J-S34001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: L.N., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL   OF:  T.E.N., BIOLOGICAL               No. 1872 MDA 2015
PATERNAL GRANDMOTHER


               Appeal from the Order Entered October 7, 2015
            In the Court of Common Pleas of Cumberland County
            Juvenile Division, at No(s): CP-21-DP-0000105-2013

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 08, 2016

      T.E.N. (“Paternal Grandmother”) appeals, pro se, from the order

entered October 7, 2015, in the Court of Common Pleas of Cumberland

County, terminating court supervision as L.N. (“Child”), born in February

2013, was adopted and services were no longer needed. The order further

terminated Child’s dependency and closed the case with Cumberland County

Children and Youth Services (the “Agency”), as well as discharged Child from

the custody of the Agency and the Agency’s foster care services. We affirm.

      The trial court summarized the relevant procedural and factual history,

in part, as follows.

           [M.N.] (hereinafter “Father”) and [S.B.] (hereinafter
      “Mother”) are the biological parents of L.N. [The Agency]
      became involved in L.N.’s life after reports that both parents
      were abusing cocaine and/or prescription medications. Both
      parents admitted to using crack cocaine, and L.N. was taken
      from their custody and placed with [Paternal] Grandmother in
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     May of 2013.[1] Following a resource family assessment, which
     denied [Paternal] Grandmother as an adoptive resource for L.N.,
     [the Agency] filed a Motion for Modification of Child’s Placement.
     On August 28, 2013, a hearing was held before the Honorable
     Judge Guido of the Cumberland County Court of Common Pleas
     regarding [the Agency’s] Motion for Modification of Child’s
     Placement. Testimony was given that [Paternal] Grandmother
     was denied as an adoptive resource due to health and financial
     concerns, as well as the fact that [Paternal] Grandmother had
     her own son [J.], removed from her care by York County
     Children and Youth Services only a year earlier.

                                     ...

           Based on all of the testimony presented at the August 28,
     2013 hearing, the Honorable Edward Guido removed L.N. from
     [Paternal] Grandmother’s custody, stating that [Paternal]
     Grandmother was not in a position to be a long-term resource
     and expressing concern that there was still an active York
     County CYS case open with [Paternal] Grandmother, and that,
     therefore, it was in the Child’s best interest to place the Child in
     the care of [the Agency] to be placed with a foster family.

            L.N. was ultimately placed with [Foster Parents] on August
     28, 2013, although L.N.’s reunification with her biological
     parents remained the goal. Eventually, however, L.N.’s biological
     parents each failed to comply with their permanency plan, and
     the goal was changed to adoption.[2] Mother signed a consent to
     adoption on April 28, 2014. On August 19, 2014, [the Agency]
     filed a Petition to Terminate Father’s parental rights, and a
     hearing on the same was scheduled for September 24, 2014.
     Prior to the September 24, 2014 Permanency Review, [Paternal]
     Grandmother filed her Motion to Intervene, which was granted
     by the Court with the consent of the parties.

          At the September 24, 2014 hearing, Father voluntarily
     consented to the termination of his parental rights. In light of

1
  Child was adjudicated dependent by Master’s Recommendation for
Adjudication and Disposition-Child Dependent dated May 23, 2013, and
adopted by order entered May 31, 2013.
2
 The court changed Child’s permanency goal to adoption on September 24,
2014.
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     the fact that both Mother and Father consented to the
     termination of their parental rights, [Paternal] Grandmother
     requested to be reassessed as an adoptive resource for L.N.
     That request was granted. At a February 20, 2015 hearing
     regarding [Paternal] Grandmother’s Motion for Modification of
     Placement, testimony was given that [Paternal] Grandmother
     had been reassessed in November of 2014, but once again
     [Paternal] Grandmother was denied as an adoptive resource.
     Once again, the reasons given for the denial were concerns with
     [Paternal]   Grandmother’s     health,   concerns    with   the
     environmental conditions of [Paternal] Grandmother’s residence,
     and [Paternal] Grandmother’s past history with York County
     CYS.

                                    ...

           At the conclusion of the February 20, 2015 hearing, the
     [c]ourt took the matter under advisement. In an Order dated
     April 16, 2015, this [c]ourt denied [Paternal] Grandmother’s
     Motion for Modification of Placement, stating that it would not be
     in L.N.’s best interests to remove her from [Foster Parents]. The
     [c]ourt further ordered that [the Agency] should move forward
     with the planned adoption by [Foster Parents].

