J-S10032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: PHILADELPHIA DEPARTMENT
OF HUMAN SERVICES
No. 1662 EDA 2016
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0015141-2005
IN THE INTEREST OF: T.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: THE CITY OF
PHILADELPHIA, DEPARTMENT OF
HUMAN SERVICES
No. 1677 EDA 2016
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-DP-0000921-2016
IN THE INTEREST OF: M.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: THE CITY OF
PHILADELPHIA, DEPARTMENT OF
HUMAN SERVICES
J-S10032-17
No. 1681 EDA 2016
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-DP-0000920-2016
IN THE INTEREST OF: N.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: THE CITY OF
PHILADELPHIA, DEPARTMENT OF
HUMAN SERVICES
No. 1684 EDA 2016
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-DP-0000922-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MARCH 29, 2017
Appellant, the City of Philadelphia Department of Human Services
(“DHS”), appeals from the orders of the family court adjudicating minors
K.S. (born 2000), N.B. (born January 2005), T.B. (born December 2005),
and M.B. (born 2007) (collectively, “the Children”) as dependent, but
declining to find that DHS had made “reasonable efforts” to prevent or
eliminate the need for placement. After determining that DHS has standing
to pursue the instant appeal, we vacate the orders below in part and remand
to the family court for proceedings consistent with this decision.
-2-
J-S10032-17
On March 11, 2016, DHS received a General Protective Services
(“GPS”) report alleging that the Children had been evicted from their home
sometime before Christmas 2015. Family Ct. Op., 8/10/16, at 1; N.T.,
4/27/16, at 8. The GPS report stated that K.S. had a learning disability, had
repeated grades due to ongoing truancy, and cried frequently; N.B., T.B.,
and M.B. had excessive truancy issues, as well.1 According to the GPS
report, the Children also suffered from malnourishment. At the time of the
GPS report, K.S. was living with his grandmother’s boyfriend and did not see
his mother, A.B. (“Mother”), often; and N.B., T.B., and M.B. were living with
Mother and her boyfriend in the boyfriend’s home. Mother and the Children
have had a history of transience — between October 2015 and April 2016,
Mother and the Children lived in seven different locations.
GPS reported that K.S. had not received a medical “well visit” since
2011, and T.B. and M.B. had not had a medical examination since 2012.
N.T. at 23, 38.2
____________________________________________
1
During the 2014-2015 school year, N.B. had 22 unexcused absences, T.B.
had 29 unexcused absences, and M.B. had 24 unexcused absences. During
the 2015-2016 school year, these figures increased — N.B. had 60
unexcused absences, T.B. had 56 unexcused absences, and M.B. had 52
unexcused absences. Family Ct. Op., 8/10/16, at 1-2.
2
The record is unclear as to N.B.’s medical history, but the family court
appears to find that she also has had no medical care since 2012. See N.T.
at 30, 32, 45.
-3-
J-S10032-17
Mother was unemployed, not active in the Children’s academics, and
failed to attend meetings at their schools. Family Ct. Op., 8/10/16, at 2.
The whereabouts of the Children’s fathers are unknown. Id.
On April 15, 2016, DHS filed petitions requesting that the family court
adjudicate the Children dependent. On April 27, 2016, the family court held
a hearing on the dependency petitions, during which DHS represented that
Mother had been “referred for parenting and other . . . services.” N.T. at 23.
At the conclusion of the hearing, the family court adjudicated the
Children dependent for truancy and neglect, later explaining that its “main
concern is to ensure the health, safety, and welfare of the children that
come before it” and that these dependency orders were “in the best interest
of the child as a result of testimony regarding the [C]hildren’s safety,
protection, mental and physical welfare.” Family Ct. Op., 8/10/16, at 4-5.
The family court also ordered that each of the Children receive a medical
examination within 48 hours.
In each of the Children’s written dependency orders, dated April 27,
2016, the family court stated: “[T]he Court hereby finds that to allow this
child to remain in the home would be contrary to the child’s welfare, and
that the Philadelphia Department of Human Services made NO Reasonable
Efforts to prevent or eliminate the need for removal of this child from the
home.” Family Ct. Orders, 4/27/16 (emphasis in original).
