Interest of L.T. & D.T., minors, Appeal of: A.Z. , 158 A.3d 1266 ( 2017 )

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2017 Pa. Super. 93
IN THE INTEREST OF: L.T. AND D.T., IN THE SUPERIOR COURT OF
MINOR CHILDREN ADJUDICATED PENNSYLVANIA
DEPENDENT
APPEAL OF: A.Z., NATURAL MOTHER
No. 1032 WDA 2016
Appeal from the Order Entered June 6, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 25 and 26 2016
IN THE INTEREST OF: L.T. AND D.T., IN THE SUPERIOR COURT OF
MINOR CHILDREN ADJUDICATED PENNSYLVANIA
DEPENDENT
v.
APPEAL OF: A.Z., NATURAL MOTHER
No. 1035 WDA 2016
Appeal from the Order Entered June 16, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 26 2016
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED APRIL 07, 2017
A.Z. (“Mother”) appeals from the respective orders entered on June 6,
2016, wherein the juvenile court changed the permanent placement goals of
* Retired Senior Judge assigned to the Superior Court.
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her two children, L.T. and D.T., from reunification to adoption. 1 In addition,
Mother appeals the June 16, 2016 order that awarded Erie County Office of
Children and Youth Services (“CYS”) authority to make all medical
determinations, including end of life decisions, relating to D.T.2 We reverse
the permanency review order relating to L.T., dismiss the appeal from the
order relating to D.T.’s end of life decisions, and remand for further
proceedings.
L.T. and D.T. were born during October 2014 and September 2015,
respectively. D.T. died on July 15, 2016 as a result of non-accidental
traumatic brain injuries sustained during February 2016, while in the care of
N.T. (“Father”).3 Specifically, then-four-month-old D.T. sustained a skull
fracture and hematoma on the right side of his brain. The child presented at
UPMC Hamot in Erie, Pennsylvania, unresponsive and in critical condition due
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1
Mother concedes that the goal change order relating to D.T. is moot
because that child is now deceased. See Mother’s brief at 30 n.10.
Accordingly, we address only the portion of the juvenile court order relating
to L.T.
2
While Mother purports to appeal the June 16, 2016 order as to both
children, the certified record confirms that the pertinent order related only to
D.T. and was entered at 26 of 2016, the action number corresponding to
D.T. The court did not enter a correlating order at L.T.’s action number.
3
Father was ultimately arrested and charged with criminal homicide,
aggravated assault, simple assault, and endangering welfare of children. As
of the date of this opinion, Father remained incarcerated while awaiting trial.
He did not appeal either of the orders we address herein.
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to elevated intracranial pressure. He was subsequently transferred to
Children’s Hospital in Pittsburgh. The physicians characterized D.T.’s injuries
as near-fatal child abuse.
CYS obtained protective custody of the siblings and filed petitions
alleging that L.T. and D.T. were dependent under § 6302 of the Juvenile Act,
in that they lacked proper parental care and control. On March 16, 2016,
Mother and Father stipulated to the adjudications of dependency for the
reasons that CYS stated in its petitions. Significantly, aggravated
circumstances were neither alleged in the dependency petitions nor found by
the trial court to exist against either parent.4 The juvenile court awarded
CYS legal and physical custody of the children. D.T. remained in a medically
induced coma at Children’s Hospital of Pittsburgh, where he was expected to
remain hospitalized indefinitely. CYS placed L.T. in kinship care with her
maternal grandmother (“Grandmother”).
The court-ordered permanency goal was reunification, and the juvenile
court granted Mother a pair of two-hour supervised visitations with L.T. per
week at Grandmother’s home. However, Mother, who was recovering from
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4
The statutory definition of aggravated circumstances incudes situations
where, “[t]he child or another child of the parent has been the victim of
physical abuse resulting in serious bodily injury, sexual violence or
aggravated physical neglect by the parent.” 42 Pa.C.S. § 6302. Instantly, a
finding of aggravated circumstances against Mother or Father would have
effectively alleviated CYS’s obligation to employ reasonable efforts to reunify
the children with that parent.
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an automobile collision that Father intentionally caused, was prohibited from
residing in the home with her daughter. Mother was granted visitation with
D.T. “as often as she is able to visit” the medical facility. Dispositional
Order, 4/8/16, at 3. Although the Commonwealth had not yet leveled
criminal charges against Father, the juvenile court suspended Father’s
visitation with D.T. indefinitely and precluded Father from supervised
visitation with L.T. until he demonstrated compliance with the sobriety and
parenting components of the court-ordered services. Prior to making any
progress toward the visitation prerequisite, Father was arrested in the
underlying criminal case and confined to county jail. Given the seriousness
of the dependency case, the juvenile court fashioned an abbreviated
calendar and scheduled the first permanency review hearing on June 1,
2016, approximately thirty days from the date of the dispositional order.
At the outset of the June 2016 hearing, CYS noted the presence in the
court room of an unidentified media outlet and objected to its participation in
the closed juvenile proceeding. The respective guardians ad litem for both
children, Mother, and Father all joined the agency’s objection. The juvenile
court overruled the collective objections noting that, “given the fact that this
case already [garnered] a significant amount of media attention because of
[Father’s] criminal cases[,]” no compelling state interest existed to close the
court room. N.T., 6/1/16, at 4. Accordingly, the juvenile court permitted
the media to attend the permanency review hearing. Id. at 6.
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Next, in addressing the proposed testimony of D.T.’s nurse regarding
the child’s status, treatment, and prognosis, the trial court noted, sua
sponte, that it was contemplating changing both children’s permanency
goals from reunification to adoption. Specifically, the court stated, “The
agency is recommending a goal of reunification, but from what I’m looking
at in the summary [prepared by the CYS caseworker], I am not sure I’ll go
along with it. So for all intents and purposes this is a change of goal
hearing.” Id. at 7.