            Subsequent to the [c]ourt’s April 16, 2015 Order denying
     [Paternal] Grandmother’s Motion to Modify Placement, [Paternal]
     Grandmother filed a Custody Complaint on April 30, 2015 . . .
     seeking full legal and physical custody of L.N. In response, the
     Court [o]rdered a custody conciliation to take place on June 9,
     2015. However, [Paternal] Grandmother’s Custody Complaint
     failed to join [Foster Parents] to the custody action. This [c]ourt
     found them to be necessary parties to the conciliation under
     Pennsylvania Rule of Civil Procedure 1915.6, so the custody
     conciliation was continued,[3] and eventually rescheduled for July
     14, 2015. At the July 14, 2015 conciliation, all parties appeared
     and were unable to reach an agreement to settle the custody
     action. Nevertheless, the Custody Conciliator recommended, and
     this [c]ourt so ordered, that [Paternal] Grandmother be awarded
     visitation with the Child every third week in a visitation center.
     A full custody hearing was scheduled for November 20, 2015.

3
  This order was initially entered on the dependency docket, instead of the
related custody docket at docket number 2015-2460 in error. By order
entered December 23, 2015, the trial court corrected the docketing error.
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             On June 26, 2015, this [c]ourt entered an Order in the
      dependency docket noting that the dependency proceedings and
      the custody proceedings run collaterally to one another, and that
      the commencement of the custody proceedings would not
      prevent the dependency proceedings from moving forward
      toward adoption.     Before the November 20, 2015 custody
      hearing could occur, L.N.’s adoption by [Foster Parents] was
      finalized on October 2, 2015….

Trial Court Opinion, 12/23/15, at 4-9 (footnotes omitted).

      By order entered October 7, 2015, the trial court terminated court

supervision as Child was adopted and services were no longer needed. The

court further terminated Child’s dependency and closed the Agency’s case.

In addition, the court discharged Child from the custody of the Agency and

the Agency’s foster care services.

      On October 26, 2015, Paternal Grandmother, pro se, filed a notice of

appeal.4 Although Paternal Grandmother did not file a separate statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),

her   notice   of   appeal   contains   alleged   errors.5   On   appeal,   Paternal

Grandmother essentially challenges Child’s placement, the failure of the trial

court to appoint her counsel, her exclusion from the proceedings on June 15,




4
  Paternal Grandmother filed a separate appeal with regard to the related
custody matter at Superior Court docket number 1880 MDA 2015.
5
 We note that Paternal Grandmother’s brief does not include a statement of
questions involved, for which we could find waiver. See Krebs v. United
Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006). However, Appellees do not raise this concern or request such relief.
We, therefore, review the issues raised by Paternal Grandmother.


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2015, and the failure of the trial court to provide her notice of Child’s

adoption by Foster Parents.6

      Our standard of review in dependency cases

      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) (citation omitted).

      We first examine the trial court’s placement of Child. On this topic, the

trial court expressed

      concerns regarding [Paternal] Grandmother’s health, finances,
      and her past involvement with York County CYS, including the
      environmental concerns with her home, Judge Guido found that
      removal from [Paternal] Grandmother’s home was in L.N.’s best
      interests. Judge Guido ordered L.N. to be placed in the care and
      custody of [the Agency] so that she could be placed in a foster
      home, and L.N. was ultimately placed with [Foster Parents] on
      August 28, 2013.

Trial Court Opinion, 12/23/15, at 14. The court further stated that

      [f]ollowing the February 20, 2015 hearing, this [c]ourt reviewed
      the full record, and gave great thought as to whether to place
      L.N. with [Paternal] Grandmother, as it was obvious [Paternal]
      Grandmother’s love for L.N. was in earnest. Nevertheless, so
      was [Foster Parents’] love for L.N. In an Order dated April 16,
      2015, the [c]ourt denied [Paternal] Grandmother’s Motion to
      Modify Placement. In doing so, the Court relied on the record as

6
  As indicated, Paternal Grandmother takes the current appeal from the
order entered October 7, 2015, which terminated court supervision due to
Child’s adoption. To the extent Paternal Grandmother attempts to challenge
the trial court’s orders of August 28, 2013 and April 16, 2015, entered on
August 29, 2013 and April 17, 2015, respectively, which removed Child from
her placement and denied the modification of placement, such appeal would
be untimely. See Pa.R.A.P. 903(a).
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     a whole, the testimony from the February 20, 2015 hearing
     regarding [Paternal] Grandmother’s history with York County
     CYS, the conditions of [Paternal] Grandmother’s home,
     [Paternal] Grandmother’s health, [Paternal] Grandmother’s
     finances regarding the burden of paying for a young child in
     addition to her already burdened finances, and the fact that L.N.
     had been living with [Foster Parents] since she had been
     approximately seven months old and had formed a bond to them
     as her parents.

