom. Additionally, the petitions claimed that S.K.P. sent a sexually explicit email to over 500 school students in March ____________________________________________ 4 S.K.P., T.M.P., and E.J.P. were born in March 1999, July 2001, and January 2004, respectively. 5 We note the results of tests are absent from the certified record. 6 B.P. and F.P. are not subjects of the instant appeal. -3- J-S30017-14 2010 and that he was admitted into the Meadows Psychiatric Hospital for anger and aggression issues in December 2010. CYS also included the inistration of prescription medication to the boys. The trial court held a 10-day hearing on January 21, 2011. time, Cain testified as to the aforementioned allegations. At that Following that hearing, the trial court found S.K.P., T.M.P., and E.J.P. to be dependent children and adopted these allegations as facts. Adjudication and Disposition, 1/24/11. Trial Court Orders of The trial court transferred legal custody of S.K.P., T.M.P., and E.J.P. to CYS and placed the boys in foster care, with a placement goal of reunification with Mother. Id. The trial court held its initial permanency review hearing on June 13, 2011. At that hearing, Jennifer Hofe, a family reunification counselor for Family Intervention Crisis Services (FICS), testified. Hofe testified that own physical and mental health. Hofe testified that N.T., 6/13/11, at 5. Mother struggled with supervising the boys during her visits. Id. at 10-12. Hofe also testified that she was concerned Mother merely attended mental health counseling and did not actively participate in the counseling sessions to reap their benefits. Id. at 10, 20. Following that hearing, the trial court found that S.K.P., T.M.P., and E.J.P. remained dependent children. -4- Trial J-S30017-14 Court Initial Permanency Review Orders, 6/14/11. The trial court found that placement continued to be necessary and appropriate, that Mother moderately complied with the permanency plan, and that she had made no original placement because she had been working with reunification services for merely three months. Id. S remained reunification. Id. A second permanency review hearing was held on November 14, 2011. Another FICS reunification counselor, Emily Bumgarner, testified at that hearing. Bumgarner testified that Mother had visited regularly with the boys but noted Mother was tired during such sessions because she obtained a second job. N.T., 11/14/11, at 5-6. Bumgarner testified that during visits Mother brings food for the boys and engages them. Id. at 6-7. Yet, Bum Id. at 7-9. and substance abuse as she received a violation for driving under the influence in September 2011. Id. at 9-14. Following that hearing, the trial court found that S.K.P., T.M.P., and E.J.P. remained dependent children. Trial Court Permanency Review Orders, 11/17/11. The trial court found that placement continued to be necessary and appropriate, that Mother substantially complied with the permanency plan, and that she made -5- J-S30017-14 minimal progress towards alleviating placement. Id. the circumstances necessitating ment goals continued to be reunification. Id. On March 27, 2012, the trial court held a third permanency review hearing. At this hearing, CYS requested the change of S.K.P., T.M.P., and ving arrangement/long-term foster care. During this hearing, Bumgarner, Cain, and Father testified. Bumgarner testified that reunification services should communication and engagement with service providers. Id. at 13. Cain testified that, if reunification efforts ended, Mother would still visit with the boys twice a month. Id. at 32. Cain confirmed that S.K.P., T.M.P., and -appointed guardian ad litem (GAL) supported the change of the reunification goals. Id. at 34. Following that hearing, the trial court Review Orders, 3/27/12. The trial court found that the continued placement of S.K.P., T.M.P., and E.J.P. was necessary and appropriate, that Mother had minimally complied with the permanency plan, and that she made minimal progress towards alleviating the circumstances necessitating placement. Id. The trial court specifically found that Mother failed to fully address her mental health issues, continued to struggle with substance abuse, and declined to follow the recommendations of the FICS Team. Id. Of note, the -6- J-S30017-14 reunification to planned permanent living arrangement/long-term foster care because Mother failed to make substantial progress in alleviating the placement circumstances within 15 months of placement. Id. As reunification was no longer S.K.P., T.M.P., and Id. CYS explained that it and E.J.P. have a close relationship with Mother and with B.P. and F.P., who Id. A