During the hearing, CYS presented the testimony of Patty Bush, the
CYS caseworker assigned to the family, and Tina Ferraro, the director of
Project First Step, the organization tasked with providing Mother
reunification and visitation services. As noted supra, D.T.’s nurse testified
about his current condition, and Mother testified on her own behalf. Distilled
to its essence, the combined testimony from the agency’s two witnesses
branded Mother as immature, possessing a mentality of entitlement, and
dependent upon others for satisfying routine obligations. For example,
expecting to be evicted from subsidized housing on the day of the hearing
due to the non-payment of utilities, both witnesses stressed that Mother
resided in squalor and lacked any concrete plans to obtain suitable housing.
In sum, Mother did not demonstrate the urgency that Ms. Bush and Ms.
Ferraro believed the situation demanded.
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However, the witnesses both testified that, while Mother’s current
situation remained unacceptable, she had made an effort toward
reunification during the brief period that they were involved in the case.
Specifically, Ms. Bush stated that Mother started, but had not yet completed,
a psychological evaluation and parenting and domestic violence programs.
Indeed, CYS’s petition for a permanency hearing and the summary that Ms.
Bush prepared for the juvenile court in anticipation of that hearing
recommended that the agency continue providing Mother reunification
services. During the hearing, however, she expanded the recommendation
to include “looking for an adoptive resource for [L.T.]” Id. at 38.
Similarly, Ms. Ferraro indicated that Mother had not progressed in the
one month that she had been in the program. She had various interactions
with Mother, including the intake interview and two supervised visitations
with L.T. Ms. Ferraro characterized Mother’s demeanor as agitated and
defensive, and she noted her primary concern that Mother appeared to lack
motivation. Nonetheless, Ms. Ferraro did not recommend terminating
services at that juncture. To the contrary, she stated, “I will work with her
as long as she’s willing to work on herself.” Id. at 72.
At the close of evidence, the juvenile court invited brief argument
about the children’s permanency goals. It stated, “I’m certainly not leaving
the goal of reunification.” Id. at 101. Mother and Father persisted in
arguing that reunification was an appropriate goal in light of the fact that the
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family had only been in service for two and one-half months. Similarly,
L.T.’s guardian ad litem recommended concurrent goals of reunification and
adoption because the dependency proceeding was in an early stage. Id. at
105 (“Having said that, we are only two and a half months in[.]”). D.T.’s
guardian ad litem advocated changing the goals to adoption. Id. at 105.
Likewise, while CYS’s pre-hearing filings recommended continuing the goals
of reunification, following the hearing, the agency argued to change the
goals to adoption. Thereafter, the trial court announced its intention to
change the children’s permanency goals to adoption. Two days later, the
juvenile court entered a permanency review order memorializing the goal
change and directing CYS to cease its services to Mother, including
visitations, and to pursue the termination of parental rights. Mother filed a
timely appeal and a concomitant statement of errors complained of on
appeal pursuant to Pa.R.C.P. 1925(b).
Meanwhile, as the dependency matter proceeded toward the
permanency hearing that resulted in the goal change, D.T.’s guardian ad
litem, Stephen George, Esquire, filed and withdrew multiple petitions
seeking the juvenile court’s guidance concerning D.T.’s end-of-life decisions.
Attorney George filed the most recent iteration of his entreaty on June 10,
2016, with the benefit of the medical testimony presented during the
permanency hearing. During the ensuing hearing on Attorney George’s
petition, it was revealed that D.T. was technologically dependent, i.e.,
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required specialized medical equipment for life support, but he was not in an
emergent state that required “heroic efforts . . . to sustain his life.” N.T.,
6/16/16, at 5. Albert Veverka, Esquire, the attorney representing Children’s
Hospital of Pittsburgh, characterized D.T.’s condition as neither requiring nor
precluding a do not resuscitate (“DNR”) order. He summarized the
perspective of the supervising physician, Robert Clark, M.D., as follows: “If
. . . a mother or father . . . came . . . and said . . . [‘]I want a DNR,[’] [Dr.
Clark] would say . . . [‘]Okay, we can do that.[’]” Id. However, “[i]f the
same situation arose and the parents . . . said . . . [‘]I don’t want a DNR at
this point, [Dr. Clark] would say . . . [‘]Okay, I respect that [too’]. He is of
the opinion that[,] at this point in time[,] we’re not in that emergent
circumstance where a DNR is absolutely necessary or absolutely not
necessary.” Id.
At the close of the hearing, the juvenile court entered an order
confirming that the prior award of legal custody in favor of CYS included the
responsibility over “all medical decisions, . . . including end-of-life decisions,
in the best interest of the dependent child, [D.T.].” Trial Court Order,
6/16/16, (unnumbered at 2). The juvenile court reasserted that Mother was
not only prohibited from contacting D.T. directly, but that she also was
precluded from contacting Children’s Hospital for updates on his condition.
Eventually, the juvenile court relented and permitted Mother one final
visitation with her son prior to his death. Trial Court Order, 7/14/16.
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Mother filed a timely appeal from the June 16, 2016 order, which we
consolidated with her earlier appeal from the order changing the children’s
permanency goals to adoption.
Mother presents five issues for our review:
A. Whether the juvenile court committed an abuse of
discretion and/or error of law when it permitted, over unanimous
objection, the presence of the media at the permanency review
hearing held on June 1, 2016.
B. Whether the juvenile court committed an abuse of
discretion and /or error of law when the agency petitioned for a
change of goal and the juvenile court considered the change of
goal without providing adequate notice to the parties that a
change of goal was to be contemplated at the permanency
review hearing held on June 1, 2016.
C. Whether the juvenile court committed an abuse of
discretion and/or error of law when it determined the current
permanency goal of reunification was no longer feasible and
dispensed with the goal of reunification after only one (1) month
and twenty-seven (27) days when the record failed to support a
conclusion that it was in the best interest of the minor child to
change the goal.
