J-S72008-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: P.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: P.L.H., MOTHER : : : : : No. 1009 MDA 2018
Appeal from the Order Entered June 18, 2018 In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-DP-0000041-2016
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J. MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2019
P.L.H. (“Mother”) appeals from the order dated May 25, 2018, and entered on June 18, 2018, wherein the juvenile court changed the permanent placement goal for her minor daughter, P.H., from reunification to adoption. We affirm.
P.H. was born in October of 2006. She came to the attention of Cumberland County Children and Youth Services (“CYS”) on March 1, 2016. At that time, CYS received a report indicating that Mother had been arrested and incarcerated for threatening to shoot an employee of a local business. Mother disclosed that she and P.H. had been living out of Mother’s vehicle for the prior two weeks. She refused to provide any information regarding P.H. beyond her first name. Mother also told P.H. to provide no additional information to CYS. Despite Mother’s lack of cooperation, CYS located P.H.’s J-S72008-18
maternal grandmother, J.H., who indicated that she could not be a placement resource because of her husband’s health. On March 17, 2016, the juvenile court adjudicated P.H. dependent. Thereafter, the juvenile court conducted a series of permanency review hearings. At each permanency review hearing, the juvenile court determined Mother’s compliance with her permanency plan to be moderate. However, Mother’s visitation with P.H. was initially inconsistent.[1] On May 25, 2018, the court conducted another permanency review hearing. At that time, P.H. had resided in the same foster home since her initial placement in March 2016. The eleven year old informed the juvenile court that she wanted the court to decide whether to return her to Mother’s care or move towards adoption. While P.H. expressed a desire to return to Mother, she also recognized that a return to Mother might not be the “best idea,” and that she needed finality. Specifically, she responded the juvenile court’s inquiry as follows, “I would always go back to my mom first. But if you think that’s not the best idea, then I would go with – to adoption.” 2 N.T., 5/25/18, at 6. In addition to P.H., CYS ____________________________________________ 1 Based on Mother’s recurring failure to visit with P.H., CYS filed a petition to change P.H.’s permanency goal to adoption in December of 2016. The court denied the petition “to give Mother every opportunity to work towards reunification.” Permanency Review Order, Additional Findings, 1/17/17. 2 Marylou Matas, Esquire was the guardian ad litem who represented P.H. during the permanency review hearing. Considering P.H.’s statements in favor of Mother, we recognize the potential for an appearance of a conflict
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presented the testimony of Kasey Shienvold, Psy.D., and CYS caseworker Gan Fry. P.H., through her guardian ad litem, presented the testimony of her foster mother, K.B. Mother did not appear for the hearing. However, she was represented by counsel.[3] Following the hearing, the juvenile court issued an
____________________________________________ between Attorney Matas’s representation of P.H.’s legal interest and her best interests. In In re J’K.M., 191 A.3d 907 (Pa.Super. 2018), this Court concluded that a trial court erred in rejecting a parent’s request for the appointment of a separate guardian ad litem to represent her child’s legal interest pursuant to 42 Pa.C.S. § 6311(b) and the concomitant rules of juvenile court procedure regarding the powers and duties of a guardian ad litem. Additionally, while the parties do not raise this issue, we may address it sua sponte because it implicates a child’s statutory right to legal representation. See In re K.J.H., 180 A.3d 411, 413 (Pa.Super. 2018); In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018). However, further proceedings are not warranted herein. Unlike the sixteen-year old child in J’K.M., who effectively demanded to be returned to her mother because she felt betrayed by the juvenile dependency system, P.H.’s positon actually coalesced with the guardian ad litem’s position insofar as both agreed that reunification with Mother was not the optimal outcome. Stated another way, while P.H. indicated a partiality toward Mother, her preference was for finality. Specifically, she testified, “I just want [you] to make a decision. I don’t really want to wait any longer. I want it to be adoption or with my mom. I’m tired of waiting. I think it’s been like a year or two years or so.” N.T., 5/25/18, at 6. In this context, the positions of the child and guardian ad litem aligned in a manner that was absent in J’K.M. Accordingly, we decline to find that the trial court erred in neglecting to interpret the child’s qualified preference for Mother as grounds to appoint separate counsel in this dependency case. [3] The court appointed Mother several different counsel. The transcript of the May 25, 2018 hearing reflects that Mother typically proceeded pro se, with court-appointed counsel assisting her as needed. N.T., 5/25/18, at 30. Attorney Joseph Hitchings represented Mother at the hearing and with respect to this appeal.
