J-S47002-23
2024 PA Super 88
IN THE INTEREST OF: Z.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: T.B. : : : : : No. 2248 EDA 2023
Appeal from the Order Entered August 30, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-DP-0072802-2009
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: T.B. : : : : : No. 2249 EDA 2023
Appeal from the Order Entered August 30, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-DP-0000484-2022
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED APRIL 29, 2024
T.B. (“Former Guardian”) appeals from the August 30, 2023
permanency review orders that removed her as a reunification resource for
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S47002-23
two minor children, A.B. (DOB: 01/2007) and Z.B. (DOB: 04/2009).1 Upon
review, we affirm.
The Philadelphia Department of Human Services (“DHS”) first became
involved with this family in July 2009 when S.B. (“Mother”) left Z.B. at her
paramour’s home and never returned. Order for Protective Custody, 7/18/09.
Shortly thereafter, protective custody was lifted and Z.B. returned to Mother.
In 2012, Former Guardian was awarded permanent legal custody (“PLC”) 2 of
the children in Delaware County, Pennsylvania. Dependency Petition,
7/27/22, ¶ 5(b).
1 The parental rights of the biological parents have not been terminated and
they remain parties to the dependency action.
2 In a dependency action, permanent legal custody “may be a permanency goal when a caregiver makes a commitment to accept legal responsibility to raising the child, but is unwilling or unable to adopt the child.” See Pennsylvania Child Welfare Resource Center Permanent Legal Custody Handout https://www.pacwrc.pitt.edu/Curriculum/209_CncrrntPlnnng1/Hndt s/HO09_PrmnntLglCstdy.pdf (last visited March 28, 2024). “This is an arrangement whereby a juvenile court discontinues court intervention as well as supervision by a county agency, and awards custody of a dependent child, on a permanent basis, to a custodian. Parental rights are not terminated.” In re S.H., 71 A.3d 973, 977-78 (Pa. Super. 2013), appeal denied, 80 A.3d 778 (Pa. 2013) (emphasis added).
In a typical dependency case, the goal is reunification which provides the biological parent(s) an opportunity to correct the issues which led to dependency and ultimately regain custody of the child. Here, PLC is a de facto parent who may also be subjected to dependency proceedings, and the goal of reunification may also be considered. The term “reunification resource,” as used here, is meant to refer to the attempt to reunify the children with the Former Guardian.
-2- J-S47002-23
On April 19, 2022, DHS received a general protective services (“GPS”)
report which alleged numerous issues regarding Former Guardian’s ability to
care for the children. Id., ¶ 5(c). Significantly, it was alleged that the children
had poor hygiene and it was unknown if the children’s educational needs were
being met and when they last received medical or dental care. Id. It was
further alleged that Former Guardian suffered from untreated mental health
issues and the reporting source was concerned that her behavior could
escalate if the Philadelphia Police Department conducted a welfare check. Id.
DHS visited the home the same day. Id., ¶ 5(d). Z.B. answered behind
a locked security door and was home alone because Former Guardian took
A.B. to the store an hour earlier. Id. DHS observed that Z.B.’s clothing was
stained, her hair was unkempt, she was delayed in her responses, and she
displayed poor eye contact. Id. Z.B. did not have a telephone number for
Former Guardian and did not know what to do if there was an emergency. Id.
Also on the same day, DHS received additional allegations that the
children were not allowed outside of the home and friends and family were
not allowed inside the home. Id., ¶ 5(e). Additionally, it was alleged that
Former Guardian has stated for several years that the police and FBI are
coming after her, and that the children may believe it. Id. DHS spoke with
Former Guardian on the telephone who denied the allegations and stated the
children’s fathers are after her and that they cut her car seats.3 Id., ¶ 5(f). ____________________________________________
3 We note that the children were 14 and 16 years old when Former Guardian
made this statement.
-3- J-S47002-23
Former Guardian agreed to meet with DHS on the porch, but would not allow
DHS to enter the home. Id., ¶ 5(g).
Former Guardian admitted the children were not doing well
academically, but denied that they were truant. Id., ¶ 5(h). She also
admitted that the children have not received medical or dental care because
she was afraid of being followed to the doctor’s office. Id. The children were
last seen by a dentist in May 2015. Id. She informed DHS that the children
slept on air mattresses because the home was once infested with bedbugs.