D. Whether the juvenile court committed an abuse of
discretion and/or error of law when it determined that visitation
should cease between the appellant and the minor children
following the change of goal to adoption when the record failed
to support a conclusion that it was in the best interests of the
minor children to no longer have visitation with their mother.
E. Whether the juvenile court committed an abuse of
discretion and/or error of law when it denied the appellant the
opportunity to participate in the medical decision making for the
minor children. In the alternative, whether the juvenile court
was manifestly unreasonable when it denied the appellant the
opportunity to participate in the medical decision making for the
minor children. In the alternative, whether the juvenile court
deprived the appellant of her rights under the United States and
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Pennsylvania constitutions when it denied her the right to
participate in the care and control of her minor children in
violation of due process of law.
Mother’s brief at 3.
At the outset, we address whether the trial court erred in permitting
the media to attend the June 1, 2016 permanency review hearing.5 We
review the juvenile court’s decision for an abuse of discretion. In re M.B.,
819 A.2d 59, 61 (Pa.Super. 2003) (“When an appeal challenges a trial
court's decision to grant or deny access to judicial proceedings, we will
reverse only if we find that the trial court abused its discretion.”).
Pursuant to 42 Pa.C.S. § 6336(d), except for a declaration of contempt
of court or one of the enumerated circumstances that are implicated in
delinquency proceedings, “the general public shall be excluded from hearings
under this chapter.” The provision continues, “Only the parties, their
counsel, witnesses, the victim and counsel for the victim, other persons
accompanying a party or a victim for his or her assistance, and any other
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5
Neither CYS nor D.T.’s guardian ad litem addressed this issue. L.T.’s
guardian ad litem argues unconvincingly that the issue is moot, ostensibly
because the consequences of the court’s determination on the June 1, 2016
hearing cannot be undone. This argument ignores the continuing nature of
dependency proceedings in that permanency review hearings are scheduled
at least once every six months until the dependency case is closed. Thus,
unless we confront the issue at this juncture, the media will have continued
access to L.T.’s dependency proceedings, subject only to the reversal of the
juvenile court’s attitude. Hence, we address the merits of Mother’s
argument.
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person as the court finds have a proper interest in the proceeding or in the
work of the court shall be admitted by the court.” Id. Hence, it is beyond
cavil that the statutory framework promotes confidentiality.
In In re M.B., supra, this Court addressed whether the press could
access a dependency proceeding. Citing the Juvenile Act approvingly, we
found that § 6336(d) “demonstrate[d] our legislature's compelling interest in
safeguarding children involved in juvenile proceedings.” Id. at 62.
However, referring to an official comment to § 6336(d) specifying that
reporters were within the class of people with a “proper interest” in
attending dependency proceedings, we observed that a juvenile court may
elect at its discretion to grant the press access. Id. at 65. We found a
rebuttable constitutional presumption that juvenile court proceedings, like
most other judicial proceedings, are open to the public, and concluded that
juvenile courts “possess an inherent power to control access to their
proceedings and may deny access when appropriate.” Id. at 60, 62–63.
However, we also recognized that the rebuttable presumption of openness is
not absolute, and the juvenile courts may still deny access if they find that
confidentiality serves an important governmental interest and no less
restrictive means exist to serve that interest.
We explained the applicable resolution of the contrasting dynamics
between the presumption of openness and the court's inherent power to
control access as follows:
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In this case, where the constitutional presumption of
openness applies and where the trial court has exercised its
discretion to close the proceedings, we employ a constitutional
analysis [to determine whether the court's decision was an
abuse of discretion]. Once an interested party, such as the
press, seeks access to such proceedings, the party seeking to
keep the proceedings closed may rebut the presumption of
openness by demonstrating that: (1) the denial of public access
serves an important governmental interest, and (2) no less
restrictive means to serve that interest exists. To satisfy these
requirements, the party seeking closure must demonstrate that
the material is the kind of information that the courts will protect
and that there is good cause for the order to issue. A party
establishes good cause by showing that opening the proceedings
will work a clearly defined and serious injury to the party seeking
closure. We have emphasized that only a compelling government
interest justifies closure and then only by a means narrowly
tailored to serve that interest. Ultimately, the decision whether
to grant or deny public access is within the sound discretion of
the trial court.
Id. at 63–64 (internal citations and quotations omitted). In sum, we
concluded that the protection of minors from psychological and emotional
harm and the trauma and embarrassment associated with testifying in public
were compelling interests that militated in favor of privacy concerns. Id. at
64, 65. We also reasoned that, unlike delinquency proceedings, dependent
children have not brought attention upon themselves and therefore “the
public’s interest is less keen than it is in delinquency proceedings.” Id. at 65
n.5. In addition, this Court observed the informal and non-adversarial
nature of dependency hearings and highlighted the chilling effect that
publicity associated with open proceedings would have upon the testimony
of caseworkers and service providers. Id. at 64.
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In addressing this issue in its Pa.R.A.P. 1925(a) opinion, the juvenile
court concluded that Mother “failed to show a compelling reason why the
hearing ought to be closed.” Trial Court Opinion, 8/10/16, at 16. The court
initially reasoned that Mother did not have standing to challenge the media’s
presence on behalf of the children, presumably because they had been
adjudicated dependent, and that she failed to demonstrate an injury to
herself. Thereafter, the court provided an alternative basis to reject
Mother’s argument on its merits, which was the children’s ages.
The juvenile court’s rationale demonstrates its misapprehension of the
relevant concerns regarding the children’s interests that we stressed in In
re M.B., supra. First, despite the juvenile court’s suggestion to the
contrary, Mother was not required to assert that she would suffer harm as a
result of opening the proceedings. As we explained supra, the focus of the
constitutional analysis is the effect of the media’s intrusion upon the
children. Therefore, any reference to Mother’s privacy rights is misplaced.
