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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.V., A MINOR                     IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
APPEAL OF: D.S., MOTHER

                                                         No. 1211 EDA 2016


                Appeal from the Order Entered March 16, 2016
       in the Court of Common Pleas of Philadelphia County Family Court
                       at No(s): CP-51-DP-0001269-2015

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED JANUARY 24, 2017

        D.S. (“Mother”) appeals from the order entered in the Philadelphia

County Court of Common Pleas that directed the Department of Human

Services (“DHS”) to add a concurrent permanency plan of adoption for Z.V.,

born November 2008 (“Child”).1 Mother claims that the trial court erred in

changing the prior plan of reunification without a hearing.          We vacate the

order and remand for further proceedings.

        The relevant procedural history is as follows. On May 10, 2015, DHS

obtained an order of protective custody (“OPC”) regarding Child based on

reports    that   Mother   repeatedly   hit   Child   with   different   implements.

Following a shelter care hearing, the trial court, with the Honorable Vincent

L. Johnson presiding, granted DHS legal and physical custody over Child.

Child was initially placed with Child’s maternal grandmother.

*
    Former Justice specially assigned to the Superior Court.
1
    Child’s father is deceased.
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      On May 15, 2015, DHS filed a dependency petition regarding Child.

DHS    asserted   aggravated    circumstances,    namely,    the    involuntary

termination of Mother’s parental rights to Child’s sibling. Dependency Pet.,

Statement of Facts, 5/15/15, at ¶¶ l-m. On May 27, 2015, the trial court

adjudicated Child dependent and set a permanent placement plan of “return

to guardian.” Order 5/27/15, at 1. The court referred Mother to the Clinical

Evaluation Unit for a drug screen and a dual diagnosis assessment. Id. at 2.

      On July 29, 2015, following a permanency review hearing, the trial

court entered an order indicating Mother did not meet the criteria for

substance abuse intervention.    Order, 7/29/15, at 1.      The court referred

Mother to Behavioral Health Systems for a consultation or evaluation and

directed the Community Umbrella Agency (“CUA”) to refer Mother to anger

management counseling. The court directed that Child be placed in foster

kinship care with Child’s maternal aunt.

      On December 16, 2015, the trial court convened a permanency review

hearing.   At the beginning of the hearing, DHS’s counsel indicated that a

ruling on DHS’s allegations of aggravated circumstances had been deferred.

N.T., 12/16/15, at 5. DHS entered copies of a September 29, 2004 order

involuntarily terminating Mother’s parental rights to Child’s sibling into the

record. Id. DHS’s counsel requested that DHS make no reasonable efforts

toward reunification.   Id.   Following arguments by Mother’s counsel, the

court directed that “no reasonable efforts are needed.” Id. at 7.



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      DHS presented additional testimony from Child’s CUA case manager,

who   indicated   that   visitation   had    been     suspended    based       on   the

recommendation of Child’s therapist.          Id. at 9-10.        Mother’s counsel

objected suggesting that DHS did not present evidence of a grave threat to

Child. Id. at 10. In response, DHS presented the case manager’s testimony

that Child reported (1) her sibling sexually abused her when Child and

sibling were in Mother’s care, (2) Mother and Child’s sibling taught Child

sexual behaviors, and (3) Child placed a firearm against her own head

because her Mother told Child she was “bad.” Id. at 16-18. DHS’s counsel

indicated that child protective services reports were made in September, and

the matter was “being investigated.” Id. at 18. Moreover, DHS’s counsel

averred, “I believe [the reports] have been substantiated.” Id. The court

determined that visitation with Mother constituted a grave threat to Child

and ordered visitation be permanently suspended unless it occurred in a

therapeutic setting. Id. at 19.

      Following the December 16, 2015 hearing, the trial court entered a

permanency    review     order   memorializing      its   suspension    of   visitation.

Permanency Review Order, 12/16/15, at 1.              However, the court did not

change the permanent placement plan of reunification.                  See id. at 1.

Additionally, the court directed that CUA refer Mother for a parenting

capacity evaluation and that Mother continue with therapy.              See id. at 2.

The court scheduled a permanency review hearing for March 2016.



