J-A32037-16

                                   2017 PA Super 42



IN THE INTEREST OF: K.C., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: THE CITY OF PHILADELPHIA
DEPARTMENT OF HUMAN SERVICES

                                                      No. 1620 EDA 2016


                  Appeal from the Order Entered April 26, 2016
              in the Court of Common Pleas of Philadelphia County
                  Family Court at Nos.: CP-51-DP-000905-2016
                            FID#51-FN-000830-2016

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

OPINION BY PLATT, J.:                             FILED FEBRUARY 24, 2017

        Appellant, the City of Philadelphia Department of Human Services

(DHS), appeals from the order of the trial court adjudicating K.C., a minor,

dependent. The trial court adjudicated K.C. dependent, but declined to find

that DHS had made “reasonable efforts” to prevent or eliminate the need for

placement. DHS argues that the court erred by basing its conclusion of no

“reasonable efforts” solely on DHS not having a placement plan at the




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*
    Retired Senior Judge assigned to the Superior Court.
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adjudication hearing.1 Because we are constrained to agree, we reverse and

remand to the trial court.

       On April 26, 2016, the court adjudicated K.C. dependent for

incorrigibility and a history of truancy. The facts underlying the adjudication

are not under dispute, so we decline to restate them fully here.       For the

convenience of the reader, we note briefly that DHS received a report

regarding K.C.’s behavior at home, where he often had violent outbursts.

K.C. had been referred to programs such as Big Brothers Big Sisters, but

they did not curtail his improper and sometimes violent behavior. On April

14, 2016, DHS filed a petition requesting that the court adjudicate K.C. a

dependent child, describing the violent and destructive incidents as well as

truancy issues. In the petition, DHS also requested that K.C. be allowed to

remain at home with his mother, and that the court enter a finding that DHS

had made reasonable efforts to prevent his placement.

       During a pre-hearing conference on April 26, 2016, the parties agreed

that K.C. should be adjudicated dependent. However, at the hearing, K.C.’s

mother stated, for the first time, that she did not want him to return home

with her.    Therefore, the parties also agreed that he be committed to the

custody of DHS that day, and that he undergo a psychiatric evaluation.


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1
  Federal funding for foster care program costs for K.C. will be denied to DHS
because of the trial court’s conclusion that it did not make reasonable efforts
to prevent the need for removal. See 42 U.S.C.A. § 672(a)(2)(ii).



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      At the adjudicatory hearing, counsel for DHS presented the pre-

hearing conference agreement to the trial court. The court heard testimony

related to the basis for adjudication and heard the recommendation of DHS

“to adjudicate K.C. dependent based on present inability and incorrigibility.”

(N.T. Hearing, 4/26/16, at 6-9).     DHS also stated its belief that it was

“contrary to the health, welfare and safety for [K.C.] to remain in the home

with [his] mother.”    (Id. at 9).   DHS conceded that it did not have a

placement for K.C. arranged on that date. (See id.). The court adjudicated

K.C. dependent based on incorrigibility and a history of truancy. (See id. at

20). It concluded that it was contrary to K.C.’s health, safety, and welfare

for him to stay in the home at the time. The court then explained:

      THE COURT: . . . I’m struggling with giving DHS reasonable
      efforts because it’s hard for me to believe that based on the face
      of this you would not come with a placement in hand.

      [DHS COUNSEL]: . . . I think it was just our impression that
      mother was okay with him remaining. . . .

      THE COURT: Even if that was her conversation, you guys have
      to have a concurrent plan. And see, the thing about it is fair or
      unfair I hold DHS to a higher standard . . . . So my whole thing
      is you had to come in here with a placement. You had to. So
      because of that I can’t give you reasonable efforts because it’s
      put me in a situation that I feel like I have to be planning for a
      child and that shouldn’t be my role here. So I can’t give you
      reasonable efforts.

(Id. at 20-21).

      On May 10, 2016, DHS filed a motion seeking reconsideration of the

court’s determination that it did not make reasonable efforts, alleging that

instead of applying the reasonable efforts standard applicable for required

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preplacement findings, 42 Pa.C.S.A. § 6351(b), the court erroneously

applied the standard for matters to be determined at a permanency hearing,

42 Pa.C.S.A. § 6351(f). The court denied the motion on May 24, 2016. This

timely appeal followed.2

       DHS raises three issues on appeal.