           As such, the [c]ourt found that keeping L.N. in the care of
     [Foster Parents] and moving forward with the adoption process
     was in the child’s best interest. Thus, the [c]ourt’s decision to
     deny [Paternal] Grandmother’s Motion to Modify Placement was
     not the result of partiality, prejudice, bias or ill-will, but was
     instead made with [] L.N.’s best interests in mind. Therefore, the
     [c]ourt’s decision was not an abuse of discretion.

Id. at 16-17.

     We have stated:

           When a child is adjudicated dependent, the child’s proper
     placement turns on what is in the child’s best interest, not on
     what the parent wants or which goals the parent has achieved.
     See In re Sweeney, 574 A.2d 690, 691 (Pa. Super. 1990)
     (noting that “[o]nce a child is adjudicated dependent . . . the
     issues of custody and continuation of foster care are determined
     by the child’s best interests”). Moreover, although preserving the
     unity of the family is a purpose of the Act, another purpose is to
     provide for the care, protection, safety, and wholesome mental
     and physical development of children coming within the
     provisions of this chapter. 42 Pa.C.S. § 6301(b)(1.1). Indeed,
     [t]he relationship of parent and child is a status and not a
     property right, and one in which the state has an interest to
     protect the best interest of the child. In re E.F.V., 315 Pa.
     Super. 246, 461 A.2d 1263, 1267 (1983).

In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some internal quotation

marks omitted).

     The primary purpose of the disposition of a dependent child is to

examine what is in the best interest of the child. See 42 Pa.C.S. § 6351(a);

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In re Tameka M., 580 A.2d 750, 753 (Pa. 1990). Further, following an

examination and findings on the factors provided in § 6351(f) and (f.1),

regarding matters to be determined at the permanency hearing, the trial

court must also find that the Agency has met its burden that a modification

of placement is in Child’s best interests. See 42 Pa.C.S. § 6351(g); In re

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      Here, given the evidence presented as to Paternal Grandmother’s

health, finances, and home and/or environmental conditions, the record

supports the trial court’s finding that it was not in Child’s best interests to be

placed with Paternal Grandmother. Testimony confirmed that Paternal

Grandmother suffers a litany of health problems—neuropathy due to a

damaged sciatic nerve from back surgery, diabetes, asthma, high blood

pressure, high cholesterol, and anxiety. See N.T., 8/28/13, at 3-4. Her prior

treating nurse practitioner, Kathleen Tolleson, testified that “as the baby

becomes more active, it may be more difficult for Paternal Grandmother to

be able to take care of a two- and three-year-old, a toddler.” Id. at 6.

Likewise,   her   current   treating   nurse   practitioner,   Lydia   Washington,

corroborated continuing anxiety issues, indicating that, while summarized as

“stable,” Paternal Grandmother’s anxiety was “uncontrolled” on November 5,

2014. N.T., 2/20/15 (Part 1), at 6-10.

      Financially, Paternal Grandmother noted that she escrowed her real

estate license and received approximately nine hundred sixty dollars per

month in disability. See id. at 37, 41-42. She admitted to Judy Thomas,

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independent contractor for Agape Associates who prepared the resource

family assessment, that, although she was “making it,” “she was not in good

financial shape.” N.T., 2/20/15 (Part 2), at 14. In addition, Nan Mavor,

caseworker from York County CYS, who last visited Paternal Grandmother’s

current home on January 23, 2015, reported concerns in the home as to

cleanliness and clutter similar to that found in her prior home from where

her teenage son was removed.7 See N.T., 2/20/15 (Part 1), at 63-64, 66;

N.T., 2/20/15 (Part 2), at 8-10.

