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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
1   C.A. (Father) has not appealed these orders.
J-S05029-19


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-



____________________________________________
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.


                                           -2-
J-S05029-19


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


                                     -3-
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.


____________________________________________
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-



                                           -4-
J-S05029-19


       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


____________________________________________

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.




                                           -5-
J-S05029-19


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).



____________________________________________
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).


                                           -6-
J-S05029-19


      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).




                                     -7-
J-S05029-19


       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




____________________________________________
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.


                                           -8-
                                                                                           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,

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                                                                                    FILED/ORIG\NAL

                                                                                   201atmv -s PM 11 �o
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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.




     S3RO
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�WRENCE COUNTY
 PENNSYLVANIA
                                            --..

                  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



    53!'t.CI
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                  2Father is not a party to this appeal,

AWREN.CE COUNTY
 PENNSYLVANIA
                                               -�-




                        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).
\WR.!!:NCE COUNTY
 PENNSVI.V.AN_IA                                                           4
                                                                                          ··�.




                           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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,WRENCE COIJNTY
 l>ltNNSVLVANIA                                                     6
                            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.
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.WRENCE COUNTY
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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



                                                          ----------··--·----------------·-------------¥------
                              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




                 ·················-· · · · ······-··-··--······ ····----·· · ·- -·--··-··---------------------------------------------
                    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
