In the Interest of J.A., Appeal of: M.R.
Opinion
J-S05029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF J.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
APPEAL OF: M.R. :
:
:
:
:
: No. 1451 WDA 2018
Appeal from the Order Entered September 17, 2018 In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-0000095-2013
IN THE INTEREST OF K.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
APPEAL OF: M.R. :
:
:
:
:
: No. 1452 WDA 2018
Appeal from the Order Entered September 17, 2018 In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-94-2013
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J. MEMORANDUM BY NICHOLS, J.: FILED MAY 23, 2019 M.R. (Mother) appeals from the permanency review orders regarding her two minor daughters, K.R. (born November 2001) and J.A. (born January 2005) (collectively, the Children).1 We vacate the orders appealed from and
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* Retired Senior Judge assigned to the Superior Court. 1 C.A. (Father) has not appealed these orders.
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remand for a determination of whether good cause exists for the Children’s absence from the hearing.
We adopt the facts and procedural history set forth in the trial court’s opinion, which are supported by the record. See Trial Ct. Op., 11/2/18, at 1- 8. On April 11, 2017, CYS caseworkers filed petitions to involuntarily terminate the parental rights of Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(2), (8), and (b), and motions to change the Children’s permanency goals to adoption.2 Further permanency review hearings were convened in September 2017, March 2018, and September 2018.
At the conclusion of the permanency review hearings, the court entered an order finding (1) continued placement of the Children was necessary and appropriate; (2) that the Children had been consulted and wished to remain in placement;3 and (3) that there was no compliance with the permanency plan as to Mother because the termination hearing had been completed, but that the court was awaiting briefs from counsel prior to making its decision. See Order, CP-37-DP-94-2013, 9/17/18, at 1; Order, CP-37-DP-95-2013, 9/17/18, at 1. The orders also noted that the Children did not wish to visit with Mother, due to the lack of resolution regarding Mother’s understanding of abuse in their lives. Order, CP-37-DP-94-2013, 9/17/18, at 6; Order, CP-
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2 The termination petitions remain pending at the time of the instant appeal. 3 Although the Children’s counsel was present, the Children were not.
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37-DP-95-2013, 9/17/18, at 6. As of September 17, 2018, the Children’s primary placement goal was reunification with parent, with a concurrent placement goal of adoption.
Mother timely filed an appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues for our review:
[1]. Whether [CYS] failed to make children available to the [c]ourt as required and as mandated by the Child Protective Services Laws (CPSL)[?]
[2]. Whether [Mother] completed all services required by [CYS]
and the [c]ourt failed to apply the law to the facts of the case and return the children to [Mother?]
[3]. Whether [CYS] failed to provide any type of reunification counseling and generate a service plan to reunify [Children] with [Mother] considering that all other required services were completed by [Mother?]
[4]. Whether [CYS] failed to provide visits between [Mother] and [C]hildren, based solely on the alleged belief that one of the two children voiced her desire to not see [Mother] and [CYS] failed to provide competent evidence that there was any basis to deny [M]other visitation[?]
[5]. Whether the [c]ourt failed to take testimony from both children regarding their individual desire to reunify with [Mother]
thereby requiring the [c]ourt to make a decision as to both children based upon the unsubstantiated testimony of one child, while the other was withheld from the [c]ourt without justification[?]
Mother’s Brief at xxi-xxii.
Prior to reaching the merits of Mother’s issues, we must determine whether we have jurisdiction to decide the instant appeal. In particular, we
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must determine whether the orders in question—the permanency review orders of September 17, 2018—are appealable orders. CYS filed a motion to quash the instant appeal, arguing that the orders were not final and appealable. On December 13, 2018, this Court denied CYS’s motion without prejudice, to be re-raised before a merits panel or in a subsequent motion. As of the date of the filing of the instant memorandum, CYS has filed neither a brief nor a renewed motion to quash.
Because “we lack jurisdiction over an unappealable order[,] it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order.’” Gunn v. Auto. Ins. Co. of Hartford, Conn., 971 A.2d 505, 508 (Pa. Super. 2009) (citation and quotation marks omitted). It is well-settled that “[a]n appeal lies only from a final order, unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013); see generally Pa.R.A.P. 341(b). Here, because an “order granting or denying a status change, as well as an order terminating or preserving parental rights, [is] deemed final when entered,” we review the merits of the orders appealed from. See In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003).4 Accordingly, we review the merits of Mother’s appeal.
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4 In In re J.S., 795 A.2d 985 (Pa. Super. 2001), following a permanency review hearing, the trial court entered an order that “did not change the placement goal or order a change in custody.” In re J.S., 795 A.2d at 986-
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Initially, although her brief raises five issues, Mother’s arguments are intertwined and may be grouped into three categories. We summarize the first category as follows. Mother argues that the court failed to make the Children available to testify in court regarding their individual desire to reunify with Mother; she also challenges CYS’s alleged failure to provide competent evidence to that effect and CYS’s improper attempts to shift the burden of proof to Mother. See Mother’s Brief at 4-12. Mother claims that the Children’s presence is required by the CPSL and Rules of Juvenile Court Procedure. Id. at 4.5 Mother also avers that because the Children did not testify, the trial court could not make a reasoned opinion regarding the well-being, needs, or desired course of reunification of the Children. Id. at 11. She asserts that because of the lack of the Children’s testimony, CYS did not produce competent evidence that reunification was not an appropriate goal and that visitation should remain suspended. Id. at 4-11. In support, Mother cites to 237 Pa. Code 1128, Pa.R.J.C.P. 1128, Pa.R.J.C.P. 1129(a)(2), and the
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87. This Court quashed the appeal because the order maintained the status quo and was a non-appealable interlocutory order. Id. at 987. The Pennsylvania Supreme Court explicitly disapproved the reasoning of In re J.S., holding, “orders that are not status-changing have been regularly reviewed not only by the Superior Court, but also by this Court.” In re H.S.W.C.-B., 836 A.2d at 910 (citations omitted). 5 Mother did not cite to the particular provision within the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6385, that she claims supports her argument.
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Pennsylvania Dependency Benchbook, revised in 2014,6 to support her arguments. Id. at i-ii.
In dependency matters,
[t]he standard of review . . . requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
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J-S05029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF J.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
APPEAL OF: M.R. :
:
:
:
:
: No. 1451 WDA 2018
Appeal from the Order Entered September 17, 2018 In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-0000095-2013
IN THE INTEREST OF K.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
APPEAL OF: M.R. :
:
:
:
:
: No. 1452 WDA 2018
Appeal from the Order Entered September 17, 2018 In the Court of Common Pleas of Lawrence County Civil Division at No(s): CP-37-DP-94-2013
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J. MEMORANDUM BY NICHOLS, J.: FILED MAY 23, 2019 M.R. (Mother) appeals from the permanency review orders regarding her two minor daughters, K.R. (born November 2001) and J.A. (born January 2005) (collectively, the Children).1 We vacate the orders appealed from and
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* Retired Senior Judge assigned to the Superior Court. 1 C.A. (Father) has not appealed these orders.
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remand for a determination of whether good cause exists for the Children’s absence from the hearing.
We adopt the facts and procedural history set forth in the trial court’s opinion, which are supported by the record. See Trial Ct. Op., 11/2/18, at 1- 8. On April 11, 2017, CYS caseworkers filed petitions to involuntarily terminate the parental rights of Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(2), (8), and (b), and motions to change the Children’s permanency goals to adoption.2 Further permanency review hearings were convened in September 2017, March 2018, and September 2018.