Second, regardless of the dependency adjudication, Mother’s parental rights
remained intact. Thus, she retained a fundamental interest in the care,
custody, and control of L.T. and D.T., including the preservation of privacy
concerns and the prevention of psychological and emotional harm flowing
from the invasion of their privacy rights. Hence, we reject the juvenile
court’s conclusion that Mother lacked standing to object to the media’s
presence at the dependency hearing.
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Moreover, we also find unpersuasive the trial court’s alternative
argument addressing the merits of Mother’s complaint. Essentially, the trial
court determined, “given the media attention this case received because of
the criminal charges filed against the father, and the young age of the
children, allowing the press to be present at the review hearing posed little
or no danger their privacy interests would be invaded more than had already
taken place.” Trial Court Opinion, 8/10/16, at 16. Noting the children’s
respective ages and the fact that D.T. is now deceased, the juvenile court
reasoned that the children would not suffer psychological and emotional
harm as a result of the media’s intrusion. For the following reasons, we
disagree with the juvenile court’s conclusion that the intrusion would not
cause psychological or emotional harm.
Preliminarily, we note that this case is procedurally defective.
Typically, in situations involving hearings that are closed to the public by
statute, the party seeking access to the closed proceedings files a petition to
open the hearing, and upon notice of the petition, the party seeking to keep
the record closed is tasked with rebutting the presumption of openness
under the two-pronged test we discussed supra. See e.g., In re M.B.,
supra; In re J.B., 39 A.3d 421 (Pa.Super 2012). This procedure did not
occur in the case at bar.
Presently, the still unidentified media outlet neglected to file a petition
announcing its request to open the closed proceeding. It just appeared at
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the scheduled permanency review hearing. Then, without prior notice to the
parties, the juvenile court acknowledged the media’s presence and asked the
parties if they wanted to address that issue. Thereafter, the parties
uniformly objected to the media’s participation, and the court questioned,
“How do we know really know that the media is going to invade the privacy
of the children. . . [?]” N.T., 6/1/16, at 5. Then, after rebuffing an attempt
by the guardian ad litem for L.T. to explain the legislatures’ interest in
enacting the confidentiality component of § 6336(d), the juvenile court
invoked its interpretation of In re M.B., and purported to balance the
children’s privacy rights against the public interest in disclosure and
determined, “given the attention the media has already given to this case,
[the collective objections do not demonstrate] how the public interest is
overridden here.” N.T., 6/1/16, at 6. Having found that the public interest
prevailed over the children’s privacy rights, the juvenile court did not
confront whether a less restrictive means existed to protect the children's
privacy rights other than the total closure of the dependency proceedings.
The procedural defects in this case are manifest. By failing to require
the media to provide a written petition to open the dependency hearing, or
even issue notice of its request, the juvenile court denied the parties to the
dependency proceeding an opportunity to prepare a measured response that
addressed the relevant aspects of the constitutional analysis. The juvenile
court’s abridged, impromptu discussion regarding the merits of opening the
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dependency hearing to the media was insufficient in light of the nuanced
evaluation of the countervailing interests that we outlined in In re M.B., and
ultimately proved to be a disservice to the children’s privacy interest.
Moreover, we reject the juvenile court’s argument that publicizing the
dependency proceedings was harmless due to potential dissemination of
information during Father’s corresponding criminal matter. At its core, the
trial court’s reasoning is premised upon the notion that the related criminal
case had revealed all of the facts previously hidden. The logical foundation
of that rationale is faulty. First, the premise ignores the reality that the
majority of the information discussed during closed permanency review
hearings is wholly irrelevant to the Commonwealth’s case against Father or
his defense, and therefore, it would not be disclosed in the criminal
proceedings. For instance, pursuant to § 6351(e), permanency review
hearings address, inter alia, the feasibility and compliance with the
permanency plan, the date by which permanency goals might be achieved
and whether placement continues to be best suited to the child’s safety,
protection and physical, mental and moral welfare. In addition, the juvenile
court must also determine the appropriateness and continuing necessity for
placement, the appropriateness of the current placement goal, and the date
by which the placement goal might be achieved. In scenarios where the
children do not testify, this information is gleaned from the testimony
provided by parents, foster parents, caseworkers and service providers.
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Father’s criminal case, which the juvenile court cited as the main
reason for permitting the media’s participation in the dependency
proceedings, would not reveal these confidential aspects of L.T.’s and D.T.’s
lives because they are irrelevant to the criminal matter. As Mother
accurately notes, this Court rejected the juvenile court’s precise rationale
regarding the superseding effect of concomitant open criminal proceedings
on a dependent child’s privacy rights, and it characterized the assertion as
“spurious.” In re M.B., supra at 64. We explained, “While it is true that the
children's names and certain details about their family life have been
publicized, we believe . . . that the fact that they have received some
publicity enhances their need for privacy now.” Id. In addition we endorsed
the trial court’s observation, “the more information that is revealed, the
more stress the children experience, the more they are stigmatized,
embarrassed, and subject to whispers and speculation.” Id. at 65 (citation
omitted).
Stated plainly, the existence of a related criminal matter is not the
dispositive consideration. As noted, few of the highly personal facts that are
essential to the permanency review determination in this case would be
subject to disclosure during Father’s criminal proceedings. Furthermore, the
harm stemming from the continued dissemination of this delicate
information in open dependency proceedings overrides the public’s interest
in disclosure. We stressed this latter concept in outlining the parameters of
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the two-prong constitutional analysis in In re M.B., supra at 64 quoting In
re T.R., 556 N.E.2d 439,451 (Oh. 1990), “Intense publicity surrounding the
events which have brought a child into the juvenile court may
psychologically harm the child, making it more difficult, if not impossible, for
the child to recover from those events.” In addition to highlighting the
chilling effect that open dependency hearings would have upon a witness’s
willingness to speak candidly about the child’s best interest, this Court noted
that publicity “is inconsistent with the nonadversarial nature of juvenile
proceedings.” Id. at 64 (quoting San Bernardino County Dep't. of Pub.