      Child had been placed with Foster Parents for approximately a year

and a half and testimony was presented as to the positive, loving

relationship between Child and Foster Parents. See N.T., 2/20/15 (Part 2),

at 24-25. Agency caseworker Virginia Koser testified:

            It appears [Foster Parents] have a very strong bond with
      [Child]. Every time that I’ve seen her with them, she appears to
      be very comfortable with them, very happy with them. She also
      has a good relationship with her foster brother, their son, [J.]. I
      have absolutely no concerns and feel that she’s well taken care
      of and very loved there.

Id. at 24. We discern no abuse of discretion.

      Turning   to   the   lack   of   appointment   of   counsel   for   Paternal

Grandmother, the trial court first noted that Paternal Grandmother did not

appeal the dependency order of August 28, 2013 within thirty days, and, as


7
   York County CYS case worker, Nan Mavor, confirmed that Paternal
Grandmother’s teenage son, J., has since been returned to Paternal
Grandmother’s and his father’s custody and dependency has been
terminated. See N.T., 2/20/15 (Part 1), at 62-63. See also Paternal
Grandmother’s Exhibits 1 and 2.
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such, the instant appeal should be quashed as untimely. See Trial Court

Opinion, 12/23/15, at 17. The court continued, acknowledging that, while

parties to a dependency action are entitled to counsel, Paternal Grandmother

participated in the August 28, 2013 hearing regarding Child not as a party,

but as a witness.8 See id. The court further suggested that Paternal

Grandmother waived this issue as she failed to first raise it with the trial

court. See id. at 17-18. The court stated:

            Furthermore, a review of the record from the August 28,
      2013 hearing reveals that [Paternal G]randmother never
      requested to be represented by counsel, nor made any argument
      to the [c]ourt about why she was entitled to counsel. Pursuant to
      Pennsylvania Rule of Appellate Procedure 302(a), any issues not
      raised in the lower court are waived an cannot be raised for the
      first time on appeal. In the present case, [Paternal]
      Grandmother never raised the issue that she should be entitled
      to counsel before the trial court. Therefore, under Rule 302(a),
      the issue is waived.

Id. (citation omitted). With this last point, we agree.

      Paternal Grandmother never raised the lack of counsel with the trial

court. In fact, Paternal Grandmother never even requested counsel be

appointed on her behalf. Paternal Grandmother, therefore, waived any issue

related to appointment of counsel as she failed to first raise it below with the

trial court. See Pa.R.A.P. 302(a).

      Next, as to Paternal Grandmother’s exclusion from a June 15, 2015

permanency review proceeding before a Master, the trial court concluded



8
 Paternal Grandmother was not a party until the trial court granted her
motion to intervene by order dated September 24, 2014.
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that, after the granting of her motion to intervene by order entered

September 26, 2014, Paternal Grandmother had a right to attend the

proceeding and should not have been excluded, except for “good cause”

shown. Trial Court Opinion, 12/23/15, at 18. The court conceded “good

cause” for exclusion was lacking. Id. Nonetheless, the court noted that it

entered a subsequent order providing that Paternal Grandmother shall not

be excluded from any future proceedings, and that Paternal Grandmother

suffered no prejudice. See id. The trial court reasoned:

            By virtue of this [c]ourt granting [Paternal] Grandmother’s
     Petition for Intervention, [Paternal] Grandmother became a
     party to the dependency proceedings at that time. As such,
     [Paternal] Grandmother had the right to attend any dependency
     hearing which took place after September 24, 2014, unless good
     cause is shown why she should be excluded. The record does not
     reveal why [Paternal] Grandmother was excluded from the June
     15, 2015 dependency hearing before the Dependency Master,
     and the [c]ourt certainly cannot find any “good cause” on the
     record for such an exclusion. In an attempt to clarify and resolve
     the situation, this [c]ourt issued an Order on July 7, 2015 stating
     that [Paternal] Grandmother shall not be excluded from any
     future dependency matters relating to L.N. Despite [Paternal]
     Grandmother being wrongfully excluded from the June 15, 2015
     hearing, this [c]ourt does not find that [Paternal] Grandmother
     suffered any resulting harm or prejudice, given the fact that the
     [c]ourt had already denied her Motion to Modify Placement and
     ruled that L.N. should stay with [Foster Parents].

Id. We agree.

     Pennsylvania Rule of Juvenile Court Procedure 1128 provides, in part,

as follows with regard to presence at proceedings:

     A. General Rule. All parties shall be present at any proceeding
     unless the exceptions of paragraph (B) apply.


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     B. Exceptions.