Id. Former Guardian refused DHS’s assistance in acquiring appropriate beds
for the children, as well as housing assistance. Id. During the conversation,
Former Guardian commented that DHS was just an extension of the district
attorney’s office that refused to investigate her claims. Id. When asked to
prioritize the children’s needs, Former Guardian stated that her litigations took
precedence. Id.
On May 19, 2022, DHS filed a motion to compel Former Guardian’s
cooperation with the investigation because she refused DHS access to the
home to assess the safety and well-being of the children. On May 31, 2022,
the court granted the motion and ordered Former Guardian to allow a home
assessment within 48 hours. Additionally, a hearing was scheduled for June
29, 2022.
Former Guardian’s home was assessed by DHS on June 2, 2022, who
observed holes in the dining room and kitchen ceilings and noted that there
was no gas service. Id., ¶ 5(n). Former Guardian was fixated on her criminal
-4- J-S47002-23
complaints, stalking allegations, and a medical malpractice lawsuit, and
requested DHS to detain the people harassing her. Id. Former Guardian was
more concerned with the children’s “safety” from the “illegal surveillance” than
their medical needs. Id. She refused to sign a release for her prior mental
health treatment, to undergo a mental health evaluation and to identify a
resource for a safety plan. Id. Former Guardian told DHS not to return to
her home. Id. DHS spoke with the children who confirmed that they rarely
leave the home, and no one visits them. Id.
On June 21, 2022, DHS attempted a home visit, but were denied access.
Id., ¶ 5(q). The children spoke with DHS alone on the porch, but were given
notepads and instructed to take notes about the questions asked. Id. Both
children disclosed that they do not have contact with any family or friends
because it would cause legal troubles. Id. The children attended school
virtually and failed all their classes. Id.
Following a hearing on June 29, 2022, the court ordered Former
Guardian to comply with DHS and Community Umbrella Agency (“CUA”) to
ensure the children’s medical care is current. The court further ordered the
children and Former Guardian to appear at the next court date. On July 14,
2022, Former Guardian did not attend the hearing and instead, sent A.B. with
a note that Former Guardian was unable to attend due to a medical condition.
Id., ¶ 5(u). The motion to compel was withdrawn and Former Guardian was
ordered to comply with DHS and CUA. Id.
-5- J-S47002-23
On July 27, 2022, DHS filed a dependency petition. Adjudication was
deferred on August 10 and August 17, 2022. On August 17, 2022, DHS went
to Former Guardian’s home after she missed the court hearing. Dependency
Petition, 8/24/22, at ¶ 5(f). Z.B. answered the door and called Former
Guardian, who instructed Z.B. to close the door. Id. Former Guardian then
called DHS and said she was hospitalized and left the children in the care of
an unidentified male friend. Id. Since DHS was unable to access the home,
it obtained an order for protective custody that included a break-down order.
Id., ¶ 5(i). DHS was ultimately able to gain entry with the assistance of police,
removed the children from the home and placed them in foster care.4 Id.
On August 22, 2022, a shelter care hearing was held5, wherein the order
for protective custody was lifted and the children were ordered to remain in
the temporary custody of DHS. Former Guardian was ordered to appear at
the next court date. Adjudication was deferred on September 14 and October
3, 2022. On October 31, 2022, the children were adjudicated dependent. The
trial court discharged Former Guardian’s PLC from Delaware County and
referred her to BHS for an evaluation and to comply with all recommendations.
The placement goal was reunification, and supervised visitation with Former
Guardian was at the children’s discretion. The January 18, 2023 permanency
4 DHS filed a supplemental dependency petition on August 24, 2022 to include
what occurred on August 17, 2022.
5 Former Guardian appeared via telephone.
-6- J-S47002-23
review hearing was continued due to unavailability of Former Guardian’s
counsel and the CUA.
A permanency review hearing was held on March 7, 2023, wherein the
court found Former Guardian was not compliant with her permanency plan
objectives and made no progress towards alleviating the circumstances that
brought the children into care. Visitation with Former Guardian remained at
the children’s discretion. The May 1, 2023 permanency review hearing was
continued because the city solicitor was unavailable.
A second permanency review hearing was held on July 19, 2023.
Former Guardian did not attend the hearing. At the outset, the court stated
its intention of addressing whether Former Guardian should remain a part of
the case and directed the city solicitor to subpoena her for the next hearing.