-4-
J-S10032-17
The family court later clarified that during the more than five weeks
between the GPS report and the adjudicatory hearing, as well as during the
12 days between the filing of the dependency petitions and the hearing,
“DHS had ample time to plan for appropriate placement.” Family Ct. Op.,
8/10/16, at 4 (citing N.T. at 10, 16). The family court continued:
Regrettably, DHS’s failure to identify planned placement in
a timely manner resulted in an emergency placement. An
emergency placement could have been avoided, since DHS
has ample notice as early as March 11, 2016, regarding
the urgency of the conditions the[ C]hildren had been
subjected. Instead, DHS put the well-being of the
[C]hildren at risk, and did not make their placement its
paramount concern.
The [family c]ourt finds that DHS’s efforts to appropriately
place these four children came far too late. The [family
c]ourt was clear in its final determination that DHS did not
make reasonable efforts to make or finalize a permanency
plan for the [C]hildren in a timely manner. DHS has
abdicated its responsibility to ensure immediate safety of
all of these [C]hildren, and as such, this [family c]ourt
acted properly by finding “no reasonable efforts” for the
DHS agency. . . .
For the preceding reasons, the Court finds the Department
of Human Services failed to meet [its] statutory burden by
clear and convincing evidence regarding reasonable efforts
made by DHS to finalize a permanent plan[.]
Id. (citing N.T. at 10, 23-24, 30).
On May 12, 2016, DHS filed a motion for reconsideration, requesting
that the family court “vacate its ruling of April 27, 2016 that [DHS] made no
reasonable efforts to prevent placement or eliminate the need for removal of
-5-
J-S10032-17
[the Children] from the home.” DHS Mot. for Recons., 5/12/16, at 3, ad
damnum clause. DHS explained:
According to Section 472(a)(2)(A) of the Social Security Act,[3] it
is required that the agency obtain a judicial determination that it
has made reasonable efforts (1) to maintain the family unit and
prevent the unnecessary removal of a child from the home or (2)
to make and finalize a permanency plan in a timely manner. . . .
If these “no reasonable efforts” findings are not vacated, DHS
will not receive any funding for these four children for the
duration of this case, thereby imposing a financial burden upon
the Department that is not reflective of the work done and
efforts made on this case.
DHS Mot. for Recons., 5/12/16, at 2 ¶¶ d, h (emphasis in original). On
May 16, 2016, the family court denied DHS’ motion.
On May 25, 2016, DHS filed four separate timely appeals from each of
the Children’s dependency orders. On June 15, 2016, this Court
____________________________________________
3
42 U.S.C. § 672(a)(2)(A):
(2) Removal and foster care placement requirements
The removal and foster care placement of a child meet the
requirements of this paragraph if—
(A) the removal and foster care placement are in accordance
with—
(i) a voluntary placement agreement entered into by a
parent or legal guardian of the child who is [a] relative . . . ;
or
(ii) a judicial determination to the effect that continuation
in the home from which removed would be contrary to the
welfare of the child and that reasonable efforts of the type
described in section 471(a)(15) [42 U.S.C. § 671(a)(15)
(describing efforts to preserve and to reunify families)] for a
child have been made[.]
-6-
J-S10032-17
consolidated the four appeals. On that same date, this Court entered a rule
to show cause within ten days as to why DHS had standing as an aggrieved
party to appeal these orders (in light of the fact that DHS’s dependency
petitions were granted by the family court), and why the appeal should not
be quashed. On June 27, 2016, DHS responded to the rule to show cause. 4
The next day, this Court entered an order discharging the rule to show cause
and referring the appeal to this panel for a decision on the merits; this
order, however, was not a final determination as to the propriety of the
appeal.
DHS now raises the following issues:
1) Whether [DHS] may properly appeal that portion of the
[family] court’s order[s] which denied that it made
reasonable efforts to prevent the placement of four
children, where the [family] court applied the incorrect
legal standard, where the facts do not support the [family]
court’s order[s] under the correct legal standard, and
where DHS faces significant financial penalties as a result
of the [family] court’s order.
2) Whether the [family] court erred as a matter of law in
applying an incorrect legal standard when determining
whether DHS made reasonable efforts to prevent or
eliminate the need for the placement of K.S., T.B., M.B.,
and N.B., minor children.