fourth permanency review hearing was held on August 24, 2012, at which time Father, and Janelle Miller, a CYS caseworker, testified. Miller testified that the boys were doing well in their placement and that Mother was seeing them two times a month. lot of turn- N.T., 8/24/12, at 5. Miller also Id. at 10. Following that hearing, the trial court continued S.K placement. Trial Court Permanency Review Orders, 8/27/12. The trial court found that Mother has been minimally compliant with the permanency plan -term nature of [her Id. The trial court issues [which] have historically had a negative impact on her ability to -7- J-S30017-14 Id. In addition to keeping S.K.P., T.M.P., -term foster care, the trial court added a concurrent placement plan of placement with a non-relative legal custodian. Id. On March 12, 2013, the trial court held a fifth permanency review hearing. Miller again testified that the boys were doing well in placement. N.T., 3/12/13, at 5. Miller testified that Mother was visiting with the boys more frequently than CYS mandated by communicating directly with Foster Mother. Id. at 6. Specifically, Mother was seeing the boys almost every week and was receiving phone calls from them. Id. at 5. Following that hearing, the trial court continued dependency and found that Mother had minimally complied with the permanency plan and had made minimal progress towards alleviating the circumstances necessitating placement -term nature of [her Permanency Review Order permanency goals remained at long-term foster care but their concurrent placement plan was changed to placement with a legal custodian (relative). Id.7 ____________________________________________ 7 It appears from a review of the hearing testimony that this concurrent placement change was erroneous as no testimony was received regarding a legal custodian who was related to S.K.P., T.M.P., and E.J.P. -8- J-S30017-14 On July 3, 2013, CYS petitioned to change S.K.P., T.M.P., an permanency goals from long-term foster care to SPLC. CYS recommended that the trial court award permanent legal custody to Foster Mother. The 2013.8 During the hearings, Joy Wiegand, the director of the family-based mental health program in State College for Keystone Human Services, Miller, Soo Jeong Youn, a graduate assistant and staff therapist at the Penn State Psychological Clinic, Mother, F.P., and B.P. testified. Following the hearings, schedule between Mother and S.K.P., T.M.P., and E.J.P. Trial Court Orders, 11/25/13. These visitation orders granted Mother one, three-hour visit with the boys each month. Id. Additionally, the trial court found S.K.P., T.M.P., and E.J.P. to be no longer dependent.9 Supervision Orders, 11/25/13 and 12/10/13. Trial Court Termination of Within these termination orders, the trial court granted Foster Mother the authority to authorize and ____________________________________________ 8 The trial court initially continued the August 16, 2013 hearing to October 30, 2013. Mother requested a continuance of the October 30, 2013 hearing, which the trial court granted. 9 We note that the trial court failed to enter an order specifically changing referenced this goal change within its November 25 and December 10, 2013 See Trial Court Termination of Supervision Orders, 11/25/13 and 12/10/13 (stating that the reason for been placed in the custody of a permanent legal custodian and services from [CYS] are no l -9- J-S30017-14 dental, and psychological/psychiatric care and to make decisions regarding their education. Id. Also within these orders, the trial court concluded, asonable efforts have been made by [CYS] to finalize [S.K.P., T.M.P., Id. On December 20, 2013, Mother filed these timely appeals concomitantly with her concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).10 On appeal, Mother presents the following issues for our review. I. Did the trial court err by failing to make the findings required by statute to support the appointment of a permanent legal custodian? II. Has [Mother] been unconstitutionally deprived of her right to make decisions concerning the care, custody, and control of her children? III. her sons to three hours per month of tightly regulated contact viola constitutional right to access to her children? We review an order granting permanent legal custody for an abuse of discretion. In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011). ____________________________________________ 10 The trial court filed its Rule 1925(a) opinion on January 14, 2014. goal change to SPLC. CYS filed its appellate brief on March 28, 2014. - 10 - On J-S30017-14 reviewing such a decision, we are bound by the facts as found by the trial best position to observe and rule on the credibility of the parties and Id., citing In re A.K., 906 A.2d 596, 599 (Pa. Super. 