J-A25028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: G.S., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: CITY OF PHILADELPHIA,           :
    DEPARTMENT OF HUMAN SERVICES               :
    (DHS)                                      :
                                               :
                                               :
                                               :   No. 124 EDA 2017

                Appeal from the Order Entered November 21, 2016
       In the Court of Common Pleas of Philadelphia County Family Court at
                         No(s): CP-51-DP-0002329-2016,
                            FID# 51-FN-002248-2016


BEFORE:       OTT, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 02, 2017

        The City of Philadelphia, Department of Human Services (DHS)

appeals from the order entered November 21, 2016, in the Court of

Common Pleas of Philadelphia County, adjudicating G.S., a Minor (Child),

dependent, and declining to find that DHS made “reasonable efforts” to

prevent or eliminate the need for placement.1, 2 DHS maintains (1) the trial


____________________________________________



     Former Justice specially assigned to the Superior Court.

1
  DHS is an aggrieved party with standing to appeal. See In the Interest
of K.C., 156 A.3d 1179, 1182–1183 (Pa. Super. 2017). Furthermore, we
agree with DHS’s position that the order is a collateral order appealable
pursuant to Pa.R.A.P. 313. See DHS’s Brief at 1-2 (“Statement of Appellate
Jurisdiction”).

2
  In light of the Supreme Court’s admonishment of this Court in regard to
delays in Fast Track cases, see In re T.S.M., 71 A.3d 251, 261 n.21 (Pa.
(Footnote Continued Next Page)
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court erred as a matter of law in applying the wrong legal standard for

“reasonable efforts”, and (2) the trial court erred as a matter of law in

holding that the record did not support an order finding that DHS made

“reasonable efforts.” We agree and, therefore, we vacate the order in part,

and remand with instructions.

      As a result of a General Protective Services report received by DHS on

October 18, 2016, alleging physical abuse by Child’s mother, DHS obtained

an order of protective custody for Child.3        Order of Protective Custody,

10/20/2016.       The judge granting the order found, inter alia, that

“appropriate reasonable efforts to prevent placement were made, or that

preventative services were not offered due to the necessity for an

emergency placement and that the lack of services was reasonable under

the circumstances.” Id. On October 21, 2016, a shelter care hearing was

held, and the trial court approved the Master’s recommendation that found

DHS made reasonable efforts to prevent or eliminate the need for removal of

                       _______________________
(Footnote Continued)

2013) (stating that “repeated delays” were not fully explained), it is
important to state here that this case has been delayed for panel listing
because the Philadelphia Court of Common Pleas sent the certified record to
this Court well past the due date. The certified record was due in this Court
by January 19, 2017. Despite ongoing efforts by this Court to obtain the
certified record, the certified record was not received until June 23, 2017.
As a result, the briefing schedule was delayed by six months, solely on the
basis of the late submission of the certified record. It bears mention DHS
requested and received a short 7-day extension of time to file its brief.

3
  Child was fifteen years of age and in tenth grade. See N.T., 11/21/2016,
at 13, 17.


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the Child.     See Master’s Recommendation for Shelter Care and Order,

10/21/2016. On November 21, 2016, following an adjudicatory hearing, the

trial court adjudicated G.S. dependent.          The trial court further found that

DHS “made NO reasonable efforts to prevent or eliminate the need for

removal of this child from the home.” Order of Adjudication and Disposition

— Dependent, 11/21/2016, at 1.

        On December 15, 2016, DHS filed a petition for reconsideration

regarding the “reasonable efforts” finding4 and, on December 20, 2016, DHS

filed this timely appeal, together with a Pa.R.A.P. 1925(b) statement.

        Our standard of review is well settled:

        We must accept the facts as found by the trial court unless they
        are not supported by the record. Although bound by the facts,
        we are not bound by the trial court’s inferences, deductions, and
        conclusions therefrom; we must exercise our independent
        judgment in reviewing the court's determination, as opposed to
        its findings of fact, and must order whatever right and justice
        dictate. We review for abuse of discretion. Our scope of review,
        accordingly, is of the broadest possible nature. It is this Court’s
        responsibility to ensure that the record represents a
        comprehensive inquiry and that the hearing judge has applied
        the appropriate legal principles to that record. Nevertheless, we
        accord great weight to the court’s fact-finding function because
        the court is in the best position to observe and rule on the
        credibility of the parties and witnesses.

In re E.P., 841 A.2d 128, 131 (Pa. Super. 2003) (citation omitted).

        At the adjudicatory hearing, documentation from Penn Medical

Emergency was provided to the trial court which indicated G.S. had suffered

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4
    The court did not rule on DHS’s motion for reconsideration.


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a concussion as a result of the physical altercation with her mother. N.T.,

11/21/2016, at 15.    The DHS social worker testified that G.S. was due to

have a follow-up medical appointment but did not have the appointment due

to a disconnect with the Community Umbrella Agency (CUA) subcontractor.