N.T., 7/19/23, at 6-7. James Allen, CUA case worker, testified that the
children are together in a therapeutic foster home and doing very well. Id. at
8, 21-22. Foster mother, D.A., expressed an interest in being awarded PLC
of the children, but did not want to pursue adoption. Id. at 10-11, 22.
Likewise, both children wish to reside with D.A. permanently and do not want
to reunify or have continuing contact with Former Guardian. Id. at 11, 14,
22, 29-31.
The permanency review hearing continued on August 30, 2023, wherein
the trial court incorporated the testimony from July 19, 2023. N.T., 8/30/23,
at 7. Mr. Allen spoke with the children again on August 8, 2023, and confirmed
that the children did not want to reunify or have any contact with Former
-7- J-S47002-23
Guardian. Id. at 11. Moreover, Former Guardian refused all services that
were offered, such as parenting classes, mental health treatment and BHS
services. Id. at 15-16. Significantly, Mr. Allen had not been inside Former
Guardian’s home since the children were removed in July 2022. Id. at 17. At
the conclusion of the hearing, the court removed Former Guardian as a
reunification resource, stating:
And let me be clear. With the kids no longer wanting to reunify, wanting PLC in their current home, and not even wanting to visit, I’m not even factoring in the fact that [Former Guardian] didn’t comply with any Single Case Plan objectives from CUA.
Id. at 31.
By order dated August 30, 2023, the court maintained the children’s
permanency goal of reunification and concurrent goal of permanent legal
custody with a non-relative.6 Legal and physical custody of the children
remained with DHS and the children remained in foster care. The order further
stated that the children do not wish to visit or reunify with Former Gurdian,
therefore, she was vacated as a reunification resource, as well as her court-
appointed counsel after 31 days. The next permanency review hearing was
scheduled for November 21, 2023.
On September 2, 2023, Former Guardian filed counseled notices of
appeal and concise statements of errors complained of on appeal, which this
6 PLC was added as a concurrent goal following the July 19, 2023 permanency
review hearing. See Permanency Review Order, 7/19/23.
-8- J-S47002-23
Court consolidated sua sponte. Former Guardian presents the following
questions for our review:
A. Whether the trial court erred when it vacated the legal guardian as a reunification resource for the child[ren] when the court goal remained reunification/return to guardian and/or parent and DHS did not ask or file for a change in goal?
B. Whether the trial court erred when it vacated court appointed counsel for the legal guardian, when the court goal remained reunification with guardian or parent and DHS did not ask or file for a change in goal?
Former Guardian’s Brief, at 5.
Before we address the merits, we must determine whether the orders
from which Former Guardian appealed are appealable as it implicates our
jurisdiction. See In Interest of N.M., 186 A.3d 998, 1006 (Pa. Super. 2018)
(citing Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000) (“[W]e lack
jurisdiction over an unappealable order, it is incumbent upon us to determine,
sua sponte when necessary, whether the appeal is taken from an appealable
order”)). “Jurisdiction is purely a question of law; the appellate standard of
review is de novo and the scope of review is plenary.” Interest of J.M., 219
A.3d 645, 650 (Pa. Super. 2019) (quoting Barak v. Karolizki, 196 A.3d 208,
215 (Pa. Super. 2018)).
Generally, only final orders are appealable. See Pa.R.A.P. 341(a). A
final order is one that disposes of all claims and all parties. See Pa.R.A.P.
341(b). However, there are three limited exceptions: (1) interlocutory appeal
as of right (Pa.R.A.P. 311); (2) interlocutory appeal by permission (Pa.R.A.P.
-9- J-S47002-23
312); and (3) a collateral order (Pa.R.A.P. 313). Dependency matters do not
end following a child’s disposition and the fact that further proceedings are
contemplated is not dispositive of the finality of the order. See J.M., 219 A.3d
at 651.
In the dependency context, this Court “must examine the practical
consequences of the order to determine if the party challenging it has
effectively been put out of court.” In re Interest of M.B., 565 A.2d 804, 806
(Pa. Super. 1989), appeal denied, 589 A.2d 692 (Pa. 1990). “Thus, . . . this
[C]ourt acknowledges certain crucial points of finality when review is
appropriate despite the fact that such determinations may be later modified
by the trial court after further statutorily mandated review hearings are held.”