3) Whether the [family] court erred as a matter of law in
holding that the record evidence did not support []
order[s] finding that DHS made reasonable efforts to
____________________________________________
4
Ten days after the order of June 15, 2016, was Saturday, June 25, 2016.
Monday, June 27, 2016, was the next business day thereafter. Thus, DHS’
response was timely. 1 Pa.C.S. § 1908.
-7-
J-S10032-17
prevent or eliminate the need for the placement of the
Children, where the [family] court found that the Children
were dependent and where the [family] court ordered that
the Children must be removed from the home immediately
on an emergency basis.
DHS’s Brief at 4.5
In its first issue, DHS contends that it has standing to appeal. DHS’s
Brief at 13-20. DHS reasons that, notwithstanding the family court’s
decision to grant its dependency petitions, it remains an aggrieved party
because the court’s orders negatively affected the agency. DHS claims that
by finding that it failed to make reasonable efforts to prevent the Children’s
placement, “it will be rendered ineligible for federal reimbursement for foster
care maintenance payments made on behalf of the children.” Id. at 14.
Accordingly, DHS concludes that its appeal should be heard by this Court.
“Threshold issues of standing are questions of law; thus, our standard
of review is de novo and our scope of review is plenary.” Johnson v. Am.
Standard, 8 A.3d 318 (Pa. 2010) (citation omitted).
In Pennsylvania, the doctrine of standing at issue in this
matter is a prudential, judicially created principle designed
to winnow out litigants who have no direct interest in a
judicial matter. For standing to exist, the underlying
controversy must be real and concrete, such that the party
initiating the legal action has, in fact, been “aggrieved.”
As this Court explained . . . , “the core concept of standing
is that a person who is not adversely affected in any way
by the matter he seeks to challenge is not ‘aggrieved’
thereby and has no standing to obtain a judicial resolution
to his challenge.” A party is aggrieved for purposes of
____________________________________________
5
No other party filed a brief.
-8-
J-S10032-17
establishing standing when the party has a “substantial,
direct and immediate interest” in the outcome of litigation.
A party’s interest is substantial when it surpasses the
interest of all citizens in procuring obedience to the law; it
is direct when the asserted violation shares a causal
connection with the alleged harm; finally, a party’s interest
is immediate when the causal connection with the alleged
harm is neither remote nor speculative.
Com., Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014)
(citations and brackets omitted).
The issue of standing in this current appeal is analogous to that of In
the Interest of K.C., ___ A.3d ___, 2017 WL 727253 (Pa. Super. 2017).
DHS was also the appellant in K.C. and similarly appealed from an order of a
family court adjudicating a minor as dependent. Id. at *1. In that
dependency order, the family court stated that DHS had not made
reasonable efforts to prevent or to eliminate the need for placement. Id. at
*1-2. This Court observed:
Our Rules of Appellate Procedure provide:
Rule 501. Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by
statute, any party who is aggrieved by an appealable
order, or a fiduciary whose estate or trust is so
aggrieved, may appeal therefrom.
Pa.R.A.P. 501. “[A] party is ‘aggrieved’ when the party has
been adversely affected by the decision from which the
appeal is taken.” In re J.G., 984 A.2d 541, 546 (Pa.
Super. 2009), appeal denied, 605 Pa. 715, 991 A.2d 313
(2010) (citation omitted); see also In the Interest of
W.M., 41 A.3d 618, 620 (Pa. Super. 2012) (permitting
CYS appeal of no reasonable effort finding).
-9-
J-S10032-17
K.C., 2017 WL 727253 at *3. The Court concluded that “DHS has
demonstrated that it is an aggrieved party because the trial court denied it
the full relief requested, a finding of reasonable efforts, and because that
denial causes DHS to be ineligible for federal funding for the placement of
K.C.” Id. Since DHS in the current action was also denied the full relief that
it requested and faces the same consequences as in K.C., we similarly
conclude that DHS has standing to pursue the instant appeal.
DHS next claims that the family court “erred because it applied the
wrong legal standard when determining whether DHS made reasonable
efforts to prevent the placement of the Children.” DHS’s Brief at 20; see
also id. at 4, 20-36.
Our standard and scope of review in dependency cases
is well settled.
We must accept the facts as found by the trial
court unless they are not supported by the record.