[*3]J-S72008-18 order changing P.H.’s permanency goal to adoption. The order also suspended visitation between Mother and P.H.
Mother timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 1925(b).
On appeal, Mother raises the following questions for our review, which we reordered for ease of disposition:
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notes that she did not appear for the permanency review hearing and claims that she was not aware that a goal change would be considered. Id. at 13. She relies on both the 14th Amendment of the United States Constitution and Pennsylvania Rule of Juvenile Court Procedure 1601 to support her argument that the failure of the court to specifically advise her that it would consider the goal change deprived her of her right to due process.4 Mother acknowledges that her argument relies upon the language of Rule 1601 as amended effective October 1, 2018, four months after the hearing in question. Id. at 13-14. However, she asserts that the new rule represents “best practices” that the trial court should have utilized during the permanency review hearing regardless of its effective date. Id. at 15. For the reasons that follow, we disagree.
The juvenile court rejected Mother’s argument:
[Mother] contends that because we “sua sponte” changed the goal at the permanency review hearing on May 25, 2018, her right to notice was violated. Section 6351 of the [Juvenile] Act requires us to have permanency review hearings every six (6) months. At each permanency hearing, the court shall determine “[t]he appropriateness and feasibility of the current placement goal for the child.” Id. at § 6351(f)(4). ____________________________________________
4 Mother’s claim relies upon Rule 1601(B), a new subparagraph that provides for notice of a petition for a goal change as follows:
B. If a party intends to request a goal change from reunification, then either the notice shall state this purpose or the party shall give separate notice of the intended goal change in accordance with paragraph (A). Pa.R.J.C.P. 1601(B) (effective October 1, 2018).
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While an agency typically files a petition to change a goal in a dependency proceeding, there is nothing in the Juvenile Act, case law or rules of procedure prohibiting the [c]ourt from ordering the Agency to change the permanency goal at any time when it is clear that reunification is not viable. Simply stated, there is no statutory requirement that a juvenile court must provide express notice that it is contemplating a goal change. The statute itself provides notice that the juvenile court may modify a goal at any permanency hearing. Juvenile Court Opinion, 8/27/18, at 7-8.
We discern no error in the juvenile court’s analysis. “A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.Super. 2017). “Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues.” Brooks– Gall v. Gall, 840 A.2d 993, 997 (Pa.Super. 2003) (recognizing that dependency proceedings implicate due process concerns). It is well settled that “procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” S.T. v. R.W., 192 A.3d 1155, 1161 (Pa.Super. 2018). “The right of a litigant to in-court presentation of evidence is essential to due process; in almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” M.O. v. F.W.,
42 A.3d 1068, 1072 (Pa.Super. 2012).
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In In Interest of L.T., 158 A.3d 1266, 1278 (Pa.Super. 2017), this Court confronted a similar challenge to a juvenile court’s sua sponte goal change based, in part, upon the best practices espoused in the Dependency Benchbook, and we concluded that the Juvenile Act not only forewarns that the issue of a goal change could be resolved during a permanency review hearing as a matter of course, but it also mandates that the juvenile court decide whether to continue, modify or terminate placement during every permanency review hearing. We explained,
It is irrelevant that the juvenile court’s decision to change the permanency goals did not follow a typical procedural course. As the notation that Mother seeks to invoke states explicitly, there is no statutory requirement that a juvenile court must provide express notice that it is contemplating a goal change. Indeed, while Mother is correct in noting that the Dependency Benchbook refers to goal change hearings, the Juvenile Act does not discuss goal change hearings or mention the phrase “goal change” at all. In In re R.J.T., supra at 1183 n.6, our Supreme Court highlighted that the phrase “goal change,” is used as a term of art that is synonymous with the juvenile court’s mandated determination regarding “the continuation, modification or termination of placement” that a juvenile court must render pursuant to 42 Pa.C.S. § 6351(f), (f.[1]), and (g) at the conclusion of every permanency hearing. Id. (“We conclude that an order to continue, modify, or terminate the current placement, as required by the statute, is synonymous with a decision to continue or change the permanency plan goal.”).