At the conclusion of the permanency review hearings, the court entered an order finding (1) continued placement of the Children was necessary and appropriate; (2) that the Children had been consulted and wished to remain in placement;3 and (3) that there was no compliance with the permanency plan as to Mother because the termination hearing had been completed, but that the court was awaiting briefs from counsel prior to making its decision. See Order, CP-37-DP-94-2013, 9/17/18, at 1; Order, CP-37-DP-95-2013, 9/17/18, at 1. The orders also noted that the Children did not wish to visit with Mother, due to the lack of resolution regarding Mother’s understanding of abuse in their lives. Order, CP-37-DP-94-2013, 9/17/18, at 6; Order, CP-
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2 The termination petitions remain pending at the time of the instant appeal. 3 Although the Children’s counsel was present, the Children were not.
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37-DP-95-2013, 9/17/18, at 6. As of September 17, 2018, the Children’s primary placement goal was reunification with parent, with a concurrent placement goal of adoption.
Mother timely filed an appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues for our review:
[1]. Whether [CYS] failed to make children available to the [c]ourt as required and as mandated by the Child Protective Services Laws (CPSL)[?]
[2]. Whether [Mother] completed all services required by [CYS]
and the [c]ourt failed to apply the law to the facts of the case and return the children to [Mother?]
[3]. Whether [CYS] failed to provide any type of reunification counseling and generate a service plan to reunify [Children] with [Mother] considering that all other required services were completed by [Mother?]
[4]. Whether [CYS] failed to provide visits between [Mother] and [C]hildren, based solely on the alleged belief that one of the two children voiced her desire to not see [Mother] and [CYS] failed to provide competent evidence that there was any basis to deny [M]other visitation[?]
[5]. Whether the [c]ourt failed to take testimony from both children regarding their individual desire to reunify with [Mother]
thereby requiring the [c]ourt to make a decision as to both children based upon the unsubstantiated testimony of one child, while the other was withheld from the [c]ourt without justification[?]
Mother’s Brief at xxi-xxii.
Prior to reaching the merits of Mother’s issues, we must determine whether we have jurisdiction to decide the instant appeal. In particular, we
J-S05029-19
must determine whether the orders in question—the permanency review orders of September 17, 2018—are appealable orders. CYS filed a motion to quash the instant appeal, arguing that the orders were not final and appealable. On December 13, 2018, this Court denied CYS’s motion without prejudice, to be re-raised before a merits panel or in a subsequent motion. As of the date of the filing of the instant memorandum, CYS has filed neither a brief nor a renewed motion to quash.
Because “we lack jurisdiction over an unappealable order[,] it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order.’” Gunn v. Auto. Ins. Co. of Hartford, Conn., 971 A.2d 505, 508 (Pa. Super. 2009) (citation and quotation marks omitted). It is well-settled that “[a]n appeal lies only from a final order, unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013); see generally Pa.R.A.P. 341(b). Here, because an “order granting or denying a status change, as well as an order terminating or preserving parental rights, [is] deemed final when entered,” we review the merits of the orders appealed from. See In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003).4 Accordingly, we review the merits of Mother’s appeal.
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4 In In re J.S., 795 A.2d 985 (Pa. Super. 2001), following a permanency review hearing, the trial court entered an order that “did not change the placement goal or order a change in custody.” In re J.S., 795 A.2d at 986-
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Initially, although her brief raises five issues, Mother’s arguments are intertwined and may be grouped into three categories. We summarize the first category as follows. Mother argues that the court failed to make the Children available to testify in court regarding their individual desire to reunify with Mother; she also challenges CYS’s alleged failure to provide competent evidence to that effect and CYS’s improper attempts to shift the burden of proof to Mother. See Mother’s Brief at 4-12. Mother claims that the Children’s presence is required by the CPSL and Rules of Juvenile Court Procedure. Id. at 4.5 Mother also avers that because the Children did not testify, the trial court could not make a reasoned opinion regarding the well-being, needs, or desired course of reunification of the Children. Id. at 11. She asserts that because of the lack of the Children’s testimony, CYS did not produce competent evidence that reunification was not an appropriate goal and that visitation should remain suspended. Id. at 4-11. In support, Mother cites to 237 Pa. Code 1128, Pa.R.J.C.P. 1128, Pa.R.J.C.P. 1129(a)(2), and the
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87. This Court quashed the appeal because the order maintained the status quo and was a non-appealable interlocutory order. Id. at 987. The Pennsylvania Supreme Court explicitly disapproved the reasoning of In re J.S., holding, “orders that are not status-changing have been regularly reviewed not only by the Superior Court, but also by this Court.” In re H.S.W.C.-B., 836 A.2d at 910 (citations omitted). 5 Mother did not cite to the particular provision within the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6385, that she claims supports her argument.
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Pennsylvania Dependency Benchbook, revised in 2014,6 to support her arguments. Id. at i-ii.
In dependency matters,
[t]he standard of review . . . requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
“Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” In re R.T., 778 A.2d 670, 683 (Pa. Super. 2001) (internal quotation marks and citation omitted). During dependency proceedings,
the Juvenile Act permits broad discretion in the admission of evidence in dependency proceedings. Section 6341(d), Evidence on issue of disposition, allows the admission of “all evidence helpful in determining the questions presented,” including oral and written reports, during a disposition review hearing.
In re A.H., 763 A.2d 873, 880 (Pa. Super. 2000) (emphasis omitted).
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6 The Pennsylvania Dependency Benchbook is a compendium on Pennsylvania dependency law that provides an overview of the subject for juvenile court judges to refer to while presiding over a case. It is not “intended to be construed as legal advice or considered a substitute for statutory, procedural or other legal authority.” See Pennsylvania Dependency Benchbook, Office of Children and Families in the Courts, 2014; see also In Interest of L.T., 158 A.3d 1266, 1278 (Pa. Super. 2017) (noting that the Juvenile Act remains dispositive in dependency cases).
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The Juvenile Act provides that during permanency hearings and while fashioning a permanency plan, “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.” 42 Pa.C.S. § 6351(e). If the court does not personally consult with the child, then the court must ensure the child’s views have been communicated to the court by the child’s guardian ad litem or legal counsel. Id.
Rule of Juvenile Court Procedure 1128 provides that all “parties shall be present at any proceeding” unless one of two exceptions apply. Pa.R.J.C.P. 1128(A). In relevant part, the “court may proceed in the absence of a party upon good cause shown,” except that no hearing can occur without the presence of the child’s guardian ad litem or legal counsel, or both. Pa.R.J.C.P. 1128(B)(1). The comment to the rule provides that “unless good cause is shown, a child should appear in court. It is important that all children, including infants, appear in court so the court can observe the interaction between the caregiver and child and observe the child’s development and health.” Id. cmt. Indeed, Rule 1129(A)(2) provides that at “a minimum, a child shall appear in person at least every six months unless as otherwise provided by Rule 1128.” Pa.R.J.C.P. 1129(A)(2).
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Here, K.R. last appeared in court in May 2017, sixteen months before the permanency hearing at issue.7 See id. While the court may excuse the Children’s appearance upon a showing of good cause, the trial court here did not justify their absence from the hearing. See generally Pa.R.J.C.P. 1128 cmt.; Pa.R.J.C.P. 1129. Under the circumstances, we vacate the orders and remand to have the juvenile court address the Children’s non-attendance and render a finding of good cause to excuse the Children from attending, as needed.8 Orders vacated. Case remanded. Jurisdiction relinquished.