2006). and must order whateve Id. Id. Accordingly, we comprehensive inquiry and that the hearing judge has applied the Id. Juvenile Act[, 42 Pa.C.S.A. §§ 6301-6375,] which was amended in 1998 to of 199711 In re A.B., 19 A.3d 1084, 1088 (Pa. Super. 2011), citing In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006). [The] ASFA was enacted to combat the problem of one foster home to another, waiting for their parents to demonstrate their ability to care for the children. This drift was the unfortunate byproduct of the ____________________________________________ 11 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115. - 11 - J-S30017-14 biological parents, even in situations where it was clear that the parents would be unable to parent in any reasonable period of time. Following [the] ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons. In re T.S.M., 71 A.3d 251, 269 (Pa. 2013) (citations omitted). Initially, Mother claims that the trial court erred by failing to comply with Section 6351(f) of the Juvenile Act when it changed S.K.P., T.M.P., and ngement/longterm foster care to SPLC. Id. at 18-20. Specifically, Mother argues as follows. Following the November 22, 2013[] hearing, the [trial c]ourt made no determinations on any of the matters set forth in [S]ection 6351(f). Most significantly, the [trial c]ourt made no specific specific findings as to toward alleviating the circumstances which the trial court mentioned these statutory factors later in its Pa.R.A.P. 1925[(a)] opinion, it did so in reference only to determinations that had been made in past proceedings. Clearly, the trial court believed that it did not have to consider the factors enumerated in [S]ection 6351(f) when deciding whether to award permanent legal custody to [F]oster [M]other. - 12 - J-S30017-14 Id. at 18remand the matter so that the trial court may appropriately consider the Section 6351(f) factors. Id. at 19. For the following reasons, we agree.12 Section 6351 of the Juvenile Act outlines the procedures that a trial court must follow when both finding a child to be dependent and maintaining Section 6351 states, in pertinent part, as follows. § 6351. Disposition of dependent child. (f) Matters to be determined at permanency hearing. --At each permanency hearing, a court shall determine all of the following: ____________________________________________ 12 Both CYS and the GAL argue that Mother has waived her first issue by failing to include it within her Rule ments, 12/20/13, citing 42 Pa.C.S.A. § 6351. Within her appellate brief, Mother expanded upon this error, asserting that the trial court failed to consider the -20. The trial court opinion, concluding it was not required to address the Section 6351(f) factors when ordering SPLC because its prior analyses of these factors were incorporated by reference into the August 16 and November 22, 2013 hearings records. Trial Court Opinion, 1/14/14, at 5. 1925(b) statement fairly suggests her briefed issue, as evidenced by the See Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in questions involved and concise statement is deemed waived). - 13 - J-S30017-14 (1) The continuing necessity appropriateness of the placement. for and (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. (8.1) Whether the child continues to meet the continue jurisdiction pursuant to [S]ection 6302 if the child is between 18 and 21 years of age. (8.2) That a transition plan has been presented in accordance with [S]ection 475 of the Social Security Act (49 Stat. 620, 42 U.S.C. § 675(5)(h)). (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 - 14 - J-S30017-14 that reasonable efforts to prevent or eliminate the 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) provided with necessary services to achieve the safe or custodian within the time frames set forth in the permanency plan. For children placed in foster care on or before November 19, 1997, the county agency shall file or join a petition for termination of parental rights under this subsection in accordance with [S]ection 103(c)(2) of the [ASFA]. (10) If a sibling of a child has been removed from his home and is in a different placement setting than the child, whether reasonable efforts have been made to place the child and the sibling of the child together or whether such joint placement is contrary to the safety or well-being of the child or sibling. (11) If the child has a sibling, whether visitation of the child with that sibling is occurring no less than twice a month, unless a finding is made that visitation is contrary to the safety or well-being of the child or sibling. - 15 - J-S30017-14 at each review hearing concerning a child who has been adjudicated dependent and removed from K.J., supra (emphasis added). intervention as well as supervision by a county agency, and awards custody In re S.H., 71 A.3d 973, 978 (Pa. Super. 