Moreover, while Mother concedes that the Juvenile Act authorizes juvenile courts to alter permanency goals sua sponte, she focuses on the Dependency Benchbook’s notation that, having initiated the issue, some judges elect to schedule a goal change hearing during the next scheduled permanency review hearing. She reasons that, since the juvenile court did not provide advance notice that it was going to contemplate the goal change at the June 2016 hearing, the court erred in addressing that issue. Mother is mistaken. While it is clear from the foregoing notation
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that the authors of the Dependency Benchbook recommend that trial courts issue prior notice of a goal change, the statute forewarns the parties that the issue will be addressed as a matter of course during every permanency review hearing.
Regardless of the Dependency Benchbook’s observation concerning the scheduling preferences of “some” judges, the Juvenile Act remains the dispositive authority in dependency cases. As we discussed, supra, § 6351 of the Juvenile Act directs that a juvenile court not only consider the appropriateness and feasibility of a child’s current goal during the permanency review hearings, it also mandates that the court enter an order addressing whether to continue, modify or terminate placement. See 42 Pa.C.S. § 6351(f)(4), (f.[1]), and (g).[5] Hence, despite ____________________________________________
5 As it relates to permanency review hearings, in addition to § 6351(f)(4), which we reproduced supra, the Juvenile Act provides as follows:
(f.[1]) Additional determination. — Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
(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.
(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.
(3) If and when the child will be placed with a legal custodian in cases where return to the child’s parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.
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Mother’s complaint that she was not provided notice that a goal change would be at issue during the June 2016 permanency review hearing, a review of the current goal’s feasibility is a required component of every permanency review hearing. In Interest of L.T., supra at 1278.
Identical principles apply herein. Mother was served with notice of the permanency review hearing, as well as a copy of CYS’s petition for a permanency review hearing. That petition requested that the court determine the appropriateness and feasibility of the current goal. Although CYS did not file a formal petition to change P.H.’s permanency goal to adoption, as we ____________________________________________
(4) If and when the child will be placed with a fit and willing relative in cases where return to the child’s parent, guardian or custodian, being placed for adoption or being placed with a legal custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the child’s parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and willing relative.
....
(g) Court order.— On the basis of the determination made under subsection (f.[1]), the court shall order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child.
42 Pa.C.S. § 6351(f.[1]), and (g) (emphasis added).
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explained in In Interest of L.T., supra, the very nature of the permanency review hearing required the juvenile court to determine whether P.H.’s permanency goal was appropriate. See id. at 1278 (“a review of the current goal’s feasibility is a required component of every permanency review hearing”). Having received notice of the permanency review hearing, Mother was on notice that the court could change P.H.’s permanency goal, including changing her permanency goal to adoption. Accordingly, contrary to Mother’s protestations, the juvenile court did not violate Mother’s due process rights or the Juvenile Act when it changed P.H.’s permanency goal to adoption.
Next, we address Mother’s contention that the juvenile court erred in changing P.H.’s permanent placement goal from reunification to adoption. With regard to our review of a goal change in a dependency case, this Court recently set forth the following:
In cases involving a court’s order changing the [court- ordered] goal . . . to adoption, our standard of review is abuse of discretion. To hold that the trial court abused its discretion, we must determine its judgment was manifestly unreasonable, that the court disregarded the law, or that its action was a result of partiality, prejudice, bias or ill will. While this Court is bound by the facts determined in the trial court, we are not tied to the court’s inferences, deductions and conclusions; we have a responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate principles to that record. Therefore, our scope of review is broad.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted); see also In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010).
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In In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007), this Court stressed that the focus of dependency proceedings is upon the best interest of the children and that those considerations supersede all other concerns, “including the conduct and the rights of the parent.” Again, in In the Interest of D.P., 2009 PA Super 86, 972 A.2d 1221, 1227 (Pa. Super. 2009), we explained, “In a change of goal proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent’s rights are secondary.” Id. Likewise, this Court has held, “a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.” In re N.C., 2006 PA Super 285, 909 A.2d 818, 824 (Pa. Super. 2006) (quoting In re Adoption of M.E.P., 2003 PA Super 210, 825 A.2d 1226, 1276 (Pa. Super. 2003)).
With those principles in mind, we outline the relevant considerations set forth in the Juvenile Act regarding permanency planning:
Pursuant to § 6351(f),[6] of the Juvenile Act, when considering a petition for a goal change for a dependent ____________________________________________
6 Regarding permanency, § 6351(f), provides:
(f) Matters to be determined at permanency hearing.— At each permanency hearing, a court shall determine all of the following:
(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.