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        The trial court also entered a separate aggravated circumstances

order finding the existence of aggravated circumstances and directing the

cessation of efforts “to preserve the family and reunify [Child and Mother].”

Aggravated Circumstances Order, 12/16/15, at 1. In that order, the court

directed that a hearing be held within thirty days.2 Id.

      A hearing was not held within thirty days of the trial court’s

aggravated circumstances order, and the matter proceeded to a permanency

review hearing held on March 16, 2016, before the Honorable Lyris Younge.

At that hearing, DHS initially recited the procedural history of the matter.

DHS called the CUA case manager to testify.            During the witness’s

testimony, the court interceded and the following exchange occurred:

         THE COURT: So let me just say this. Given that on
         December 16, 2015 Judge Johnson made the finding, no
         efforts are to be made to preserve the family, reunify
         [Child] with [Mother] we don’t have to go through
         objectives on [Mother] and where she is and everything
         like that because that’s the court order. So there was no
         appeal taken of that December 16th order and therefore
         that stands. So I don’t need any objectives put on the
         record as to [Mother] because the Court has already made
         a finding that there are to be no efforts to reunify.

         [Mother’s counsel]: Your Honor, just one clarification note.
         Your Honor is in agreement that [M]other can still make
         her own efforts, isn’t that correct?

         THE COURT: I don’t know what that looks like because
         right now she doesn’t have visits because they’ve been

2
  The parties and the trial court did not discuss the scheduling of a hearing
within thirty days of the December 16, 2015 hearing. See N.T., 12/16/15,
at 27.



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       suspended at the recommendation of the therapist. And
       [the CUA case manager] just testified that that is still the
       recommendation of the therapist, no contact, no visits.

       [Mother’s counsel]: But, Your Honor, there’s much more
       thorough recommendations in the report, that I think you
       were just handed, from [the Children’s Crisis Treatment
       Center].

       THE COURT: Okay.

       [Mother’s counsel]: You know, in terms of reasonable
       efforts even if the department has no affirmative obligation
       the parent’s rights are not terminated yet and she has the
       right to make her own efforts.

       THE COURT: Well considering that the order was made
       that there are no efforts to be made as to reunification,
       reunification is no longer the permanency goal.       The
       permanency goal for [Child] now goes to either adoption or
       [permanent legal custody (“PLC”)].

       [Mother’s counsel]: Your Honor, that goal was not changed
       and we didn’t have a goal change hearing for that.

       THE COURT: Well I’m changing the goal because
       essentially it was already done at the last court date. If
       [Mother] doesn’t have to work on objectives and the Court
       has already said very clearly on December 16th that no
       efforts are to be made to preserve the family and reunify
       [Child] with [Mother], then essentially there is no
       reunification goal. The goal is adoption or PLC, whichever
       is appropriate in this case. And it really would be adoption
       because of the age of the child. So with that in mind—that
       decision was made before I got here.

       [Mother’s counsel]: So your ordering that the goal is
       changed to adoption today?

       THE COURT: The goal has—even though Judge Johnson did
       not make the goal change. Given his order, reunification is
       not a viable option. So therefore today I’m making the
       order that the goal is now adoption for [Child] based on his
       previous ruling.    He took testimony.       He made that


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        decision and so therefore, based on that, we don’t have to
        get into objectives or anything like that. The goal is
        adoption.

        [Mother’s counsel]: Your Honor, please note my objection.

N.T., 3/16/16, at 13-15.

     Following the March 16, 2016 hearing, the trial court entered the

instant permanency review order. The order indicated that the permanent

placement goal was “return to parent or guardian” and added a concurrent

placement plan of adoption.      Order, 3/16/16, at 1.     The court further

directed:

        THE DHS GOAL IS CHANGED TO ADOPTION.                THE
        CURRENT COURT GOAL IS REUNIFICATION UNTIL
        PETITIONS ARE FILED. A meeting among the parties is to
        occur within 30 days to discuss the appropriate goal.
        Reunification has been ruled [out3] as to [Mother] as a
        viable goal.

Order, 3/16/16, at 2.