Social Servs. v. Superior Ct., 283 Cal. Rptr. 332 (Cal.App. 1991) (“Private
hearings were not intended to simply avoid publicity and its resulting stigma,
but were also part and parcel of the informal and nonadversarial nature of
juvenile court hearings.”)); see also T.R., 556 N.E.2d at 448–49 (juvenile
courts differ from courts of general jurisdiction in that “[h]earings are
informal, and based on an inquisitorial model rather than an adversarial
one”).
For all of the foregoing reasons, we find that the juvenile court abused
its discretion in permitting the unidentified media member’s access to the
closed dependency proceedings without first requiring a formal petition,
notice, and the opportunity for the parties to prepare an informed response
to satisfy their burden of persuasion regarding both prongs of the
constitutional analysis. Moreover, the juvenile court exaggerated the
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significance of Father’s criminal trial in reasoning that the public had already
garnered much of the confidential information that would be disclosed in the
ongoing dependency proceedings. Thus, we direct the juvenile court to close
the dependency proceedings consistent with § 6336(d). If, upon subsequent
petition, notice, and measured argument beyond the existence of a related
criminal matter, the juvenile court finds that the presumption of openness is
unrebutted, the court may enter an appropriate order at that juncture.
Next, we address Mother’s contention that the trial court erred in
changing the children’s permanent placement goals from reunification to
adoption. The appropriate standard of review of a juvenile court's
permanency determination is as follows:
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 legal 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., 9 A.3d 1179, 1190 (Pa. 2010).
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
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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., 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., 909 A.2d 818 ,824 (Pa.Super.
2006) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 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 child,
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6
During permanency review hearings, trial courts must address the
following considerations relevant to the child’s well-being.
(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.
(Footnote Continued Next Page)
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(Footnote Continued)
(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.
(6) Whether the child is safe.
....
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has 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, whether the county agency has filed or sought to
join a petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to adopt the
child[.]
....
(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
(Footnote Continued Next Page)
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the juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the
extent of compliance with the family service plan; (3) the extent
of progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child's safety; and (7) whether the child has been in
placement for at least fifteen of the last twenty-two months.
In re A.B., 19 A.3d 1084, 1088-89 (Pa.Super. 2011). Additionally, courts
must consider whether reasonable efforts were made to finalize the
permanency plan in effect. See 42 Pa.C.S. § 6351(f)(5.1).
Mother’s first challenge to the goal change order asserts trial court
error in failing to provide formal notice that the court was considering
_______________________
(Footnote Continued)
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.
....
(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)-(6) and (9), (f.1) (1) and (2), (g) (emphases
added).
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changing the permanency goals to adoption. Relying upon select segments
of the Pennsylvania Dependency Benchbook (“Dependency Benchbook”)7,
she argues that the juvenile court should have first waited for CYS to file a
petition for goal change and then provide notice to the parties that the
petition would be addressed at the ensuing permanency review hearing.
Mother relies primarily upon the following passage:
“Best Practice – Goal Change Initiation”
While not required by Pennsylvania statute or rule of court,
the request to change a goal can come in many forms. The
official change in goal by the court is most commonly initiated by
the agency. This is typically done by the agency petitioning the
court for a permanency hearing with notice they are requesting a
goal change.
Additionally, nothing precludes the court from initiating a
change of goal. In some counties the judge informs all the
parties at the Permanency Hearing that a hearing to change the
goal will occur at the next scheduled Permanency Hearing. It is
particularly beneficial to provide all parties with the date of the
upcoming goal change hearing to prevent any issues of parties
not receiving appropriate notice.
See Pennsylvania Dependency Benchbook 2nd at § 13-3, Office of Children
and Families in the Courts (2014).
____________________________________________
7
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 “a
substitute for statutory, procedural or other legal authority.” See
Pennsylvania Dependency Benchbook, Office of Children and Families in the
Courts, 2010.
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Mother asserts that, since neither of the foregoing scenarios outlined
in the “Best Practices” notation occurred herein, the juvenile court failed to
provide adequate notice that a goal change was contemplated and that it
was error to change the children’s goals with deficient notice. We disagree.
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
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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 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). Hence, despite 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.
The certified record confirms that the juvenile court issued Mother formal
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notice of the June 1, 2016 permanency review hearing. Accordingly, her
challenge fails.
Having found no error regarding notice, we address the merits of
Mother’s assertion that the trial court erred in changing L.T.’s permanency
goal from reunification to adoption after only approximately two months of
services. She contends that the decision to change L.T.’s permanency goals
ran contrary to the Juvenile Act’s foremost purpose “to preserve the unity of
the family whenever possible [.]” 42 Pa.C.S.§ 6301(b)(1). Similarly, citing
the statutory requirement pursuant to §6351(f)(9), that an agency typically
must request a goal change when a child has been in care for fifteen to
twenty-two months, Mother contends that the act “contemplate[s] remedies
. . . that extend fifteen (15) to twenty-two (22) months.” Mother’s brief at
38. Thus, she argues the juvenile court’s decision to change her daughter’s
permanency goal was procedurally premature.
Similarly, invoking the Dependency Benchbook’s discussion concerning
early stages of dependency, Mother asserts that the juvenile court should
have utilized the June 2016 permanency review hearing to consider her
initial progress and to make minor adjustments to the permanency plan. In
addition, highlighting the May 19, 2016 court summary that Ms. Bush
prepared and CYS submitted in anticipation of the permanency hearing,
Mother observed that she was compliant with the plan and had initiated the
recommended services. Furthermore, the agency recommended the
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continuation of her reunification efforts. Hence, she concludes the juvenile
court’s decision to change L.T.’s permanency goal to adoption after only two
months was hasty. For the reasons that follow, we reverse the juvenile
court order changing the goal from reunification to adoption.