President Judge Panella joins the memorandum.
Judge Strassburger files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/23/2019
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7M.R., the other child, last appeared in court on May 23, 2018, six months before the permanency hearing. 8 Nothing in our decision prevents the Juvenile Court from again entering the orders appealed from upon a determination of good cause or otherwise holding a new permanency review hearing at which the Children would be present.
Circulated 02/26/2019 09:51 AM
IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS LAWRENCE COUNTY, PENNSYLVANIA KM.R. NO. 94 OF 2013, DP J.L.A. NO. 950F 2013, DP
APPEARANCES
For Children and Youth Services: Carolyn Flannery, Esq.
1001 East Washington Street New Castle, PA 16101
For Natural Mother: Dennis McCurdy, Esq.
539 Main Street
Harmony, PA 16037
For Natural Father: Bradley G. Olson, Jr., Esq.
28 North Mill Street
New Castle, PA 16101
For the Minors: Paula Cialella, Esq.
113 N. Mercer Street
New Castle, PA 16101
Guardian Ad Litem: Nora DiBuono, Esq.
701 First Avenue
Ellwood City, PA 16117
OPINION
Hodge,J. November2,2018 Presently before the Superior Court are the appeals of (Mother), the mother of (K.M.R.) and (J.L.A.) (collectively, Children), to this Court's Permanency Review Orders (PRO) dated September 17,
53flD JUDICIAL DISTRICT FILED/ORIG\NAL
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.2018.1 For the reasons in this opinion, issued pursuant to Pa. R.A.P. 1925(a)i We respectfully request that the Superior Court affirm our Order and dismiss this appeal.
Procedural History
The Children were first taken into emergency care by ah order of this Court dated November 4, 2013. Upon the petition of Lawrence County Child and Youth Services
"(CYS), on November 21, 201'3, this Court adjudicated both Children dependent based on evidence presented that the natural father of Children had physically assaulted
Mother with Children present and that Mother's home had deplorable conditions.
Accordingly, this Court assigned legal and physical custody of Children to CYS. Since then, this Court has conducted permanency review hearings approximately every six months and has continued to find Children dependent, as documented by earlier PR Os dated May 27, 2014, January 6, 2015, September-9, 2015, March 1t, 2016, August 31, 2016, March 16, 2017, September 25.i 2017, and March 231 2018. Meanwhile, CYS filed a Motion for Goal Chanqe from reunlflcatlcn to adoption as to both parents on April 11 _, 2017, which remains pending before this Court. That same date, CYS filed a Petition to Involuntarily Terminate Parental RiShts as to both parents, filed at docket numbers QC,A 20011i20Qt2.of 2017, the proceedings for which have been scheduled concurrently with the recurring permanency hearings triggering-the instant appeal.
lt.is the.most recent PRO, issued by this Court on September 17, 2018, after a permanency review hearing on the, same date, which is the subject ofthe instant appeal.
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On October 5 201 Bi: Mother filed an appeal to the Superior Court of our PRO of
1
September 17, 2018. with a Concise Statement of Matters Complained of on Appeal.
2
Factual Background
Because this case dates back to 2013, the factual record is quite extensive.
Accordingly, this Court will highlight the most salient facts relating to. the instant appeal,
with particular attention paid lo the circumstances that initially resulted in Child re n's removal from the· home and the testimony taken at subsequent permanency.hearings.
Children, K.M.R. and J.L.A.1 .aretwo females· both born to Mother and their natural father. ' K.M.R. was born on November 6, 2001:1 while J.L.A. was born .on January 18, 2006. Although never married to Father; Mother maintained a. residence with Children in New Castle; PA, at which Father spent significant amounts of time.
Children first came to the attention of CYS following an incident at this home on November 2, .2013. On that.date, and within sight of Children, Father beat Mother so badly that her lungs suffered internal bleeding and so severely that she had to be flown to Pittsburgh via helicopter for medical treatment. Notes ofTestimony, March 23,. 2017, .at 16'. The Pennsylvania State Police subsequently arrested and charged Father for the assault. It was during this police response to Mother's residence that state troopers observed the household's "deplorable" conditions. Dependency Petition, November 15, 2013. at 3. Based on this hazardous physical environment and the lack of any parental supervision (a result of Father's incarceration and Mother's hospital stay in Pittsburgh}, the state police referred the chlldrento CYS, who immediately· obtained an order from
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2Father is not a party to this appeal,
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this Court on November 4, 2013i securing emergency custody ofthe children. Order of Court, November 4, 2013.
This Court; upon consideration of the dependency petition, adjudicated Children dependenton November 21, 2013, and took further action as to their placement through a Dispositional Order dateo December 5, 20.13:3 Pursuant to these orders, CYS placed Children With foster families, and Children have remained with the same foster family since December 14, 2013. Petitioner's Exhibit 1, 9/17/18. 8y April 2014, CYS developed the initial family service plan (FSP), an extensive list of criteria in which Mother would have to improve, including, inter a/fa: maintaining a· clean home With working utilities; obtaining and completing mental health treatments; receiving counsellra for domestic violence; completing a parental capacity assessment through a CYS-approved provider; and completing parenting classes. Id. The ultimate goal of the FSP was reunlticatlon between Mother and Children. Id. In the months and years that followed, Mother made some progress with the FSP, such as cleaning up her home and completing mental health assessments. Additionally, Mother and Children participated in supervised visits and family therapy sessions- initlally designel;f to promote healing and
reconclliatlon, but rnost.lmportantly, reuniflcation. N.T. 3/23/17 at 65.
However, it later became apparent that the biggest barrier to reunification was not
the physical environment of Mother's home but the utter lack of any· emotional connection and relationship between her and Children, particularly with K.M,R. As relayed through both her own testimony and that of her therapists at multiple hearings,
3
!i3RD The Pennsylvania Juvenile Act (Juvenile Act), 42 Pa. C.S. §6301 et seq., defines dependency as, inter J.UDICIAL.
DISTRICT elie, "a child who ... is Without proper parental care or control, subsistence, education as required .bY {aw. or other care or control necessary for his physlcal,.mental, pr emotional health, or morals." 42 Pa. G.S.
§6302. Depenqency is a judicial determination. 42 Pa. C.S. §6341 (a).
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K.M.R. characterized her childhood as one full of family dysfunction and abuse that Mother refused to acknowledge.
First, K.M.R. recounted abusive' behavior exhibited by Father besides the violent outburst that first brought Children to CYS' attention, noting that Father had physically harmed her and Mother on multiple occasions, including one episode in which Father deliberately sprayed KM.R. in the eyes with pepper spray. Id. at 20. She also recounted Father's extensive issues with drugs and alcohol, ranging from heavy drinking to using drugs requiring a syringe and needle that resulted in drug paraphernalia being scattered about Mother's home. Id. at 31. Even with these seemingiy obvious indicators of trouble, K.M.R. felt that Mother "put blinders on," enabling, facilitating, or outright igno:ring Father's destructive drug and alcohol-fueled habits despite the clear danger they presented to Children's well-being and despite numerous opportunities to end their on-again, off-again relationship. Id. Even after Children w�re removed from Mother's home, K.M.R. feltthat Mother lied in therapy sessions about the. extent of any of Father's abuse, whether inflicted on- hers·e1f or Children, and pretended that she was unaware of any household issues. Id. at 2Q.