     Mother timely appealed from the March 16, 2016 order, and

contemporaneously filed a Pa.R.A.P. 1925(a)(2)(i) statement. The trial court

filed a responsive opinion, suggesting that the appeal be quashed based on

Mother’s failure to appeal the December 16, 2015 orders or, in the

alternative, that the March 16, 2016 order be affirmed based on the court’s


3
  Although the order states, “Reunification has been ruled as to [Mother] as
a viable goal[,]” it is apparent that the court intended to rule out Mother as
a viable resource for reunification.       See N.T., 3/16/16, at 14 (noting
“reunification is not a viable option”), 26. Therefore, we have altered the
original order for the purpose of clarity.



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consideration of the best interests of the child. See Trial Ct. Op., 5/16/16,

at 6-7, 8.

      Mother presents the following question for review: “Did the [trial

court] err in [o]rdering, without a hearing, that reunification with Mother is

ruled out, and that the DHS goal be changed to adoption?” Mother’s Brief at

4.   Mother argues that the trial court changed the permanency plan, and

that she was entitled to a hearing under Section 6351(e) of the Juvenile Act

to determine the factors set forth in Section 6351(f) and (f.1).      Id. at 20.

She further contends that the trial court erred by denying her “an

opportunity to present evidence as to whether the goal should be changed.”

Id. Relief is due.

       Preliminarily, we consider the trial court’s suggestion that this appeal

must be quashed. The court opines that the present appeal from the March

16, 2016 order is improper because Mother did not appeal the December 16,

2015 order.   See Trial Ct. Op. at 6-7.     The court suggests that it did not

change the goal, but made explicit a change that was implicit in the

December 16, 2015 aggravated circumstances order.            We agree in part,

disagree in part, and conclude that the appeal is properly before us.

      It is well settled that jurisdictional issues, such as the appealability of

an order, raise legal questions over which our review is de novo and plenary,

and which may be considered sua sponte.         See Mensch v. Mensch, 713

A.2d 690, 691 (Pa. Super. 1998).          An order finding that aggravating



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circumstances exist and suspending reunification efforts is an appealable

order. In re C.B., 861 A.2d 287, 289 n.1 (Pa. Super. 2004). Moreover, an

order granting or denying a goal change, even if it maintains the status quo,

is appealable.   See In re H.S.W.C.-B, 836 A.2d 908, 909 (Pa. 2003).           A

notice of appeal, however, must “be filed within 30 days after the entry of

the order from which the appeal is taken.” Pa.R.A.P. 903(a).

      We agree with the trial court that Mother can no longer appeal the

court’s   December    16,    2015   order   determining   that   (1)   aggravated

circumstances existed, (2) DHS need not undertake reasonable efforts

toward reunification, and (3) visitation posed a grave threat to Child.

Mother did not appeal within thirty days of that order.           See Pa.R.A.P.

903(a); In re C.B., 861 A.2d at 289 n.1. However, the trial court’s March

16, 2016 order added the concurrent placement plan of adoption.              See

Order, 3/16/16, at 1.       That change is appealable even if it purported to

maintain the status quo.         See in re H.S.W.C.-B, 836 A.2d at 909.

Therefore, we decline to quash this appeal.

      The Pennsylvania Supreme Court has stated that

          the standard of review in dependency cases requires an
          appellate court to accept the findings of fact and credibility
          determinations of the trial court if they are supported by
          the record, but does not require the appellate court to
          accept the lower court's inferences or conclusions of law.
          Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).

      The relevant provisions of Section 6351 are as follows:


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        (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. In any permanency hearing held
           with respect to the child, 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. If the court
           does not consult personally with the child, the court
           shall ensure that the views of the child regarding the
           permanency plan have been ascertained to the fullest
           extent possible and communicated to the court by the
           guardian ad litem under section 6311 (relating to
           guardian ad litem for child in court proceedings) or, as
           appropriate to the circumstances of the case by the
           child’s counsel, the court-appointed special advocate or
           other person as designated by the court.

           (2) If the county agency or the child’s attorney alleges
           the existence of aggravated circumstances and the
           court determines that the child has been adjudicated
           dependent, the court shall then determine if aggravated
           circumstances exist. If the court finds from clear and
           convincing evidence that aggravated circumstances
           exist, the court shall determine whether or not
           reasonable efforts to prevent or eliminate the need for
           removing the child from the child's parent, guardian or
           custodian or to preserve and reunify the family shall be
           made or continue to be made and schedule a hearing as
           provided in paragraph (3).