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. We
review for abuse of discretion. Our scope of review,
accordingly, is of the broadest possible nature. It is
this Court’s responsibility to ensure that the record
represents a comprehensive inquiry and that the
hearing judge has applied the appropriate legal
principles to that record. Nevertheless, we accord
great weight to the court’s fact-finding function
because the court is in the best position to observe
and rule on the credibility of the parties and
witnesses.
- 10 -
J-S10032-17
K.C., 2017 WL 727253 at *3 (brackets and citation omitted).
According to DHS, the family court should have applied the standard
for placement findings under Section 6351(b) of the Domestic Relations
Code, 42 Pa.C.S. § 6351(b), but, instead, the family court applied the
standard applicable for permanency hearings under Section 6351(f), 42
Pa.C.S. § 6351(f). DHS’s Brief at 21-22. DHS insists that the trial court’s
finding of no reasonable efforts was unfounded because the court never
asked “whether DHS made reasonable efforts to prevent or eliminate the
need for” removing the Children from their home. Id. at 21. Instead,
according to DHS, the court applied an entirely different standard — whether
DHS “made reasonable efforts to finalize a permanent plan for the children.”
In support, DHS quotes a passage from the hearing before the trial court:
So, DHS, let’s just talk. I don’t know how I could give you all
reasonable efforts because it’s one thing if it’s one kid, we have
to do emergency placement and it comes as a surprise. It’s
another thing when it’s four and the report is so bad that you
guys had to have some indication that we were going to need
placement. At least — even if it’s a concurrent plan so the court
would have some options but like I can’t leave them with mom.
DHS’s Brief at 22 (quoting N.T. at 41). In DHS’s view, “Whether or not DHS
identified a permanent placement for the children is simply not the same
thing as whether DHS prevented or eliminated the need for the removal of
the children from their homes.” Id. at 24.
Section 6351 states, in pertinent part:
(b) Required preplacement findings.—Prior to entering
any order of disposition under subsection (a) that would
- 11 -
J-S10032-17
remove a dependent child from his home, the court shall
enter findings on the record or in the order of court as
follows:
(1) that continuation of the child in his home would be
contrary to the welfare, safety or health of the child;
and
(2) whether reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need
for removal of the child from his home, if the child has
remained in his home pending such disposition; or
(3) if preventive services were not offered due to the
necessity for an emergency placement, whether such
lack of services was reasonable under the
circumstances; or
(4) if the court has previously determined pursuant to
section 6332 (relating to informal hearing) that
reasonable efforts were not made to prevent the initial
removal of the child from his home, whether reasonable
efforts are under way to make it possible for the child to
return home; and
(5) if the child has a sibling who is subject to removal
from his home, whether reasonable efforts were made
prior to the placement of the child to place the siblings
together or whether such joint placement is contrary to
the safety or well-being of the child or sibling.
The court shall not enter findings under paragraph (2), (3)
or (4) if the court previously determined that aggravated
circumstances exist and no new or additional reasonable
efforts to prevent or eliminate the need for removing the
child from the home or to preserve and reunify the family
are required.
* * *
(e) Permanency hearings.—
(1) The court shall conduct a permanency hearing for the
purpose of determining or reviewing the permanency plan
- 12 -
J-S10032-17
of the child, the date by which the goal of permanency for
the child might be achieved and whether placement
continues to be best suited to the safety, protection and
physical, mental and moral welfare of the child. In any
permanency hearing held with respect to the child, the
court shall consult with the child regarding the child's
permanency plan, including the child's desired permanency
goal, in a manner appropriate to the child's age and
maturity. If the court does not consult personally with the
child, the court shall ensure that the views of the child
regarding the permanency plan have been ascertained to
the fullest extent possible and communicated to the court
by the guardian ad litem under section 6311 (relating to
guardian ad litem for child in court proceedings) or, as
appropriate to the circumstances of the case by the child's
counsel, the court-appointed special advocate or other
person as designated by the court.
* * *
(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.