K.rvtR. has also expanded 011 what she felt were Mother's own shortcomlnps in promoting Children's educational, social, and moral development Commenting· on Mother's choice to have Chlldren horneschooled, KM.R. described the quality of
instruction as "not very good" and consisting of only a. few hours of lessons per week, anda reason that she had ''very bad" reading skills that were several grade levels below
other children her age. Id. at 26. Seemingly aware of KM.R's Jack of progress, Mother 53�·D JUOI.C1AL. even completed assignments and tests for K.M.R. so that she would be able to move on OJS'rR IC'r
AWRE.N.�E co_u.J:",T-V PENNS.)'LVANtA· 5
to the next grade level. ldat 27.. Orie lesson that stuck with K.M.R.; however, was Mother's attempts to teach Children to steal, noting that Mother had been banned from stores for shoplifting and that Mother at one point encouraged J.L.A. to outright take a doll from a department store-without paying. Id. at52. Additionally, K.M.R. relayed that Mother arro Father failed to attend to Children's basic. needs, such as feeding) which required herto take the lead in preparing meals for herself and J.LA. as well as performing much of the. housework. Id.
Besldesthe difficulties K.M.R. experienced with her own parents, she alleged that she suffered sexual abuse by a now deceased neiqhbor, David Anderson, which resulte.d in a Pennsylvania State Police criminal investigation. ld. at 51. While K.M -.R.
admitted that she did not inform Mother of the. sexual abuse as it took place, the all�ged sexual abuse has· been part of the discussions of trauma that have taken place at the various counseling sessions facilitated by CYS.
Following their initial removal from Mother's home, Children have remained with the same foster family since December 14, 2013. Their foster family enrolled them in public school at Mohawk School District; where K.M.R. has made steady progress in academics. and socialization, achieving good grades and satisfactorily completfng grade level work, as well as becoming involved in many extracurricular activities. Id. at 22.
K.M.R. has also expressed feellnqs of affection and safety for herself and J . LA. with her foster family that she never felt with Mother, and has even stated that she would like to be· adopted by her foster family. K.rvtR. has voiced that she has no desire to return to
living with Motherfull time .. Id. at 47.
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Meanwhile, CYS implemented the FSP with a goal of eventual reunification; and these efforts included periodic, supervised visits. between Children and Mother, and individual and .group counseling, although regular visits-with Mother have not occurred since.2014. Order of Court, January 6, 2015. Sarne parts of the FSP have been successful; as noted, Mother has improved her home and completed various mental health screenings, Petitioner's Exhibit 1, 9/17/18. In other respects, progress has been more tentative. In early supervised visits, for example, CYS caseworker Kristen Pauline,
who was the initial caseworker in November 2013, testified that she observed Mother discuss inappropriate topics in front of Children that resulted in anger andfrustratlon on
both sides before eventuaHy "[simmerinp] down some" in later visits. N.T. 8/28/18 at 18.
Additionally, the initial parental capacity assessment that Mother completed in December
2014 laid bare the ernotlonal chasm between her and Children that would have to be worked out: '[Mother] exhibits limits in her emotional, cognitive, and behavioral capacity .. .the relatlonship [with Children] is impaired emotional!y ... [MotherJ did not acknowledge the traumas [Children} have experienced. [This] is an emotional .safety concern for [Children]." Petitioner's Exhibit 1," 9/17 /18.
To this end, Mother and Children have attended therapy sesslons.toqetherwlth several counselors since 2014 to work through their issues and. as·with the supervised visitsand otheraspects otthe FSP, there has been some progress made, such as K.M.R successfully reducing .the "amount of anqer, frustration and resentment towards [Mother]," and Mother working on her "ability·to attune to feelinqs, connect with fChildren
and] understand theirtrauma experience." N.T. 3/18/17 at66'�67. However, therapist S3RC:
.IUOICJAL Tanya Stahlman, who has worked with. Mother and Children since 2015, testified .at the DISTRICT·
\WliENCI!: COUNTY PENNSYLVANIA 7
March 2017 permanency hearing that there was much room for rnprovement.s: "the development ofposltlve feelings Ja·nd] connecting those attachments {between Mother and Children]," Id. Indeed, with respect to J.L.A., the tone of interactions between her and. Mother at therapywas positive on a surface level but M�. Stahlman noted a "staqnant, frozen abllity" to form any deeper connections. Id. at 70. The scope ofthe therapy sessions also changed under Ms. Stahlman when she, in reaction to K.M.R.'s
hesltation and unwillingness to engage in the therapy, refocused the sessions from reunification With Mother-to resolution, Le. "[understandinq] the circumstancesthat have
happened to her, how [K. M.R. and Mother] talk- about the traumatic experiences that they have had ln relation to one another and then overcome those feelings." fd. Ms.
Stahlman indicated that since this modification, K,M.R. has been much more responsive to. the therapy sessions, Ms. Stahlman also stated that prior to any reunification, Mother would need to complete a second parental capacity evaluation. Id. However, despite repeated attempts since 2016, Mother has not completed her second parental capacity assessmehtthrough CVS._ Testimony ofAmber Pieri, 9/17/18.
Notwithstanding any isolated, positive interactions through the supervised visits or 'therapy sessions, K.M.R. has..stated her view that, due to Mother's·failure to.
acknowledge and ·protect Children from abusive and traumatic behavior, her relationship with Mother "can't be fixed" and tnat she has no deslre to have fLJrther visits with Mother.
N.f. 3/23/17 at-37, 48. For her part, Mother maintains that she has substantially complied With the FSP and should be further along on the path to reunification.
Testimony of Mother, 9/17it.8.
!53RO JUCIClAL DISTRICT
.WRENCE COUNTY PENNSVI.VANIA 8
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Discussion
In her Statement of Matte.rs·Complaineq of on Appeal, Mother lists five alleg_�d errors. made by this Court:
1. Whether [CYS'] failed to make [Children] available to the Court as required and as· mandated by the Child Protective Services Laws (CPSL)� 2. Whether lMotherl completed all services required by [CYS] arid the Court failed to apply the law to the facts of the ease and return [Children] to (Mother].
3. Whether [:CYSJ farted to provtde any type of reunification counsellnq or generate a service plan to. reunify children with [Mother]. [CYSJ. Withheld [CbildrenJ .and appropriate reunltlcatlon services after all other required services were completed by [Mother].. The Courtfailed to apply the law. to ·the facts on this matter:
4. Whether'[CYSJ failed toprovlde visits between [Mother] and [Ohlldren], based solely on the alleged belief that one .of the two children voiced her desire not to see [Motherl [CYSJ failed to prov1de competent evidence that there was any basis to t!e.ny [Mcther] visitation. The Court failed to apply the law to the facts oh. this. manner.
5. Whether the Court failed to take testimony from beth chlloren regarding their
individual desire to reunify with [Mother] thereby requlrinq the 'Court to make a decision as to both children based upon the unsubstantiated testimony of one
child, while. the other child was Withheld from the Court withoutjustlflcatlon.
53RD JUDICIAL DISTRICT
WRENCE COUNTY •ENN,SYLVANIA. 9
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The appellate standard of review for dependency cases is abuse of dlscretlon, ln the lnterestofC.K., 165 A.3d 935, 941 (Pa. Super. 2017) (internal citations omitted).