2013) (citation omitted), appeal denied, 80 A.3d local county children and youth agency. Id. Notably, when a trial court grants SPLC, parental rights are not terminated. Id. placement is not safe, and the physical, mental, and moral welfare of the child would best be served if [SPLC Id. this petition, the court must conduct a hearing and make specific findings focusing on the best interests Id. court must make numerous findings, most of which focus on the best In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004), citing court to make pertinent trial findings regarding - 16 - all of the enumerated J-S30017-14 Id. at 978 (concluding that the trial court erred by not addressing fully the Section 6351(f) factors and remanding for such consideration); accord In re R.C., 628 A.2d 893, 898-897 (Pa. Super. 1993). Additionally, before ordering SPLC S.H., supra; see also 42 Pa.C.S.A. § 6351(f.1). Herein, the trial court conducted a hearing to review S.K.P., T.M.P., Following these hearings, the trial court merely entered orders declaring S.K.P., T.M.P., and E.J.P. to be no longer dependent and terminating the on over the boys. See Trial Court Termination of Supervision Orders, 11/25/13 and 12/10/13. The trial court did not enter merely referenced that such changes had occurred. Id. These orders contained no factual findings upon which the trial court based its decision. See id. Id. As such, pri order facially addressing only one of the Section 6351(f) factors. Id.; see also 42 Pa.C.S.A. § 6351(f)(5.1). - 17 - J-S30017-14 that also neglected to address the Section 6351(f) factors. Likewise, the trial court declined to set forth findings of fact upon which it based its goal change decisions. Rather, the trial court addressed S.K.P., T.M.P., and paragraphs, and asserted that it need only consider the best interest of the children at this phase of the dependency proceedings. Trial Court Opinion, 1/14/14, at 4, citing B.S., supra. Yet, the trial court did cite, by name, the Section 6351(f) factors within its Rule that these factors supported the grant of SPLC to Foster Mother. Trial Court Opinion, 1/14/14, at 5. are of the utmost importance during a hearing where SPLC is requested, the trial court may not enter such an order granting SPLC and ending the ithout complying with Section 6351. See B.S., supra; R.C., supra; but see In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (concluding the trial court considered the Section 6351(f) factors when denying a goal change from reunification to adoption, despite its failure to itemize such conclusions). findings, when it provided the reasoning behind its Instantly, CYS requested the trial court to grant SPLC of S.K.P., T.M.P., and E.J.P. to Foster Mother. - 18 - This request resulted in the J-S30017-14 l rights. See S.H., supra. Yet, upon the and E.J.P. to a supervised period of three hours a month. This timeframe is also the only time designated for S.K.P., T.M.P., and E.J.P. to visit with their reasoning behind its decision to grant SPLC to Foster Mother in accordance such a ruling. Additionally, we note that, within the remainder of her appeal, Mother argues that this limited visitation schedule is a de facto termination of her -22. As clear and convin Id. at 20, citing Santosky v. Kramer, 455 U.S. 745, 769 (1982). A ruling in accordance with Section 6351(f) will further assist in our resolution of these claims.13 Our Su p In re T.S.M., 71 A.3d 251, ____________________________________________ 13 e to address her remaining issues at this time. - 19 - J-S30017-14 269 (Pa. 2013). Despite the need for the expeditious handling of dependency cases, we are unable to perform our appellate review until the trial court appropriately completes its duty. where we are loathe to pass judgment on something as precious and information that bears on this subject, we have a similar responsibility in a dispos R.C., supra at 897. as set forth in the underlying order and Rule 1925(a) opinion does not sufficiently address the Section 6351(f) factors. Accordingly, we remand this case to the trial court so that it may file a supplemental opinion to address filed no later than thirty days from the date of this decision. Case remanded for proceedings consistent with this memorandum. Panel jurisdiction retained. - 20 -

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