42 Pa.C.S. § 6351(e)(1)-(2).

     With respect to the scheduling of permanency review hearings, Section

6351(e) directs:

        (3) The court shall conduct permanency hearings as
        follows:


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                                   *      *     *

             (i) Within six months of:

                                   *      *     *

                (B) each previous permanency hearing until the child
                is returned to the child’s parent, guardian or
                custodian or removed from the jurisdiction of the
                court.

             (ii) Within 30 days of:

                                   *      *     *

                (B) a permanency hearing at which the court
                determined that aggravated circumstances exist and
                that reasonable efforts to prevent or eliminate the
                need to remove the child from the child’s parent,
                guardian or custodian or to preserve and reunify the
                family need not be made or continue to be made and
                the permanency plan for the child is incomplete or
                inconsistent with the court’s determination[.]

42 Pa.C.S. § 6351(e)(3)(i)(B), (ii)(B).

        The purposes of the hearing are for the trial court to determine, inter

alia:

          (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[,
          and]

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

42 Pa.C.S. § 6351(f)(2)-(4).



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     Section 6351(f.1) further requires the trial court to determine:

        (1) If and when the child will be returned to the child’s
        parent, guardian or custodian in cases where the return of
        the child is best suited to the safety, protection and
        physical, mental and moral welfare of the child[, or]

        (2) If and when the child will be placed for adoption, and
        the county agency will file for termination of parental
        rights in cases where return to the child’s parent, guardian
        or custodian is not best suited to the safety, protection and
        physical, mental and moral welfare of the child.

42 Pa.C.S. § 6351(f.1)(1)-(2).

     The Pennsylvania Supreme Court has stated:

        concurrent planning involves a dual-track system by which
        agencies are encouraged to provide simultaneous services
        aimed at both reunification and adoption. . . .
        [C]oncurrent planning developed to address the problem of
        foster care drift, where children languished in the foster
        care system while their parents unsuccessfully attempted
        to regain custody. Rather than waiting to pursue adoption
        options until all reunification attempts fail, concurrent
        planning allows children to move more quickly through the
        dependency system and into the permanent placement
        best suited to their individual situation through
        simultaneous pursuit of reunification and alternative
        permanent placement.

In re R.J.T., 9 A.3d at 1186 (citations omitted). “[C]oncurrent planning is a

best practice” that “is especially useful early in the proceedings when it is

unclear whether the parents will be able to learn to parent their children.”

In re T.S.M., 71 A.3d 251, 269-70 (Pa. 2013).          However, “concurrent

planning should not be used to prolong instability for children when it

becomes clear that parents will be unable to provide their children’s basic

needs in the near future.” Id. at 270.


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       Following our review, we are constrained to conclude that the trial

court abused its discretion.   The court was charged with determining “the

appropriateness, feasibility and extent of compliance with the permanency

plan developed for the child” and “[t]he extent of progress made toward

alleviating the circumstances which necessitated the original placement.”

See 42 Pa.C.S. § 6351(f)(2)-(3).        The court, however, relied on the

December 16, 2015 order finding that aggravated circumstances existed, no

reasonable efforts at reunification were necessary, and visitation would pose

a grave threat. In so doing, it took only limited testimony from DHS. See

N.T., 3/16/16, at 10. Therefore, we agree with Mother that the court could

not have considered properly whether the permanency plan developed for

Child was appropriate or feasible, whether Mother was in compliance with

the plan, and whether any progress had been made toward alleviating the

circumstances necessitating the placement.    See 42 Pa.C.S. § 6351(f)(2)-

(3).

       In sum, we conclude that the trial court failed to conduct an adequate

hearing to address the plan change or find Mother was not a viable resource

for reunification. Therefore, we must remand this matter for a new hearing.

Because we decide this appeal on the basis that Mother is entitled to a new

hearing, we do not express an opinion as to whether there was sufficient

evidence justifying the court’s decision to add the concurrent plan for

adoption, its determination that Mother was not a viable resource, or its



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suggestion that the change in the permanency plan was in the best interests

of Child.

Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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