Under this standard, the appellate court "mustaccept the facts as found by the trial court .unless.they are. not.supported bythe record ... we are not bound by the trial court's inferences, deductions, and conclusions therefrom .•. lt Id. Indeed, an "abuse of
discretion is not merely an error of juogment, but is; inter afia, a- manifestly unreasonable judgment or a rntsappllcatlon of law." Id. (citing In re J.R., 875 A.2d 1111. 1114 (Pa:
Super. 2005) (internal citation omlttedj),
I. Whether [CYS] failed to make [Children] available to the Court as required and as. mandated by the Chilq Protective Services Laws (CPSL).
Mother contends that CYS failed to make Children available to this Court as
requited by CPSL. After a thorough review by this Court, we find thatMother's complaint on this issue fails as a matter of law.
The CPSL, originally enacted by the General Assembly in 1990·and codified at23 Pa. C.S. §§ 6301-6385, has a purpose to 1'encourage more complete reporting of suspected child abuse" and to enhance the capacity of each county to investigate and prosecute abusers While protecting and rehabilitating affected children. 23 Pa. C.S.
§6302(b). While the CPSL broadens the powers and abilities of the child protective service agencies of each county, the statute makes no mention of any requirement that
these agencles make children available to the court as claimed by Mother. Upon a 53RC Juo·1c1AL thorough review of the CPSL, it. is evident that any connection between it and DISTRICT
,WRENCE ,COl,.!NTY PENNS-Yl.iVANIA 10
permanency matters, andthus-to the matter sub Judice, is marginal See, e.g. 23 Pa.
C.S. §§633$, 6341 (d). Perhaps the most.lmportant connection is found .at 23· Pa. C.S.
:§6375(.k), Which decrees that.each county agency (i.e. CYS) "shall maintain its responsibility for petitioning the court when necessary· for the adjudication ofa chtld pursuantto [the.Juvenile.Act]." In essence, this provision clarifies thatln addltionto the
plethora of new responslbllltles agencies like CYS g�ined under the CPSL. their previous powers to petition courts to find children dependent remained unaffected.
Clearly, and in our view fatal to Mother's first aJJeged error, the CPSL falls to make any mention of making children available to the _court at all, Jet alone in the specific context of dependency proceedings. After a thorough review of the entire statute, and
its few intersecting provisions with the Juvenile. Act, there is simply no applicable mandate in the CPSL to Which CYS failed to.adhere at the. most recent permanency heating. Accordingly, this error should not be considered on appeal.
II. Whether [Mother] completed .all services required by [CYS] and the Court failed to apply the lawto the facts of the case and return [ChildrenJ to [Mother] ..
Mother contends that she has completed all services required by CYS in the FSP and therefore should have Children returned to her .
. As noted above, a trial court's determination on a permanency order will only be.
disturbed or modified if there has been ah abuse of discretion. In the Interest of A.L.D.,
797 A.2d 326, 336. (Pa. Super, ��002)'. As part of the exercise of discretion in making its 53RD JUDICIAL· decisions on a dependency order, the trial court is to determine, interafia, "the CJSTRl!=T
WR.ENCE COIJNTV 'ENNSYI..VANIA ll
continuing necessity for and appropriateness of the placement." 42 Pa. C.S. §6351 (f)(1 }.
One factor courts will examine is the parent's compliance with the services plan developed by the appropriate child services agency, which Will often consist of various classes, physical and mental health evaluations, and other steps a parent must take to be reunified with their dependent child. Although evidence of a parent's compliance with these plans may be probative for.determining the child's placement, ultimately "the focus of dependency proceedings is on the children's safety, permanency, and well-being, not on [the parent's] conduct" In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006). Moreover,
"matters of custody and placement must be decided under the 9hild s best interests
1
standard, not those of parents.'' \d. (emphasis in original).
As Mother's contention here involves the extent of her compliance with the FSP, the N.C. case proves illuminating. In N.C., .a mother of five children, each of whom had been adjudic�ted dependent, appealed the tri�I court's decision to change the goat of her children's permanency plans from reunification to ·adoption. Id. at 822. One of mother's arguments was thatthe trial court abused its discretion in .granting the goal change because she "had largely complied with the provlslons of her permanency· plan, had alleviated the circumstances that had led to-the children's original placement, and had diligently worked for reunlticatlon with her children." Id. at 824. Upon review of the full case record, the Superior Court affirmed the trial court's determination, stating that "while [the mother] has made substantial progress toward achieving the goals of her permanency plan, herparenting skills, including her Judgment with regard to the
emotionalwel!-being of lier children, remain problematic." Id. at 82_5. See also. In re 5:3RO JUDICIAi. S. B., 943 A.2d 973 (Pa.· Super. 2008) (Superior Court affirmed trial court's decision to CISTRJCT
,WRENCE COUNTY PENNSYLVANIA 12
change permanency goal from reunffication to adoption despite.evldence of substantial compliance with permanency plans).
Lack of compliance With a permanency plan, such as failure by a parent to complete required counseling, has also been used by courts as a decisive factor in permanency.and termination of parental rights cases. See, e.g., ln re B.L.W., 843 A.2d 380 (Pa. Super. 2004) (Superior Court upheld trial court's decision that failure ofa parent to. complete counseling was sufficient evidence to support termination of herparental rights); In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (acts of refusal to comply with
a permanency plan are grounds for termination of parental rights, such as failure to complete required counseling). ln short, a parent's compliance, or lack thereof, with a
permanency plan is one factor to consider when making a permanency determination but is, not disposltive.
Since the FSP was issued in20.1'4, it is beyond dispute that Mother has satisfactorily completed many of its requirements, including participating in counseling both individually and with her daughters, undergoing numerous mental health and psychological evaluations (including a positive assessment from Gallo &Associates in January 2016}! keeping_her home clean and free ofclufter.iand completing domestic violence counselinq. See Petltioner's Exhibit 1, 9/18/18. Indeed, even the CYS caseworker who developed the FSP noted that Mother had made significant progress towards completion. N.T,, .8/28118, at 31. However; Mother's contention in the Statement of Errors that she "completed all services as required" is patently untrue.
One outstanding task Mother has yet to accomplish for the FSP is obtaining an 53RO JUDICIAL updated parental capacity assessment to follow up on an earller one performed in 2014.
DISTR.'ICT
WfiENCE COUNTY PENMSYI.VANIA 13
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Another CYS caseworker commented 011 Mother's failure to follow through on this task at the most recent permanency hearing on September 17, 2018,. pointing specifically to Mother's failure to complete the assessment through a CY.S.,a.pproved provider.
(Testimony of Amber Pieri, 9/17/18). Mother has offered to undergo the required parental capacity assessment through an independent psychological provider, but CYS
has refused to accept any results therefrom. (Testimony of Mother, 9/17/18). While it may fall to a subsequent order of this Court to resolve these outstanding differences between Motherand CYS, the updated parental capacity assessment remained incomplete as ofthe most recent DRO. Without a new parental capacity for guidance, the results of the earlier assessment remain the most recent on record, which.state that:
Mother exhibits limits in her emotional, cognitive, and behavioral capacity ... the relationship is currently impaired emotionally and placement back to the mother's home would fikely lead.to $ignificant stress for-the children and not be ih their present best interest [Mother] did not acknowledge the traumas the children have experienced. The lack ofinsighlis an emotional safety concern.for the children if they were to be placed with their mother at this time.
Petitioner'_s Exhibit 1, 9/17/18.