* * *
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
42 Pa.C.S. § 6351.
In all four of its written orders adjudicating the Children dependent,
under the heading “Reasonable Efforts,” the family court wrote (capitalized
emphasis in original): “Further, the [c]ourt hereby finds that to allow this
- 13 -
J-S10032-17
child to remain in the home would be contrary to the child’s welfare, and
that the Philadelphia Department of Human Services made NO Reasonable
Efforts to prevent or eliminate the need for removal of this child from the
home.” When later justifying this determination, the family court stated that
it based its “no reasonable efforts” determination solely on DHS’s failure to
have a plan for placement of the Children prepared at their dependency
hearing. Family Ct. Op., 8/10/16, at 4 (citing N.T. at 10, 23-24, 30). The
family court asserted that “DHS had ample time to plan for appropriate
placement” but had “fail[ed] to identify planned placement in a timely
manner.” Id. (citing N.T. at 10, 16, 23-24, 30). The family court offered no
other basis for its holding. See id. at 4-5.
As set forth above, nothing in Section 6351(b), which governs
preplacement findings, requires a placement plan. Subsections 6351(e)-(f)
state that the court must review a plan, including “[w]hether reasonable
efforts were made to finalize the permanency plan in effect.” However,
subsections 6351(e) and (f) govern permanency hearings — not
dependency hearings. Thus, in the instant case, the family court’s
consideration of DHS’ reasonable efforts to create a permanency plan was
improper. Accordingly, we conclude that the family court did not apply the
appropriate standard and consequently abused its discretion; DHS’s second
issue thereby merits relief. See K.C., 2017 WL 727253 at *3.
- 14 -
J-S10032-17
Finally, DHS maintains that the family court “erred because on this
record, using the correct legal standard, DHS made reasonable efforts to
prevent the placement of the Children.” DHS’s Brief at 36. DHS continues:
For its part, the trial court did not identify or even consider the
possibility that there were any efforts, reasonable or otherwise,
that could have prevented the [C]hildren’s removal.11
11
Had the trial court used the correct legal standard,
this would also serve as a basis to hold that DHS met
the requirements of 42 Pa.C.S.A. § 6351(b)(3).
...
Even if this Court cannot find that DHS made reasonable efforts
based on this record, the matter should still be remanded to the
trial court with instructions to determine whether DHS made
reasonable efforts to prevent or eliminate the need for
placement under the correct legal standard, pursuant to Section
6351(b)(2). Barring this, and because the trial court itself was
adamant about the removal of the Child[ren], the trial court
could enter a finding under Section 6351(b)(3), that if
preventative services were not offered due to the necessity for
an emergency placement, whether such lack of services was
reasonable under the circumstances.
DHS’s Brief at 42. We agree.
“We must accept the facts as found by the trial court.” K.C., 2017 WL
727253 at *3. Nonetheless, the family court has made no findings pursuant
to 42 Pa.C.S. § 6351(b)(2)-(3); as explained above, it only commented on
the lack of a placement plan and said nothing about the reasonableness of
the efforts or services provided by DHS to prevent removal. Thus, we
remand for the family court to determine within thirty days “whether
reasonable efforts were made prior to the placement of the child to prevent
- 15 -
J-S10032-17
or eliminate the need for removal” or “for an emergency placement, whether
such lack of services was reasonable under the circumstances.” Id.6
We leave undisturbed the portion of the orders holding that the
Children are (1) dependent, (2) should receive a medical examination within
48 hours, and (3) must be removed from their pre-petition homes.
Notwithstanding our partial vacatur of the family court’s orders, the Children
shall not be returned to their pre-petition homes during the period that the
family court resolves the Section 6351 issue pursuant to our remand. We
note that no party has sought for the children to be returned, and we
therefore conclude that it is in the best interests of the children to maintain
the status quo while the family court acts on the remand.
Orders vacated in part. Case remanded. Jurisdiction retained.
Judge Dubow did not participate in the consideration or decision of this case.
____________________________________________
6
Both DHS and the family court clearly and repeatedly described the instant
action as “emergency foster care” or “an emergency placement.” N.T. at 23,
30, 40; Family Ct. Op., 8/10/16, at 4. Therefore, if ruling under (b)(3), the
appropriate determination for the family court should be “whether such lack
of services was reasonable under the circumstances” and not “whether
reasonable efforts were made.” See 42 Pa.C.S. § 6351(b)(2)-(3).
- 16 -
J-S10032-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
- 17 -
In the Interest of: K.S., a Minor
Combined Opinion