J-A25028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: CITY OF PHILADELPHIA, : DEPARTMENT OF HUMAN SERVICES : (DHS) : : : : No. 124 EDA 2017
Appeal from the Order Entered November 21, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002329-2016, FID# 51-FN-002248-2016
BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED OCTOBER 02, 2017
The City of Philadelphia, Department of Human Services (DHS)
appeals from the order entered November 21, 2016, in the Court of
Common Pleas of Philadelphia County, adjudicating G.S., a Minor (Child),
dependent, and declining to find that DHS made “reasonable efforts” to
prevent or eliminate the need for placement.1, 2 DHS maintains (1) the trial
____________________________________________
Former Justice specially assigned to the Superior Court.
1 DHS is an aggrieved party with standing to appeal. See In the Interest of K.C., 156 A.3d 1179, 1182–1183 (Pa. Super. 2017). Furthermore, we agree with DHS’s position that the order is a collateral order appealable pursuant to Pa.R.A.P. 313. See DHS’s Brief at 1-2 (“Statement of Appellate Jurisdiction”).
2 In light of the Supreme Court’s admonishment of this Court in regard to delays in Fast Track cases, see In re T.S.M., 71 A.3d 251, 261 n.21 (Pa. (Footnote Continued Next Page) J-A25028-17
court erred as a matter of law in applying the wrong legal standard for
“reasonable efforts”, and (2) the trial court erred as a matter of law in
holding that the record did not support an order finding that DHS made
“reasonable efforts.” We agree and, therefore, we vacate the order in part,
and remand with instructions.
As a result of a General Protective Services report received by DHS on
October 18, 2016, alleging physical abuse by Child’s mother, DHS obtained
an order of protective custody for Child.3 Order of Protective Custody,
10/20/2016. The judge granting the order found, inter alia, that
“appropriate reasonable efforts to prevent placement were made, or that
preventative services were not offered due to the necessity for an
emergency placement and that the lack of services was reasonable under
the circumstances.” Id. On October 21, 2016, a shelter care hearing was
held, and the trial court approved the Master’s recommendation that found
DHS made reasonable efforts to prevent or eliminate the need for removal of
_______________________ (Footnote Continued)
2013) (stating that “repeated delays” were not fully explained), it is important to state here that this case has been delayed for panel listing because the Philadelphia Court of Common Pleas sent the certified record to this Court well past the due date. The certified record was due in this Court by January 19, 2017. Despite ongoing efforts by this Court to obtain the certified record, the certified record was not received until June 23, 2017. As a result, the briefing schedule was delayed by six months, solely on the basis of the late submission of the certified record. It bears mention DHS requested and received a short 7-day extension of time to file its brief.
3 Child was fifteen years of age and in tenth grade. See N.T., 11/21/2016, at 13, 17.
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the Child. See Master’s Recommendation for Shelter Care and Order,
10/21/2016. On November 21, 2016, following an adjudicatory hearing, the
trial court adjudicated G.S. dependent. The trial court further found that
DHS “made NO reasonable efforts to prevent or eliminate the need for
removal of this child from the home.” Order of Adjudication and Disposition
— Dependent, 11/21/2016, at 1.
On December 15, 2016, DHS filed a petition for reconsideration
regarding the “reasonable efforts” finding4 and, on December 20, 2016, DHS
filed this timely appeal, together with a Pa.R.A.P. 1925(b) statement.
Our standard of review 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.
In re E.P., 841 A.2d 128, 131 (Pa. Super. 2003) (citation omitted).
At the adjudicatory hearing, documentation from Penn Medical
Emergency was provided to the trial court which indicated G.S. had suffered
4 The court did not rule on DHS’s motion for reconsideration.
-3- J-A25028-17
a concussion as a result of the physical altercation with her mother. N.T.,
11/21/2016, at 15. The DHS social worker testified that G.S. was due to
have a follow-up medical appointment but did not have the appointment due
to a disconnect with the Community Umbrella Agency (CUA) subcontractor.
See N.T., 11/21/2016, at 15–16, 20. At the hearing, the trial judge asked:
“How do I give you reasonable efforts when she came in with a concussion
that happened like a month ago? She still has not had a follow-up
appointment. Id. at 19. The trial court continued, “I believe that DHS
and/or the agency, has abdicated their responsibility to this young lady.”
Id. at 21. The trial court concluded: “[B]ecause of that, I cannot grant
reasonable efforts.” Id. at 23.
Relevant to this appeal, 42 Pa.C.S. § 6351(b) requires the court, prior
to any order of disposition that would remove a dependent child from his or
her home to determine, inter alia, “whether reasonable efforts were made
prior to the placement to prevent or eliminate the need for removal of the
child” or “if preventative services were not offered due to the necessity for
an emergency placement, whether such lack of services was reasonable
under the circumstances.” 42 Pa.C.S. § 6351(b)(2), (3). See Interest of
K.C., 156 A.3d 1179 (Pa. Super. 2017) (trial court abused its discretion at
dependency adjudicatory hearing when it applied the standard for
permanency hearing, 42 Pa.C.S. § 6351(f), rather than the standard for
adjudicatory hearings).