Id. at 808. Specifically, our Supreme Court has held that “[a]n order granting
or denying a status change, as well as an order terminating or preserving
parental rights, shall be deemed final when entered.” In re H.S.W.C.-B., 836
A.2d 908, 911 (Pa. 2003).
Here, the orders did not grant or deny a status change – the goal
remained reunification throughout. PLC with a non-relative was added as a
concurrent goal on July 19, 2023, which was not appealed. The question is
whether the appealed orders effectively put Former Guardian out of court.
When Former Guardian was granted PLC in 2012, she obtained legal and
physical custody of the children. See 42 Pa.C.S.A. § 6357 (rights and duties
of legal custodian). The court vacated Former Guardian’s PLC on October 31,
- 10 - J-S47002-23
2022, thereby terminating her legal and physical custodial rights of the
children. As such, we must determine the effect of the October 31, 2022
orders on Former Guardian’s legal status in the dependency matters. While
standing was not specifically raised and this Court is precluded from raising it
sua sponte, it must be included in the analysis to reach our conclusion.
Generally, only a “party” has standing to participate in dependency
proceedings. See In the Interest of M.R.F., III, 182 A.3d 1050, 1055 (Pa.
Super. 2018). Our case law limits “party” status to three classes of persons:
(1) the biological parents of the child(ren); (2) the legal custodian of the
child(ren); and (3) the person whose care and control of the child(ren) is in
question. Id. Former Guardian is not a biological parent of the children and
was no longer the legal custodian. She was, however, the person whose care
and control of the children was in question at the dependency hearing.
Therefore, Former Guardian was considered a party.
As a party, Former Guardian is entitled to legal representation, the
opportunity to present evidence, cross-examine witnesses, and otherwise be
heard. See 42 Pa.C.S.A. §§ 6337, 6338. On August 30, 2023, the court
removed Former Guardian as a reunification resource and vacated her court-
appointed counsel. The orders effectively put Former Guardian out of court
as they removed her status as a “party”; therefore, we deem the August 30,
2023 orders to be final and appealable. See M.B., supra.
The standard of review in dependency cases is well-settled:
- 11 - J-S47002-23
[A]ppellate 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 . . . 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 determination of the trial court.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Here, Former Guardian asserts
that the court erred in finding that she is not a suitable reunification resource.
Without providing any citations, she argues that the court did not have the
authority to remove her as a reunification resource when the goal remained
reunification. Former Guardian’s Brief at 9. She “believes that as long as the
court goal is reunification, she should be offered an opportunity to reunify with
the children.” Id. at 10. We disagree.
Under the Juvenile Act, courts must conduct regular permanency
hearings to review the permanency plan of the child. See 42 Pa.C.S.A.
§ 6351(e). At each permanency hearing, the court must consider the
following, statutorily-mandated factors: (1) the continuing need 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
- 12 - J-S47002-23
the current placement goal for the child; (5) the likely date by which the
placement goal might be achieved; and (6) whether reasonable efforts were
made to finalize the permanency plan in effect. See 42 Pa.C.S.A. § 6351(f).
“When the child welfare agency has made reasonable efforts to return a foster
child to his or her biological parent, but those efforts have failed, then the
agency must redirect its efforts toward placing the child in an adoptive home.”
In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006).
There is no law defining “reasonable efforts,” however, our case law
indicates:
Because the focus of the Juvenile Act is on the dependent child, as opposed to parents, any services for parents must directly promote the best interests of the child. By requiring only reasonable efforts to reunify a family, the statute recognizes that there are practical limitations to such efforts. It is not sufficient for the court to find simply that an action will promote family reunification; the court must also determine whether the action constitutions a reasonable effort towards reunification. This Court has stressed that the agency is not expected to do the impossible and is not a guarantor of the success of the efforts to help parents assume their parental duties.
In Interest of C.K., 165 A.3d 935, 942 (Pa. Super. 2017) (internal citations
and quotations omitted).
Although preserving the family unit is a purpose of the Juvenile Act,
“[t]he necessary implication of the Juvenile Act is that a parent who cannot or
will not meet the irreducible minimum requirements . . . within a reasonable
time following state intervention may properly be considered “unfit,” and may
properly have parental rights terminated.” In re J.W., 578 A.2d 952, 958
- 13 - J-S47002-23
(Pa. Super. 1990). “[P]arents are required to make diligent efforts toward the
reasonably prompt assumption of full parental responsibilities.” Id. at 959.