In addressing these issues, the juvenile court first correctly highlighted
that Mother’s reliance upon the fifteen-to-twenty-two-month period is
misplaced in that the Juvenile Act does not prohibit it from altering a child’s
permanency goal at any time that the court determines that reunification is
no longer viable and that another more appropriate goal exists. Next, the
court attempted to bolster its position by citing to In re D.P., supra and In
re M.S., 980 A.2d 612 (Pa.Super. 2009), two cases where this Court
affirmed juvenile court goal change orders at the dispositional phase.
First, we agree with the trial court’s characterization of the Juvenile
Act’s timing requirements. It is beyond cavil that the fifteen-to-twenty-
month period outlined in § 6351 is not a prerequisite to a goal change, but
rather, an aspirational target in which to attain permanency. See 42 Pa.C.S.
§ 6351(f.1)(9) (“If the child has been in placement for at least 15 of the last
22 months . . . [the court must determine] whether the county agency has
filed or sought to join a petition to terminate parental rights[.]”). Thus,
Mother’s citation to that provision for the proposition that she was entitled to
the full extent of the fifteen-to-twenty-two month term is unpersuasive.
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Nevertheless, the juvenile court’s reliance upon In re D.P. and In re
M.S. is plainly misplaced. In re D.P. involved an extensive procedural
history spanning ten years between the agency’s initial involvement with the
family and the goal change order. Also, unlike the case at bar, the facts
underlying our review of In re D.P. included a prior adjudication of
dependency and reunification as well as an express finding of aggravated
circumstances against one of the parents. In addition, the agency was
actively involved with the family for approximately three years between the
pertinent adjudication of dependency during September 2005 and the July
2008 dispositional order granting the goal change.
Our holding in In re M.S., supra, may appear to support the juvenile
court’s positon insofar as we affirmed a juvenile court’s order establishing
adoption as the initial permanency goal. However, upon closer inspection,
the perceived support is ephemeral. Like the facts underlying our review of
In re D.P., supra, the pertinent aspects of In re M.S., supra, included “a
longstanding relationship. . . going back approximately 12 years” as well as
the trial court’s implicit finding that Mother’s failure to protect the child from
repeated sexual assaults “by at least one but in all likelihood more than one
of her brothers” constituted aggravated circumstances that warranted
setting adoption as the initial permanency goal for the 12-year-old child. Id.
at 613, 614-615.
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More importantly, unlike the case at bar, our review of the certified
record in In re M.S. supported the juvenile court’s finding. We explained
that the mother’s “apathy and indolence in taking corrective measures
[were] the root problems of [that] case, [and that her inaction] smack[ed]
squarely in the face of achieving M.S.'s best interests.” Id. at 618. Indeed,
our citation to the In re D.P. Court’s reasoning in In re M.S. provides a
conspicuous illustration of why the juvenile court’s reliance upon those cases
is misplaced herein. In affirming the court’s purportedly abrupt invocation of
adoption in In re M.S., this Court recounted approvingly, “It is not
reasonable to suggest that after many fruitless years of providing services to
Mother that the Agency should be expected to continue providing the same
services over and over again.” Id. quoting In re D.P., supra at 1231.
Instantly, however, as we explain, infra, the facts do not demonstrate the
futility of CYS’s reunification efforts, and more importantly, it does not reveal
a prolonged exhaustion of reunification resources. To the contrary, CYS
provided Mother services for no more than three months. Thus, neither of
these cases supports the legal principle for which they were cited, i.e., that
this Court routinely affirms goal change order following truncated
reunification efforts.
As indicated in the preceding discussion, our review of the record
sustains neither the juvenile court’s finding that “[r]eunification is not a
viable option in this case” nor its determination that “the safety and
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wellbeing of L.T. is seriously threatened by Appellant's inability to take
responsibility for herself, her failure to address problems with domestic
violence, her homelessness and deplorable home conditions when she did
have housing.” Trial Court Opinion, 8/10/16, at 21.
In rendering its decision, the trial court focused primarily on the
brutality of D.T.’s severe physical injuries, Mother’s belief that Father was
not capable of inflicting the savage beating upon their infant son, and the
immaturity and perceived lack of urgency that twenty-one-year-old Mother
revealed during the hearing. The trial court discounted Mother’s compliance
with the agency’s plan and the progress that she achieved during the short-
lived period that she received reunification services. More importantly, the
juvenile court disregarded the undisputed evidence that L.T. thrived during
the brief period that she was placed in Grandmother’s kinship care, that
Mother and L.T. shared a close bond, and that it was in the child’s best
interest to continue reunification efforts.
The record bears out Mother’s compliance in light of the circumstances
that she faced in this case. Recall that Mother was required to: 1)
participate in a psychological evaluation to determine any mental health
deficiencies and follow treatment recommendations; 2) complete an
approved parenting program; 3) attend medical appointments; 4) attend
visitations regularly and demonstrate appropriate parenting; 5) complete a
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domestic violence program; 6) maintain safe and stable housing; and 7)
execute necessary releases.
Unfortunately for Mother, she struggled to maintain safe and stable
housing. The record confirms that Mother has lived in squalor for the
duration of the agency’s involvement with the family and that she
anticipated being evicted from her subsidized residence on the date of
thepermanency review hearing. On the verge of homelessness, Mother still
rebuffed Ms. Ferraro’s attempts to register her into a temporary shelter,
apparently because she did not want to be confined to the city of Erie
without access to transportation. Mother informed both caseworkers that
she intended to reside with a neighbor temporarily until she and her new
boyfriend could obtain a residence together. Along with the severity of
D.T.’s injuries and its interpretation of Mother’s poor attitude, Mother’s
housing predicament was among the juvenile court’s primary motivations for
the goal change.