-4- J-A25028-17
In Interest of K.C., supra,
the trial court’s inquiry at the hearing with regard to whether reasonable efforts were made focused on whether DHS had made reasonable efforts to finalize a placement for K.C. The court did not discuss what efforts, if any, we made to “prevent or eliminate the need for removal of [K.C.] from his home,” nor did it determine whether this was an emergency placement and therefore “such lack of services was reasonable under the circumstances.” 42 Pa.C.S. §§ 6351(b)(2)(3).
Id. at 1184.
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J-A25028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: CITY OF PHILADELPHIA, : DEPARTMENT OF HUMAN SERVICES : (DHS) : : : : No. 124 EDA 2017
Appeal from the Order Entered November 21, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002329-2016, FID# 51-FN-002248-2016
BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED OCTOBER 02, 2017
The City of Philadelphia, Department of Human Services (DHS)
appeals from the order entered November 21, 2016, in the Court of
Common Pleas of Philadelphia County, adjudicating G.S., a Minor (Child),
dependent, and declining to find that DHS made “reasonable efforts” to
prevent or eliminate the need for placement.1, 2 DHS maintains (1) the trial
____________________________________________
Former Justice specially assigned to the Superior Court.
1 DHS is an aggrieved party with standing to appeal. See In the Interest of K.C., 156 A.3d 1179, 1182–1183 (Pa. Super. 2017). Furthermore, we agree with DHS’s position that the order is a collateral order appealable pursuant to Pa.R.A.P. 313. See DHS’s Brief at 1-2 (“Statement of Appellate Jurisdiction”).
2 In light of the Supreme Court’s admonishment of this Court in regard to delays in Fast Track cases, see In re T.S.M., 71 A.3d 251, 261 n.21 (Pa. (Footnote Continued Next Page) J-A25028-17
court erred as a matter of law in applying the wrong legal standard for
“reasonable efforts”, and (2) the trial court erred as a matter of law in
holding that the record did not support an order finding that DHS made
“reasonable efforts.” We agree and, therefore, we vacate the order in part,
and remand with instructions.
As a result of a General Protective Services report received by DHS on
October 18, 2016, alleging physical abuse by Child’s mother, DHS obtained
an order of protective custody for Child.3 Order of Protective Custody,
10/20/2016. The judge granting the order found, inter alia, that
“appropriate reasonable efforts to prevent placement were made, or that
preventative services were not offered due to the necessity for an
emergency placement and that the lack of services was reasonable under
the circumstances.” Id. On October 21, 2016, a shelter care hearing was
held, and the trial court approved the Master’s recommendation that found
DHS made reasonable efforts to prevent or eliminate the need for removal of
_______________________ (Footnote Continued)
2013) (stating that “repeated delays” were not fully explained), it is important to state here that this case has been delayed for panel listing because the Philadelphia Court of Common Pleas sent the certified record to this Court well past the due date. The certified record was due in this Court by January 19, 2017. Despite ongoing efforts by this Court to obtain the certified record, the certified record was not received until June 23, 2017. As a result, the briefing schedule was delayed by six months, solely on the basis of the late submission of the certified record. It bears mention DHS requested and received a short 7-day extension of time to file its brief.
3 Child was fifteen years of age and in tenth grade. See N.T., 11/21/2016, at 13, 17.
-2- J-A25028-17
the Child. See Master’s Recommendation for Shelter Care and Order,
10/21/2016. On November 21, 2016, following an adjudicatory hearing, the
trial court adjudicated G.S. dependent. The trial court further found that
DHS “made NO reasonable efforts to prevent or eliminate the need for
removal of this child from the home.” Order of Adjudication and Disposition
— Dependent, 11/21/2016, at 1.
On December 15, 2016, DHS filed a petition for reconsideration
regarding the “reasonable efforts” finding4 and, on December 20, 2016, DHS
filed this timely appeal, together with a Pa.R.A.P. 1925(b) statement.
Our standard of review 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.
In re E.P., 841 A.2d 128, 131 (Pa. Super. 2003) (citation omitted).
At the adjudicatory hearing, documentation from Penn Medical
Emergency was provided to the trial court which indicated G.S. had suffered
4 The court did not rule on DHS’s motion for reconsideration.
-3- J-A25028-17
a concussion as a result of the physical altercation with her mother. N.T.,
11/21/2016, at 15. The DHS social worker testified that G.S. was due to
have a follow-up medical appointment but did not have the appointment due
to a disconnect with the Community Umbrella Agency (CUA) subcontractor.
See N.T., 11/21/2016, at 15–16, 20. At the hearing, the trial judge asked:
“How do I give you reasonable efforts when she came in with a concussion
that happened like a month ago? She still has not had a follow-up
appointment. Id. at 19. The trial court continued, “I believe that DHS
and/or the agency, has abdicated their responsibility to this young lady.”