It was in consideration of this assessment and her failure to complete the requested
update, as Well as the earlier testimony of K.M.R. the CYS caseworkers, and Tanya
1
Stahlman; when this Court stated on the most recent PRO "there.has been no resolution of the issues relative to Mother's understanding ofabuse in the child's llfe."
In summary, Mother has. undoubtedly complied with a majority of the steps of the FSP, but she has failed to cooperatewith CY$ to meet one of the last remaining criteria,
5.3RD i.e. completion of an updated parental capacity assessment through a CYS selected JUqlCIAL.
DISTRICT provider, Furthermore, her failure to complete this assessment, coupled with additional
WR£NCE COUNTY •C:r-!N!IVLVANJA 14
testimonial evidence, casts doubt on Mother's ability to connect emotionally with Children and provide them with a safe and loving home. Accordingly, this Court waswell within its discretion todecide that maintainrng Children's current placement was both necessary and within their best interests despite Mother's gener�I' record of progress and compliance with' respect to the FSP.
111. Wh�thedCYSJ failed to provide any type of reunification counseling or generat_e a service plan to reunify [Children} with [Mother]. [CYS] withheld [Children] and appropriate reunification services after all other required
services were completed by [Mother]. The Court failed to apply the law to the facts oh this matter.
Mother contends that CYS failed to provide any type of reunification counsellnq or generate a service plan that would rf:!unify Children With her, and that CYS withheld appropriate. reunification 'services despite her completion ofi'all otherrequired services."
Aside. from the. Juvenile Act, dependency and permanency matters in this Commonwealth are shaped in large part by the federal Adoption and Safe·.Fa_milies Act of 1997 (ASFA), a major purpose of which is. keeping families involved in dependency proceedings unified as much as possible. 42 U.S.C. §§671-6.79. Our Supreme ·Court has provided a succinct background on the purpose of the·ASFA and its relationship to family reunification:
The federal government enacted ASFA and related statutes to address the 53RO JUDICIAL problems of foster care drift and ensure that dependent children are provided ,CISTRICT permanent.homes either through. reunlticatlon or adoption. To accomplish this
WRENcii: C::OUNTV •ENNSVLVANIA 15
---------------------------------------------------
goal; the federal government tied federal funding of foster care and adoption assistance to each state's adoption of a plan regarding its foster care .system ... [the] federal government required state plans to provide that "reasonable efforts shall be made to preserve and reunify families," absent certain exceptions. 42 U.S.C. §67t(a).
In re D.C.D., 105 A.3d 6621675�676 (Pa. 2014).
Further; it is well :settled in Pennsylvania that any chHd services agency ope.rating under the auspices of the Juvenile Act has an affirmative duty to "put forth a good faith effort in'
making services available to the parent," and this duty is "independent of the parent's
duty to accept such efforts." C.K., supra, 165 A.3d at943 (citing In re J.J., 515 A:2d 883, 890 (Pa. 19'86)). There ls a clear obligation on the part of a child services agency, when handling the cases of dependent children, that they make ,sood faith efforts to provide'
reunification services so as to facilitate the most expedient and effective reunion between child and _parent. Id. However, the dl!iY only extends so far, as an .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." Id. at 942 (quotin_g In re A.LO., 797 A.2d 326, 340 (Pa. Super. 2002)).
In essence, once 'a child has been adjudicated dependent, successfully achieving reunification is a two-way street requiring collaboration between the agency and parents.
So iong as the child services agency puts forth good faith and reasonable efforts at providing reunification services, the parent has a corresponding duty to comply and cooperate.
53RO .
Mother's assertion that CYS failed to provide any type of reunification counseling JUDICl,,.L DIS'f.RICT or to generate a service plan for reunification is unsupported by the tacts. It has been
WRl5:NCE COUNTY ?ENNSYLV':\NIA 16
'"'"'\.. --..
I
the clear pollcyof this Court from the earliest- days of the case: that 'teturn .to patent or
guardian is Children's permanent placement goal.- See, e.q., PRO.s dated S/16/15,
11
31'11/16, 9/2/161 3/22/17; 9/17/18. To effectuate this goal, CYS _hasfacilita,ted group counseling for Mother and Children thro:Ughoutsideprovic:fer.s, including Tressa French.
· and Tanya Stahlman, since. 2014. See Petitioner's Exhibit 1, 9/17/18; N_.T. �/16/17 at 64. A¢ditionally, CYS implemented the FSP and its numerous provisions geared toward
its expliclt and primary goal of "reunification with parent" (e.g. having Mother make her home safe and suitable for children, completing mental health -�nP psycholoqical'
evaluatlons, and parental capaclty-assessrnents), For its part, CYS has complied with the good faith and reasonable efforts requirements, as demonstrated by years of repeated efforts-to provide reunlflcatton counseling and encoueaqinq Motherto take:
.
advantage of th_e servlees needed to complete remaining portions of the FSP.
.
Given that CYS has done its-part to promote. reunfflcaticn, an examination of Mother's past actions ones agalri reveals a mixed record, Setting aside her gener�I record of cornpllance with the FSP but also her failure to complete the-second parental capacity assessment; there simply has not been sufficlent proqress in rehabilitating the relationship between Mother and Children -through reunification counselinq, N.T. 3/16/17 at 49,. 73..;74, Nonetheless, it appears that Mother herself has been a beneficiary of these counseling services. As· Ms. Stahlman explained at one permanency hearing i,n honest but optimistic terms:
(Mother] is very motivated and committed to trying to understand [Chiidren's]
experience and to acquire the. necessary s_kills that it would take to form an l>3RD atta_chment with both of herdauqhters, yet there's some areas that we're still JUC"lCIAL DtSTRIC:T reviewingJn therapy and, working on ... [such that] she can feel comfortable to
WRt:NCE COUNTY ?E:f'!NSYLV'A-NIA 17
----------·-----------·-·--·----------··--·--- . ·-· .....
validate, to understand, to communicate in a way with [K.M.R] that is sensitive and understanding and caring.
Id. at 73.
This Court remains hopeful that Mother w111 develop the emotional tools to
effectively bond with her daughters, and that Children will likewise arrive at a mutually loving and beneficial relationship with her. However, for purposes of this statement of
error, the clear evidence that Children and Mother together attended thesetherapy sessions) and Mother's notable progress with Ms. Stahlman, more than refutes her
arpurnent that CYS failed to provide . any type of reunification counselinq. Plainly,. GYS
met its duty to promulgate a FSP with reunification as the goal and to provide reunitlcatlon services. Consequently, it has been Mother's obligation to cooperate and
comply, which is still a work in progress. Accordingly; this Court was under no obligation to direct CYS to return Children to Mother, and this error shou_ld not.be considered on
appeal.
IV. Wh�ther[CYS] failed to provide visits between [Mother] and [Children], based solely oh the alleged belief thatone of the two children voiced her desire not to
see [Mother]. [CYSJfailed to provide competent evidence that there was any basts to deny'[Mother] visitation. The Court fa.lied to· apply the law to the facts
on· this matter.
Mother contends that CYS failed to provide visits between her and Children once they were· adjudicated dependent, and that visits were withheld without-sufflclent
justificaticrr.