While the certified record plainly supports the juvenile court’s finding
that Mother failed to satisfy the housing requirement, the court’s rationale
discounted Mother’s physical limitations due to injuries stemming from a
recent automobile collision. Ms. Bush testified during the hearing that
Mother suffered extensive injuries, some of which required surgery, to her
collar bone, ribs, and shoulder from the car accident. Id. at 44. The
injuries limited the use of one arm and affected her ability to clean her home
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without assistance. Id. In fact, Ms. Bush testified that Mother had
complained that she could barely care for herself with the use of only one
arm. Id. Rather than appreciate the reality of Mother’s physical
impairment, the juvenile court twice chastised Mother for blaming
Grandmother’s inability to help her with housekeeping for the condition of
the home. Trial Court Opinion, 8/10/16, at 8. Likewise, while Mother’s
makeshift housing arrangement was inadequate and her plan for stable
housing was still uncertain, those deficiencies did not demonstrate Mother’s
long-term inability to reunite with L.T. Thus, although the record supports
this aspect of the juvenile court’s finding, under the circumstances of this
case, we do not believe that Mother’s housing predicament is a basis to
change the dependency goal from reunification to adoption.
With regard to the remaining objectives, Mother made moderate
progress during the two months that she received services. She executed
the necessary releases and regularly attended supervised visitations with
L.T. N.T., 6/1/16, at 40. Mother demonstrated appropriate parenting
behavior, and even though L.T. recognized Grandmother as the primary
caretaker, Mother’s bond with her daughter was evident. Id. at 41, 53-54,
65. Hence, those aspects of the plan were satisfied.
In addition to satisfying the visitation and clerical components of the
goals that we documented above, Mother completed the initial portion of her
psychological evaluation on May 10, 2016. However, as Ms. Bush explained
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during the evidentiary hearing, Mother could not attend the scheduled
follow-up session scheduled for May 19, 2016, because she had been
subpoenaed as a witness at Father’s preliminary hearing on that date. N.T.,
6/1/16, at 34, 45. The appointment was rescheduled for June 6, 2016,
approximately one week after the permanency review hearing. Id. at 34.
Thus, she was compliant with this aspect of services.
Likewise, Mother was compliant with the domestic violence
component. Ms. Bush indicated that Mother enrolled in a twenty-four week
domestic violence program and attended the first three classes. Id. at 35;
CYS Case Summary, 5/19/16, at 8. Further, Ms. Bush testified that Mother
advised her that she recognized that her relationship with Father was toxic
and that she terminated it. N.T., 6/1/16, at 32.
Mother also satisfied her obligation to enroll in a parenting education
program. She began Project First Step on May 5, 2016. While Mother’s
personality initially clashed with the assigned caseworker, Ms. Ferraro, who
found mother defensive, agitated and resistant to independence, she had
completed approximately one month in the program prior to the hearing.
Significantly, although Ms. Ferraro stressed Mother’s deficiencies, she did not
recommend terminating services and stated that she was committed to work
with Mother as long as she stayed committed to the program. Id. at 72.
In sum, notwithstanding Mother’s well-documented parenting
deficiencies, she complied with services during the brief reunification period
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and her bond with L.T. was further evidence that continued reunification
efforts were in the child’s best interest. As the guardian ad litem for L.T.
opined in her brief in support of Mother’s position,
As Guardian Ad Litem for the minor child, I am not clearly
convinced that reunification is not a viable option in this case.
Mother had made some progress in the two months between the
Dispositional Hearing and the Permanency Hearing, and it is
worth noting that during those two months, she herself was
injured and she was struggling to cope with a traumatically
injured child.
Given the circumstances, I cannot, as Guardian Ad Litem
state that changing the goal to adoption is in the child's best
interests. That is a determination that will come with time;
adequate time to determine whether Mother is genuinely
motivated and capable. Two months is simply not enough time
to make that determination.
L.T.’s Brief at 13-14.
We agree with the foregoing insofar as the juvenile court’s decision to
change L.T.’s permanency goal from reunification to adoption after only two
months under the facts of this case is tantamount to abuse of discretion.
While the juvenile court branded Mother as an immature 21-year old who
has yet to exhibit self-reliance or independence, the certified record is more
revealing. Mother is no longer romantically involved with Father, and
through her domestic violence program, she recognized that the children did
not deserve to be victimized by Father’s aggression. Likewise, the certified
record confirms that Mother maintained a loving relationship with both
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children and exhibited appropriate parenting skills during the supervised
visitations with D.T. and L.T.
Despite lacking a driver’s license she secured transportation from Erie
County to Pittsburgh to sit with D.T. regularly while he was in Children’s
Hospital. Even after Father demolished the family vehicle, Mother persisted,
cobbled together resources, and with the assistance of CYS, family, and
friends, she continued to make the two-hour trek to Pittsburgh to visit her
son. Similarly, as it relates to L.T., the record not only demonstrates that
Mother maintained regular visitation, the case workers identified a close
bond between Mother and L.T., who has never showed any sign of abuse.
Plainly, this is not a case where it is obvious that an uninterested parent is
wasting reunification resources while a child languishes in foster care.
Mother made some progress during the brief period of reunification, and it is
in L.T.’s best interest to grant Mother a legitimate opportunity to
demonstrate that reunification is viable. Accordingly, we reverse the order
altering L.T.’s permanency goal from reunification to adoption.8
Next, Mother assails the juvenile court’s decision to terminate her
supervised visitations with L.T. She argues that the record does not sustain
____________________________________________
8
At a minimum, the juvenile court should consider concurrent permanency
goals that would permit CYS to develop simultaneous reunification and
adoption plans.