Id. at 21. The trial court concluded: “[B]ecause of that, I cannot grant
reasonable efforts.” Id. at 23.
Relevant to this appeal, 42 Pa.C.S. § 6351(b) requires the court, prior
to any order of disposition that would remove a dependent child from his or
her home to determine, inter alia, “whether reasonable efforts were made
prior to the placement to prevent or eliminate the need for removal of the
child” or “if preventative services were not offered due to the necessity for
an emergency placement, whether such lack of services was reasonable
under the circumstances.” 42 Pa.C.S. § 6351(b)(2), (3). See Interest of
K.C., 156 A.3d 1179 (Pa. Super. 2017) (trial court abused its discretion at
dependency adjudicatory hearing when it applied the standard for
permanency hearing, 42 Pa.C.S. § 6351(f), rather than the standard for
adjudicatory hearings).
-4- J-A25028-17
In Interest of K.C., supra,
the trial court’s inquiry at the hearing with regard to whether reasonable efforts were made focused on whether DHS had made reasonable efforts to finalize a placement for K.C. The court did not discuss what efforts, if any, we made to “prevent or eliminate the need for removal of [K.C.] from his home,” nor did it determine whether this was an emergency placement and therefore “such lack of services was reasonable under the circumstances.” 42 Pa.C.S. §§ 6351(b)(2)(3).
Id. at 1184. This Court found that because the hearing “was an
adjudicatory hearing where the court found K.C. dependent and removed
him from his home … [the] trial court was required to apply Section
6351(b)[.]” Id.
Here, just as in Interest of K.C., the court held an adjudicatory
hearing and found G.S. dependent and removed her from her home. The
court further determined DHS made “NO reasonable efforts.” Order of
Adjudication and Disposition — Dependent, 11/21/2016, at 1. In its opinion,
in addition to its reasoning stated at the adjudicatory hearing, namely, that
DHS failed to take Child for medical follow up treatment, the court also
stated that DHS failed to explore relatives or alternate placement resources,5
5 The statement in the trial court’s opinion that DHS did not explore relatives for placement is not supported by the record and is contradicted by the trial court’s own order. See N.T., 11/21/2016, at 15 (trial court stating, “Okay. As long as you made an effort to do [place Child in kinship care].”); Order, 11/21/2016, at 2 (finding DHS “did explore Family Members as Possible Placement/Kinship Resource to no Avail”).
-5- J-A25028-17
and failed to gather necessary information regarding mother’s parenting
classes. See Trial Court Opinion, 6/22/2017, at 2, 3. However, in light of
the “reasonable efforts” standard set forth at 42 Pa.C.S. § 6351(b), supra,
and explained in Interest of K.C., it is clear that all of the court’s
considerations are irrelevant to the preplacement “reasonable efforts”
determination, and that the trial court failed to apply the correct standard.
Therefore, we conclude the court’s determination constitutes an abuse of
discretion.
Next, DHS argues that the trial court erred as a matter of law in
holding that the record evidence did not support an order finding that DHS
made reasonable efforts to prevent or eliminate the need for placement of
the Child. Based on our review, we agree with DHS’s position that the
record reflects two prior orders in this case that include findings that DHS
made Section 6351(b) reasonable efforts, see Order of Protective Custody,
supra; Master’s Recommendation for Shelter Care and Order, supra,6 and
that the evidence presented at the adjudicatory hearing provided no grounds
that would warrant modification of the prior findings. Because the trial court
based its conclusion that DHS made “NO reasonable efforts” without regard
to the proper criteria under 23 Pa.C.S. § 6351(b), we conclude the court
erred as a matter of law in its “reasonable efforts” determination, and we ____________________________________________
6 The Shelter Care Order was signed by the same judge who made the “NO reasonable efforts” determination in the Order of Adjudication.
-6- J-A25028-17
remand to the trial court to enter a finding that DHS did make reasonable
efforts to prevent the placement of Child.7
Order vacated in part. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/2/2017
7 Notably, since the time the order in this case was entered in the trial court, three recent decisions involving the same judge who presided in this case have addressed this identical issue of the correct “reasonable efforts” standard. See In the Interest of K.C., supra; In the Interest of K.S., T.B., M.B., and N.B., 1662 EDA 2016, 2017 Pa. Super. Unpub. LEXIS 1194 (Pa. Super. Mar. 29, 2017) (unpublished memorandum) (trial court abused its discretion when it applied the incorrect standard, remanded to trial court and jurisdiction retained); In the Interest of K.S., T.B., M.B., and W.B., 1662 EDA 2016, 2017 Pa. Super. Unpub. LEXIS 2902 (Pa. Super. July 31, 2017) (unpublished memorandum) (dismissing appeals as moot in light of trial court’s order finding that D.H.S. had made reasonable efforts to prevent or eliminate removal of child from the home).
-7-