:li3R·c JUDICIAL DISTRICT
WFIENCE COUNTY 'li:NNSY-1..VANIA" 18
One of the primary purposes of the Juvenile Act is to maintain family unity whenever possible, an important component of which is visitation between dependent children and their parents. In re C.J., 729 A2d 89, 93 (Pc1. Super. 1999) (internal citations omitted). However, the Juvenile Act does not provide any specific guidance to which courts are bound in evaluatlnqthe appropriate frequemcy·of those visits. Id. (citing
In the Interest ofM.B .• 674 A.2d 7021 706 n.3 (Pa. Super. 1 �96)). Although not binding on the courts, all child service aqenciesln the. Commonwealth (including CYS) ate.
bound by the following administrative· regulation fouho at 55 Pa. Code §3130.68:
Visiting and communication policies:
(a) The county agency shall provide opportunity for visits between· the child arid parents as frequently as possible but no less frequently than once every 2 weeks at a time and place convenientto the parties and in a location that will permit natural interaction, unless visiting is:
(1) Clearly not in keeping with the placement goal .... for example, in adoption or independent living, (2) Freely refused in writing by the parents.
(3) Not in the child's best interest and is limited or prohibited by court order:
Other appellate.declslons have reinforced the idea that.the frequency of vlsltation between dependent children and their parents shoukt be jud_ged acoordlnq to the best interests standard. Albright v .. Commonwealth ex rel. Fetters, 42·1 A2d 157, 158 (Pa.
1980); Niadna v. Niadna, .494 A.2d '856, 858 (Pa. Super, 1985).
However; our inquiry does not end here. Besides the best.interests standard,
parental Visitation is measured aqainstthe grave threatstandard. Generally, parents 53RC JUDICIAL have a constitutionally protected liberty interest in visitation with their children, which DISTRICT must not be denied or limited unless visitation with the parent poses a grave threat to the WRENC.lt COUNTY >JiNNSYLVAl'IIA 19
child. Santosky v. Kramer, 455 U.S. 745 (1982); Green v. Sneeringer, 635 A2d 1074, 1075 (Pa. Super. 1993). Significant case law also exists in our Commonwealth supporting the grave threat standard. See M.B., supra, at 706 (Cavanaugh, J,, dissenting). Which of these two standards applies will. ultimately depend on the goal of
the family service plan. Our Superior Court has clarltied the distinction as '[when]
reunification remains the. goal of the family service plan, visitation will not be denied or reduced unless it poses a grave threat ... [if}, however, theqoat is no longer re.unification
.of the family, then visitation may be limited or denied if it is in the best interests of the child or children;" C.J., supra, at 95 (internal cltatlons omitted).
!I') some rare instances, however, our appellate courts have upheld 'trial court declslons ta limit or suspend parental visitation even though the family service plan's goal remained reunificatiorr and a parent's deficiencies did not constitute a grave threat to the child's welfare. See In re Damon B., 460 A.2d 1196 (Pa. Super. 1983). The Damon B. case proves especially illustrative to the instant appeal, In Damon B., the eponymous child was adjudicated dependent less than a yearatte! his birth, and was
quick_ly placed with a foster family; gdditionally, six other siblings had been found dependent due to unsanitary conditions in the home; Id. at 1197. Forthree years,
visitation between the child and. his mother took place twice: a month and the family service plan goal was' reunification. Id. Three years after first taking the child into their care, the foster parents filed a notice oflntentlonto adopt with the trial court, which then held a hearing on the matter. Id. Despite taking evidence. of the natural mother's
improved abi!ities in housekeeping and parenting, the trial court decided to reduce 53Rc· JUDICIAL visltatlonfrom biweekly to quarterly because of the child's strong psychological bond DISTRICT
1WflltNCE:, COUNTY PE;N NSYL.VA.NIA 20
with his new family, $UCh that returning to his birth family would result in serious· emotional harm .. Id. After the motherappealed, the Superior Court afflrmed the trlal court's decision on the basis ·that the visits we.re counterproductive-and resulted in dire emotional stress. Id. at 11:98. In other words, the Superior -Court "thus implied that a grave· threat existed, albeit not.attrlbutable.to any present deficiency of the mother."
CJ., 729 A.2d af96 (discussing Damon R).
A briefsynopsis of Mother's visitation in this case is helpful. Initially following Children's removal from Mother's home· in November 201:3, cvs·provided regular
visitation) pursuant to 55 Pa; Cede §3130.681 until Au_gust 2.014. See Moth�r's Motionto Resume Visitation and for Counseling, November 21, 2014. At this time, CYS stopped
facilitating regular visitation "due to the reluctance of [Childrenl'i Id, Following the permanency hearing on' Januarys, 2015, thls Court Issued an order that appolnted ct counselor "for the purpose of determining the feasibility and timing of resumption of Visits and efforts for reuniflcation of the children and Mother.,." Order of Court, January 61
2015"•. This' Oourt.left it largely to the discretion ofthe counselor in determining if, when, and how visitation would resume. Id. Evidently, the counselor did not recommend
resumption of visitation, .as the next PRO specifically providedthat "Prohibition of contact with [C.hildren] shall continue unless approved by [GYS] and by further order." PRO, 9/15/15. Subsequent.PR Os have kept the.same rule in place, including the· subject of the instant appeal. See PRO;. 9/17/1R Indeed, no order to date has lifted the.earlier orderof January 6, 2015.
Sl:Fto JQOICi.A:L DISTRIC·T
WRENCI!: COUNTY •ENNSVLVAlilA 21
--·-----------·----------·------· ..··----·----------·-----·---·-·-----·-··----·- -- - ----
Given that the goal ofthe permanency plan remains reunification, this Court's limitations on Mother's visitation shall be evaluated using the "grave threat" standard.4 At first g(ance, when considering Mother's substantial compliance with the FSP 1 it
appears that she possess 110 present mental or moral deficiencies that would pose a grave threat to Children and hence limit hervlsltation. However, similar to Damon B., it
was an·d remains appropriate for this Court to· limit visitation because interactions with Mother result in dire emotional stressfor Children, to the pointthat the only way K.M.R.
envisions feeling any permanent reliefis by cessation of all contact with her. N.T., 3/16/17, at 17�19,. 29, 3.8; see also, Petltioner's Exhibit t, -9/17/18 (Mother's lack of insight and acknowledgement of Children's trauma "is an emotional safety" concern ... at this time."). Ofadditional import, as in Damon B,, is that Children have formed strong familial bonds with their foster family. N.T., 3/16/17, at.46.-
ln short, While. Mother may have improved her parenting skills since 2013, and while the threat of physical harm at her residence may have abated, Children still face a
gr�ve threat due. Mother's continued inability to be emotionally supportive, both ln general and in relation to the traumatic events of their childhood. Accordingly, neither CYS nor this Court improperly limited visitation, and this error should not be considered on appeal.
CYS filed·aMotion for Goal Change on Aprll 11, 2017, asking this Court to modify the permanency goal
4
53RO JllDICl,A L from reunification to adoption, and all parties have vigorously argued this motion. Alongside CYS'
DlS·J'R.ICT concurrent filing of a Petition to Involuntarily Terminate Parental Rights, the gpal change motion remains pending before this Ceurt.and until a final decision is rendered, the permanency go�f officially remains reunification.
WRl11'1CE COUNTY PENNSY.l.�AN IA 22
V. Whether the Court failed to take testimony from both children regarding their individual desire to reunify with [Mother] thereby requiring the Court to make a decision as to both children based upon the unsubstantiated testimony ofone child, while the. other was withheld from the Court without justification.
Mother contends that this Court erred by failing to take testimony from both Children regardihg their placement.