       1) Whether [DHS], a Pennsylvania Children and Youth Agency,
       may properly appeal that portion of the trial court’s order which
       denied that it made reasonable efforts to prevent a child’s
       placement, where the trial court applied the incorrect legal
       standard, where the facts do not support the trial court’s order
       under the correct legal standard, and where DHS faces
       significant financial penalties as a result of the trial court’s
       order[?]

       2) Whether the trial court erred as a matter of law in applying
       an incorrect legal standard when determining whether DHS
       made reasonable efforts to prevent or eliminate the need for the
       placement of K.C., a minor child[?]

       3) Whether 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 the placement of K.C., where K.C. was found by the trial
       court to be incorrigible and truant, and where K.C. was found to
       be non-compliant with preventative services[?]

(DHS’s Brief, at 4).3
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2
  On May 25, 2016, DHS filed its notice of appeal together with its concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i).
The trial court entered its opinion on August 5, 2016. See Pa.R.A.P.
1925(a)(2)(ii).
3
  DHS’s first issue was not included in its statement of errors complained of
on appeal. However, because it simply addresses the rule to show cause
issued by this Court on June 28, 2016, with respect to whether DHS had
standing to appeal, we will consider the argument.



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      In its first issue, DHS argues that because the court denied its request

for a finding of reasonable efforts, and such denial will result in a significant

financial burden from the loss of federal funding, it is an aggrieved party

with standing to appeal. (See DHS’s Brief, at 14-22). We agree.

      Our Rules of Appellate Procedure provide:

      Rule 501. Any Aggrieved Party May Appeal

      Except where the right of appeal is enlarged by statute, any
      party who is aggrieved by an appealable order, or a fiduciary
      whose estate or trust is so aggrieved, may appeal therefrom.

Pa.R.A.P. 501. “[A] party is ‘aggrieved’ when the party has been adversely

affected by the decision from which the appeal is taken.” In re J.G., 984

A.2d 541, 546 (Pa. Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010)

(citation omitted); see also In the Interest of W.M., 41 A.3d 618, 620

(Pa. Super. 2012) (permitting CYS appeal of no reasonable effort finding).

      Here, DHS has demonstrated that it is an aggrieved party because the

trial court denied it the full relief requested, a finding of reasonable efforts,

and because that denial causes DHS to be ineligible for federal funding for

the placement of K.C. See Pa.R.A.P. 501. Therefore, we conclude DHS has

standing to pursue the instant appeal. We agree with the first claim.

      In its second issue, DHS contends that the trial court erred because it

applied an incorrect legal standard when the court denied DHS’s request for

a finding that it made reasonable efforts to prevent the need for removal of

K.C. from his home.     (See DHS’s Brief, at 22-37).      Specifically, it argues

that the court did not properly apply the standard for preplacement findings


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set forth in 42 Pa.C.S.A. § 6351(b), but instead applied the standard

applicable for permanency hearings set forth in § 6351(f). (See id. at 22-

25). Upon careful review, we are constrained to agree.

            Our standard and scope of review in dependency cases is
      well settled.

                [W]e 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), appeal denied, 857 A.2d

679 (Pa. 2004) (citation omitted).

      Here, DHS challenges the trial court’s application of 42 Pa.C.S.A. §

6351, which sets forth guidelines applicable to various aspects of disposition

of dependent children. Section 6351 provides, in pertinent part:

      (b) Required preplacement findings.—Prior to entering any
      order of disposition under subsection (a) that would remove a
      dependent child from his home, the court shall enter findings on
      the record or in the order of court as follows:

              (1) that continuation of the child in his home would
         be contrary to the welfare, safety or health of the child;
         and


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             (2) whether reasonable efforts were made prior to
       the placement of the child to prevent or eliminate the need
       for removal of the child from his home, if the child has
       remained in his home pending such disposition; or

             (3) if preventive services were not offered due to the
       necessity for an emergency placement, whether such lack
       of services was reasonable under the circumstances; or

              (4) if the court has previously determined pursuant
       to section 6332 (relating to informal hearing) that
       reasonable efforts were not made to prevent the initial
       removal of the child from his home, whether reasonable
       efforts are under way to make it possible for the child to
       return home; and

              (5) if the child has a sibling who is subject to
       removal from his home, whether reasonable efforts were
       made prior to the placement of the child to place the
       siblings together or whether such joint placement is
       contrary to the safety or well-being of the child or sibling.