     (1) Absence from proceedings. The court may proceed in the
     absence of a party upon good cause shown except that in no
     case shall a hearing occur in the absence of a child’s attorney. If
     a child has a guardian ad litem and legal counsel, both attorneys
     shall be present.

     (2) Exclusion from proceedings. A party may be excluded from a
     proceeding only for good cause shown. If a party is so excluded,
     counsel for the party shall be permitted to be present.

     Paternal Grandmother became a party to the dependency matter

subsequent to the granting of her motion to intervene in September 2014.

Pursuant to Pennsylvania Rule of Juvenile Court Procedure 1128, she was

therefore entitled to attend all proceedings, including June 15, 2015. The

record presents no “good cause” for Paternal Grandmother’s exclusion on

June 15, 2015. Nevertheless, by order of July 7, 2015, the trial court

clarified that Paternal Grandmother shall not be excluded from dependency

proceedings during the pendency of the dependency matter. Further, we

agree with the trial court that Paternal Grandmother suffered no prejudice as

the court had already removed Child from her home by order dated August

28, 2013 and denied her motion to modify placement by order dated April

16, 2015.9

     Finally, as to lack of notice to Paternal Grandmother regarding Child’s

adoption     by   Foster   Parents,   the   trial   court   indicated   that   Paternal

Grandmother was not a party to the adoption proceedings and was not



9
  These orders were entered on August 29, 2013 and April 17, 2015,
respectively.
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among those who, by statute, must consent to the adoption and be afforded

notice. See Trial Court Opinion, 12/23/15, at 19. The court articulated:

            Pennsylvania law provides that “Notice of the [adoption]
      hearing shall be given to all persons whose consents are
      required and to such other persons as the court shall direct.” 23
      Pa.C.S. § 2721. Section 2711 of the Adoption Act contains an
      exhaustive list of those people whose consent must be given in
      order for the adoption to take place. 23 Pa.C.S. § 2711.
      Importantly, the grandparents of the child are not listed among
      those whose consent is necessary. Id. [Paternal] Grandmother’s
      consent was not needed for the adoption under Section 2711
      and, as a result, it was not necessary to give [Paternal]
      Grandmother notice of the proposed adoption under Section
      2721. Therefore, this [c]ourt did not err in failing to ensure that
      [Paternal] Grandmother was given notice of the proposed
      adoption.

Id. Again, we agree.

      As the disposition of this issue involves a pure question of law, our

standard of review is de novo, and our scope of review is plenary. See In re

Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).

      As to those required to consent to an adoption 23 Pa.C.S. § 2711(a)

and (b) provides:

      (a) General rule.--Except as otherwise provided in this part,
      consent to an adoption shall be required of the following:

            (1)     The adoptee, if over 12 years of age.

            (2) The spouse of the adopting parent, unless they join in
            the adoption petition.

            (3) The parents or surviving parent of an adoptee who has
            not reached the age of 18 years.

            (4) The guardian of an incapacitated adoptee.


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            (5) The guardian of the person of an adoptee under the
            age of 18 years, if any there be, or of the person or
            persons having the custody of the adoptee, if any such
            person can be found, whenever the adoptee has no parent
            whose consent is required.

      (b) Husband of natural mother.--The consent of the husband
      of the mother shall not be necessary if, after notice to the
      husband, it is proved to the satisfaction of the court by evidence,
      including testimony of the natural mother, that the husband of
      the natural mother is not the natural father of the child. Absent
      such proof, the consent of a former husband of the natural
      mother shall be required if he was the husband of the natural
      mother at any time within one year prior to the birth of the
      adoptee.


      In turn, 23 Pa.C.S. § 2721 sets forth as follows as to notice:

      The court shall fix a time and place for hearing. Notice of the
      hearing shall be given to all persons whose consents are
      required and to such other persons as the court shall direct.
      Notice to the parent or parents of the adoptee, if required, may
      be given by the intermediary or someone acting on his behalf.
      Notice shall be by personal service or by registered mail to the
      last known address of the person to be notified or in such other
      manner as the court shall direct.

      Here, Paternal Grandmother was not among those statutorily required

to consent to and receive notice of adoption. As such, she was not required

to be provided notice of Child’s adoption by Foster Parents.

      Order affirmed.

      Judge Jenkins joins the memorandum.

      Judge Stabile concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2016




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