By statute, a court ls permitted to receive reports and other evidence that.will bear or, the dispositlon ofdependent children. 42 Pa. G.S. §'6341 (e), It is the responsibility of the trial court during permanency hearings to determine any questions on the credibility
or admissibility of any evidence; "it ls well settled that admission or exclusion of evidence is within the sound discretion .of the trial court." In re A.H., 763 A.2d 873,, 880 (Pa.
Super; .2000). Irr general, the evidence, that may be presented at a dependency hearing can be quite broad, as'the Juvenile Act provides liberal accessto court records and provides.the opportunity for liberal discovery in a dependency or delinquency action." Id.
al 879 (quoting In re J.C., 603 A.2d 627, 630 (Pa. Super. 1992)}.
Clearly; these underlying rules include witnesses appearing before the court and delivering oral testimony, which would then be admitted or excluded according to the trial court's discretion and in accordance With the law of evidence .. Just as important as what to do whenand after a witness testifies is determining when a witness· ls required to testify, or even be present, at a permanency hearing.
Our first source for answers on these questions is the plain text of the Juvenile 53RD Jl!CICIAL. Act itself. Once a dependency petition is filed, the court "shall direct the issuance of a 'CJSTRfCT
•\'VRl::NC.E COUNTY PENNSYLVANIA 23
summons to the parents, guardian, or other-custodlan, a gu.ardian ad litern, and any other persons as. appear to the court to be proper or necessary parties ... The summons shall also be directed to the child iihe is 14 or more years of age or is alle·ged to be a delinquent.'' 42 Pa. C.$. §6335(a) {emphasis added). In other words, unless the child who is the subjest ofthe dependency petition is also alleged to be delinquent, the court is only required to issue a summons for his/her appearance at the initial dependency
h�aring ifthe child is 14 or older. F.or the subsequent permanency hearings, .the Juvenile Act-authorizes the court to "[upon] application of [any party to the proceedings],
the court, master, or the clerk of court shall issue, orthe court or master may on its own motion issue, subpoenas' requiring the attendance and testimony of witnesses ... 0 42 Pa.
C.S. §.6333(a). In short, this means that any of the parties to a dependency case, or the court itself, can request and/or issue· subpoenas compe1Hn·g testimony for a particular
proceeding.
Distinct from but nonetheless related to these provisions· reg�rding mandated attendance by children at permanency hearings is the statute's requirement that the
court consult-with ohildren in certain sltuatlons. 42 Pa. C.S. §6351(e)(1) states that:
In any permanency hearing held with respectto the child, the court shall consult with the child regarding the child's permanency plan, including the child's desired permanency go·a1, in a manner appropriate to the child's age and maturity; If the courtdoes not consult personally with the child, the court shall ensure that the views of the child regardin.g the permanency plan have been ascertained to the fullest extent.possible and communicated to the court'by the.guardian ad !item ...
S3RC Ju:oH;:IAL C!STRICT
1WRENCE COUNTY l'EN.NS.YL\fArtlA 24
Thus, it is clear that while.the statute requires that the child's own wishes be taken into consideration when formulating a permanency plan, it also leaves courts with some discretion in obtaining that consultation. Likewise, another subsection ofthe same statute states that the court consult with the affected child as to his/her desired permanency goal in the event that the court orders the child placed into another planned permanent living arrangement 42 Pa. C.S. §0351 (f.1)(5)(iv)(A)..Once more, however, the .statute leaves the means of how the court accomplishes this consultation somewhat
open ended. In short, although the courts must consult in some manner with a ch rid as to his/her placement, whether directly or through a guardian ad !item, there is no
commanding language that such a colloquy must take place during a permanency hearing or through a child's testimony.
In the instant appeal, 'it is clear that Children were at no point required to be at any of the permanency h.earings. From the record, it is equally apparent that at no tlme did
Mother avail herself of her statutory tights to compel them to attend and/or testify. First, the initial dependency petition was filed on November 4, 2013, shortly before K.M. R.
turned 12 and J.L.A. turned seven. Because of their ages at the time, and because
neither one faced allegations of dellnquency, Children .did not receive .summonses to attend the initial dependency hearing . .42 Pa. C.S. §6335(a). Likewise, there is nothjng
in the record demonstrating that Mother, either prose or through .counsel, requested that this Court issue subpoenas pursuant to 42 Pa. C.S. §6333(a) demanding that Children be presentand testify at any of the permanency review hearings despite her right to do
so.
SlRD J.UDJC!AL DISTRICT
\W.A £NCE: COUNT,Y, PENN�YI.VAN.IA 25
Of course. Children have been present at some of the hearings since 2013; for
example, KM.R. gave lengthy in camera testimony as part of the permanency review hearing on March f6, 2017. At the most recent permanency hearing oh September 17,
2018, Mother's. counsel noted on the record that neither Ghifdren were present, Their absence, however, is not the result of any error by this Court. Rather, the. onus was on
Mother to request this Court to issue subpoenas. compelling Chilciren to be present and available for examination by counsel. indeed, since March 2017, there have been three
permanency review hearinqs-at.any one of which Mother could have exercised lier right to call Children and J.L.A. ln particular (who has not yet testified on the record) to attend and testify. Moreover, besides the weight accorded to K.M.R.'s substantial testimony in March 20171 this Court has complied with the statutory child consultation requirements via Children's Guardian Ad Litem, who has appeared at every permanency review
hearing on their IJehalf and conveyed their wishes on permanency goals.
In short, Mother's claim that one child was "withheld from the Court without
justification" is baseless. The more appropriate inquiry is what justification Mother had for not requesting a subpoena to 'cornpet one or both Children to testify at an� of the.
numerous hearings held since March 2017. On the contrary, and acting within its discretion, this Court has respected and followed all laws rega.rding evidence, witnesses, arid the presence of interested parties, at all permanency headngs. Accordingly, this error should notbe considered on appeal.
For the foregoing reasons, we respectfully request that the Superior Court. affirm
our PRO of September 17,2018,' . .and.dlsmlss the appeal . in. this .
matter.
53RD JUDlt:IAL DISTRICT
W,/Rli:NCE COU'NTV PENNSYLVA�IA 26
--
IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
LAWRENCE COUNTY, PENNSYLVANIA K.M.R. NO. 94 OF 2013, DP J.L.A. NO. 95 OF 2013, DP
Order of Court
AND NOW, this b..dday of November, 2018, the Court having received Mother's Concise Statement of Matters Complained of on Appeal pursuantto Pa. R.A.P. 1925(b)
With Dennis W. Mccurdy, Esq., representing Mother, the Court hereby ORDERS and DECREES as follows:
1. The Court issues the attached Opinion pursuant to Pa, R.A.P. 1925(a).
2. The Prothonotary shall properly serve notice of this Order and attached Opinion upon all counsel of record as contained in the Court's file, or to a party directly if unrepresented by counsel, 3. The Prothonotary shall immediately assemble the record for the above captioned cases and transmit said records, and this Opinion and Order therewith, to the Superior Court of Pennsylvania as required by all applicable Rules of Appellate Procedure.
FOR iHE COURT:
__
- - _1?_-�
---,Ta«,nW
f"U -- �-
tz., --· J.
53Ra Hodge, Judge
JUDICIAL DISTRICT FILEO/ORIGINAL
.WR ENCE CO UN.TY f>ENNSV_LVANIA 2111 NOV -5 21 2018 NOV -s PH t: 30 JODI l(LAD:' i�·::.�,C,U.iO JODI KLABON�ESOLO& PRO AN J c !.ERK - Pl�O AND Cl�'NK
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