We think this affirmative duty, at a minimum requires a showing by the parent of a willingness to cooperate with the agency to obtain the rehabilitative service necessary for the performance of parental duties and responsibilities. The agency must, of course, put forth a good faith effort in making services available to the parent, and once it has done so on a continuing basis, it has discharged this obligation.
Id. (citing In re Adoption of J.J., 515 A.2d 883, 890 (Pa. 1986)) (emphasis
in the original).
While these principles are specific to a biological parent, we see no
reason why they should not apply to a person who was awarded permanent
legal custody. If a parent must make diligent efforts toward reunification,
which at a minimum is cooperating with the agency, then it follows that a
person with PLC whose care, custody and control of the children is in question
must also make diligent efforts toward reunification. If a biological parent
fails to make diligent efforts, then the court has the authority to end
reunification services and terminate their parental rights. See J.W., supra.
However, the court cannot terminate parental rights where they do not exist.
What it can do is remove the person as a reunification resource and terminate
services.
Here, after considering the factors enumerated in Section 6351(f), as
set forth above, the court concluded there was clear and convincing evidence
- 14 - J-S47002-23
to warrant the removal of Former Guardian as a reunification resource.7 See
Trial Court Opinion, 10/2/23, at 2. The primary reason is that the children,
ages 14 and 16, adamantly expressed on numerous occasions that they did
not want to reunify with Former Guardian. As discussed at length above, the
children were removed from Former Guardian’s care because she neglected
the children’s medical, dental, educational and social needs. Additionally,
there are significant concerns regarding Former Guardian’s mental health and
her ability to care for the children.
Moreover, Former Guardian was uncooperative throughout the
dependency proceedings. She refused to allow DHS in her home to assess
the safety and well-being of the children. She admitted that the children were
medically and educationally neglected, yet was more concerned about her
lawsuits and whether she was being followed. Due to her lack of cooperation,
DHS was forced to obtain a break-down order to remove the children. She
refused all services DHS offered and prohibited DHS from entering her home.
Serious safety concerns for the children continue to exist in the home and
Former Guardian does not have the ability to meet the basic needs of the
children. Therefore, the court found Former Guardian was not compliant with
her permanency objectives and made no progress towards alleviating the
circumstances that brought the children into care. ____________________________________________
7 No party has challenged the court employing a burden of proof by clear and
convincing evidence. We accept, without deciding, the burden of proof used by the court, even if a lesser burden of proof would be the standard, as any error in this regard would be harmless in this appeal.
- 15 - J-S47002-23
Accordingly, we find the court did not abuse its discretion in determining
Former Guardian was not a viable reunification resource, effectively removing
her from the case. See R.J.T., supra. Additionally, we note that the parental
rights of the biological parents have not been terminated and are parties in
the dependency matter. As such, reunification remains an appropriate goal
because a biological parent could potentially reunite with the children.
Therefore, Former Guardian’s argument that she must be given an opportunity
to reunite with the children because the goal remained reunification is
misplaced; the reunification goal remained with a parent, not with her as the
PLC.
Further, Former Guardian’s argument that the court could not remove
her as a reunification resource because DHS did not file for a goal change is
without merit. The court can review the appropriateness of the goal sua
sponte, provided it gives the party notice, which it did at the previous
permanency review hearing on July 19, 2023. See Appellee’s Brief at 11
(citing Pennsylvania Dependency Benchbook, § 14-2); see also N.T.,
7/19/23, at 7, 31. Thus, Former Guardian had more than 15 days’ notice that
she may be removed as a resource at the permanency review hearing on
August 30, 2023, and no procedural error occurred.
Finally, Former Guardian also asserts that the court erred when it
vacated the appointment of counsel for Former Guardian. We disagree. The
court directed the vacation occur 31 days after entry of the order, recognizing
that Former Guardian was entitled to counsel if she chose to appeal. Former
- 16 - J-S47002-23
Guardian is represented by counsel for this appeal. As discussed above, any
rights to custody, care or control of the children were removed, as was her
position as a party. Since she is no longer a party to the dependency matter,
Former Guardian is not entitled to court-appointed counsel beyond the direct
appeal process. See Pa.R.J.C.P. 1151(E). As a result, the court properly
vacated counsel’s appointment.
Order affirmed. Jurisdiction relinquished.
Date: 4/29/2024
- 17 -