See N.T., 11/21/2016, at 15–16, 20.       At the hearing, the trial judge asked:

“How do I give you reasonable efforts when she came in with a concussion

that happened like a month ago?           She still has not had a follow-up

appointment. Id. at 19.      The trial court continued, “I believe that DHS

and/or the agency, has abdicated their responsibility to this young lady.”

Id. at 21.   The trial court concluded:      “[B]ecause of that, I cannot grant

reasonable efforts.” Id. at 23.

     Relevant to this appeal, 42 Pa.C.S. § 6351(b) requires the court, prior

to any order of disposition that would remove a dependent child from his or

her home to determine, inter alia, “whether reasonable efforts were made

prior to the placement to prevent or eliminate the need for removal of the

child” or “if preventative services were not offered due to the necessity for

an emergency placement, whether such lack of services was reasonable

under the circumstances.” 42 Pa.C.S. § 6351(b)(2), (3). See Interest of

K.C., 156 A.3d 1179 (Pa. Super. 2017) (trial court abused its discretion at

dependency    adjudicatory   hearing    when    it   applied   the   standard   for

permanency hearing, 42 Pa.C.S. § 6351(f), rather than the standard for

adjudicatory hearings).


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       In Interest of K.C., supra,

       the trial court’s inquiry at the hearing with regard to whether
       reasonable efforts were made focused on whether DHS had
       made reasonable efforts to finalize a placement for K.C. The
       court did not discuss what efforts, if any, we made to “prevent
       or eliminate the need for removal of [K.C.] from his home,” nor
       did it determine whether this was an emergency placement and
       therefore “such lack of services was reasonable under the
       circumstances.” 42 Pa.C.S. §§ 6351(b)(2)(3).

Id. at 1184.         This Court found that because the hearing “was an

adjudicatory hearing where the court found K.C. dependent and removed

him from his home … [the] trial court was required to apply Section

6351(b)[.]” Id.

       Here, just as in Interest of K.C., the court held an adjudicatory

hearing and found G.S. dependent and removed her from her home.            The

court further determined DHS made “NO reasonable efforts.” Order of

Adjudication and Disposition — Dependent, 11/21/2016, at 1. In its opinion,

in addition to its reasoning stated at the adjudicatory hearing, namely, that

DHS failed to take Child for medical follow up treatment, the court also

stated that DHS failed to explore relatives or alternate placement resources,5

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5
  The statement in the trial court’s opinion that DHS did not explore relatives
for placement is not supported by the record and is contradicted by the trial
court’s own order. See N.T., 11/21/2016, at 15 (trial court stating, “Okay.
As long as you made an effort to do [place Child in kinship care].”); Order,
11/21/2016, at 2 (finding DHS “did explore Family Members as Possible
Placement/Kinship Resource to no Avail”).



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and failed to gather necessary information regarding mother’s parenting

classes. See Trial Court Opinion, 6/22/2017, at 2, 3. However, in light of

the “reasonable efforts” standard set forth at 42 Pa.C.S. § 6351(b), supra,

and explained in Interest of K.C., it is clear that all of the court’s

considerations are irrelevant to the preplacement “reasonable efforts”

determination, and that the trial court failed to apply the correct standard.

Therefore, we conclude the court’s determination constitutes an abuse of

discretion.

       Next, DHS argues that the trial court erred as a matter of law in

holding that the record evidence did not support an order finding that DHS

made reasonable efforts to prevent or eliminate the need for placement of

the Child.    Based on our review, we agree with DHS’s position that the

record reflects two prior orders in this case that include findings that DHS

made Section 6351(b) reasonable efforts, see Order of Protective Custody,

supra; Master’s Recommendation for Shelter Care and Order, supra,6 and

that the evidence presented at the adjudicatory hearing provided no grounds

that would warrant modification of the prior findings. Because the trial court

based its conclusion that DHS made “NO reasonable efforts” without regard

to the proper criteria under 23 Pa.C.S. § 6351(b), we conclude the court

erred as a matter of law in its “reasonable efforts” determination, and we
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6
  The Shelter Care Order was signed by the same judge who made the “NO
reasonable efforts” determination in the Order of Adjudication.



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remand to the trial court to enter a finding that DHS did make reasonable

efforts to prevent the placement of Child.7

       Order vacated in part. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




____________________________________________


7
  Notably, since the time the order in this case was entered in the trial court,
three recent decisions involving the same judge who presided in this case
have addressed this identical issue of the correct “reasonable efforts”
standard. See In the Interest of K.C., supra; In the Interest of K.S.,
T.B., M.B., and N.B., 1662 EDA 2016, 2017 Pa. Super. Unpub. LEXIS 1194
(Pa. Super. Mar. 29, 2017) (unpublished memorandum) (trial court abused
its discretion when it applied the incorrect standard, remanded to trial court
and jurisdiction retained); In the Interest of K.S., T.B., M.B., and W.B.,
1662 EDA 2016, 2017 Pa. Super. Unpub. LEXIS 2902 (Pa. Super. July 31,
2017) (unpublished memorandum) (dismissing appeals as moot in light of
trial court’s order finding that D.H.S. had made reasonable efforts to prevent
or eliminate removal of child from the home).


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