     The court shall not enter findings under paragraph (2), (3) or (4)
     if the court previously determined that aggravated circumstances
     exist and no new or additional reasonable efforts to prevent or
     eliminate the need for removing the child from the home or to
     preserve and reunify the family are required.

                                *    *    *

     (e) Permanency hearings.—

              (1) The court shall conduct a permanency hearing for
       the purpose of determining or reviewing the permanency
       plan of the child, the date by which the goal of
       permanency for the child might be achieved and whether
       placement continues to be best suited to the safety,
       protection and physical, mental and moral welfare of the
       child. . . .

                                *    *    *

     (f) Matters to be determined at permanency hearing.—At
     each permanency hearing, a court shall determine all of the
     following:



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               (1) The continuing necessity for and appropriateness
         of the placement.

                (2) The appropriateness, feasibility and extent of
         compliance with the permanency plan developed for the
         child.

              (3) The extent of progress made toward alleviating
         the circumstances which necessitated the original
         placement.

              (4) The appropriateness and feasibility of the current
         placement goal for the child.

               (5) The likely date by which the placement goal for
         the child might be achieved.

                (5.1) Whether reasonable efforts were made to
         finalize the permanency plan in effect.

42 Pa.C.S.A. § 6351(b), (e)(1), (f)(1)-(5.1).

      Here, 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, were 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.A. §§ 6351(b)(2), (3).    Rather, it based its

determination solely on DHS’s failure to have a concurrent plan and come

into the hearing with a placement. (See N.T. Hearing, 4/26/16, at 20-21).

The court explained that its decision was based on DHS’s assumed failure “to

exhaust reasonable efforts to properly plan for placement for K.C. after




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identifying the need for removal of this child from the home.” (Trial Court

Opinion, 8/05/16, at unnumbered page 3).4

       The April 26, 2016 hearing was an adjudicatory hearing where the

court found K.C. dependent and removed him from his home.            Therefore,

trial court was required to apply Section 6351(b) and determine, among

other things, (1) that continuation of K.C. in his home would be contrary to

his welfare, safety or health; and (2) whether reasonable efforts were made

prior to the placement of K.C. to prevent or eliminate the need for removal

of him from his home; or (3) if preventative services were not offered due to

the necessity for an emergency placement, whether such lack of services

was reasonable under the circumstances. See 42 Pa.C.S.A. §§ 6351(b)(1)-

(3).   Because it appears that the trial court misapplied Section 6351, and

applied the standard set forth under subsection (f), related to permanency

hearings, instead of subsection (b), we are constrained to conclude that the

trial court did not apply the appropriate standard and therefore abused its

discretion. See In re E.P., supra at 131. DHS’s second claim merits relief.

       In its third issue, DHS argues that the court erred as a matter of law in

holding that it failed to make reasonable efforts to prevent placement of K.C.

based upon the court’s finding that DHS did not have a permanent
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4
  We observe that DHS could not identify the need for removal until
immediately before the hearing when Mother, for the first time, requested
that K.C. be placed outside the home because of her fear of K.C. returning
home with her.



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placement plan at the time of the adjudication hearing. (See DHS’s Brief, at

4, 37-44). We agree.

     As discussed above, prior to entering an order of disposition that

removes a dependent child from his home, the court shall enter a finding

concerning “whether reasonable efforts were made prior to the placement of

the child to prevent or eliminate the need for removal of the child from his

home,” or “if preventive 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.A. § 6351(b)(2), (3).

     Here, the record is clear that up until the hearing, DHS did not seek

removal of K.C. from his home. (See N.T. Hearing, at 10, 21). We observe

that DHS could not identify the need for removal until mother changed her

mind at the prehearing conference, immediately before the hearing. (See

id. at 6, 9-10).     However, the trial court did not consider whether

reasonable efforts were made prior to the hearing to prevent removal of

K.C., or whether this was an emergency placement such that a lack of

services was reasonable. Rather, it based its conclusion solely on the fact

that DHS did not have a “placement in hand” during the adjudication

hearing. (Id. at 21). Therefore, we agree that the court erred as a matter

of law in making a reasonable efforts determination without considering the

criteria set forth in Section 6351(b)(2), (3). See In re E.P., supra at 131.

     Order vacated in part. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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