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the trial court’s finding that the abrupt cessation of visitation was in her
daughter’s best interest. Mother asserts that the trial court’s rationale in
support of its decision ignored the relevant best-interest factors that it was
required to consider pursuant to our discussion in In the Interest of M.B.,
674 A.2d 702 (Pa.Super. 1996).9
Our standard of reviewing a juvenile court’s visitation order depends
on the child’s goal. When reunification is contemplated, a juvenile court
cannot deny or reduce visitation absent a “grave threat” to the dependent
child. Id. at 705 (“As a usual rule, parental visitation is not denied except
where a grave threat to the child can be shown”). This standard
“underscores the importance of each parent's maintaining a meaningful and
sustaining relationship with the child.” Id. In contrast, when the goal is an
alternative to reunification, the juvenile court may limit or deny visitation as
long as the reduction satisfies the best interest of the child. This alternative
standard recognizes that when reunification is unlikely, the parent-child
relationship is no longer paramount. Id. We have indicated that “The ‘best
interests’ standard, in this context, is less protective of parents' visitation
____________________________________________
9
This Court fashioned the best-interest factors to guide the trial courts in
the absence of statutory guidelines concerning parental visitation of
dependent children when the the goal is no longer reunification. See In the
Interest of M.B., supra at 705-706, n.3 (“The Juvenile Act does not
contain any guidelines or suggestions for granting or reducing visitation once
the child has been adjudicated dependent and removed from his/her natural
parents.”).
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rights than the ‘grave threat’ standard.” In re L.V., 127 A.3d 831
(Pa.Super. 2015) (quoting In re C.J., 729 A.2d 89, 95 (Pa.Super. 1999)).
We explained this dichotomy as follows:
When the child is in foster care, the grave threat standard
supports the goal of family reunification as provided in the
Juvenile Act. Allowing visitation except in extreme
circumstances encourages continued parental interest and
contact in order to prepare the child and family for eventual
reunification.
However, when the court finds that reunification is no
longer the goal, the grave threat standard is not a proper guide,
and must be replaced by a standard that recognizes that the
natural family is not likely to be a viable entity.
Id. at 705-706 (citation omitted).
In light of our finding that the juvenile court erred in altering the
permanency goal from reunification to adoption, we do not confront the
merits of Mother’s assertion that the court was required to address the best-
interest factors outlined in In the Interest of M.B. Instead, we remand the
matter for the juvenile court to address the issue of visitation pursuant to
the grave threat standard, i.e. whether Mother “demonstrates a severe
mental or moral deficiency that constitutes a grave threat to the child.” In
re C.B., 861 A.2d 287, 294 (Pa.Super. 2004).
Mother’s final issue challenges the juvenile court’s June 16, 2016 order
confirming CYS’s authority, as the legal and physical custodian pursuant to §
6357, to make end-of-life decisions in D.T.’s best interest. The appeal from
this order was docketed at 1035 WDA 2016. Mother’s argument is a
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confused presentation of distinct constitutional principles. Initially, Mother
asserts that the juvenile court’s order infringed upon her parental rights.
Mother’s brief at 47. While she frames the initial inquiry as requiring strict
scrutiny, she failed to provide any legal argument in support of her positon
that the denial of her right to participate in the decision making process
under the relevant circumstances would not pass constitutional muster. Id.
Instead, she levels an alternate complaint that the juvenile court violated
her due process rights because it failed to conduct an evidentiary hearing
prior to confirming the agency’s statute-based authority over D.T.’s end-of-
life medical decisions. Id. at 48.
The guardian ad litem for D.T. attempts to counter Mother’s elusive
constitutional challenges; however, CYS and the trial court both contend that
the issue regarding the agency’s authority to make end-of-life medical
decisions for D.T. is moot because the infant is deceased. The guardian ad
litem for L.T. declined to address the issue, presumably because she
understood that the order did not apply to L.T.
Upon review, we find the appeal docketed at 1035 WDA 2016 is moot.
In In re J.A., 107 A.3d 799 (Pa.Super. 2015) we recently reiterated the
relevant legal framework as follows:
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as
moot. An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or
due to an intervening change in the applicable law. In that case,
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an opinion of this Court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
Id. at 811 quoting In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en
banc).
Presently, the appeal is moot because the only child that was subject
to the order is now deceased. Thus, any decision rendered in this appeal
would be entirely advisory. Mother and the guardian ad litem for D.T.
recognize that the appeal is technically moot, but relying upon our
discussion in In re J.A., supra, they both assert that the appeal is excepted
from the mootness doctrine because it raises an issue that is prone to
repetition yet likely to evade review. We disagree.
In In re J.A., we confronted a pair of technically moot appeals and
found that they were excepted from the mootness doctrine. The first appeal
was from a juvenile court order that appointed KidsVoice as the medical
guardian of a dependent child. However, after the child’s mother filed her
notice of appeal, the juvenile court entered a subsequent order terminating
the appointment. Hence, as we pointed out in In re J.A., supra at 811,
“[t]he juvenile court's [latter] order . . . effectively granted the relief
requested [in Mother’s appeal.]” Thus, it was moot.
Nevertheless, reasoning that the juvenile court could reverse its
course and re-appoint KidsVoice as the child's medical guardian, we found
the issue capable of repetition. Id. at 812. Similarly, noting the fluidity of
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the child’s best interest throughout the juvenile court proceedings, we
determined that the issue of whether the appointment of a medical guardian
was in the best interest of the child at any given time was apt to evade
review. Id.
We employed a similar analysis to the second appeal, which pertained
to an order entered before the court reversed itself. During an evidentiary
hearing, the juvenile court precluded mother from presenting testimony in
support of her desire to regaining medical decision-making rights from
KidsVoice. Invoking Pa.R.A.P. 1701, the juvenile court rebuffed the evidence
concerning the propriety of the appointment of KidsVoice because the issue
was pending on appeal. As noted, the court subsequently withdrew the
appointment. In order to evade the mootness doctrine and address the
issue regarding the juvenile court's decision to reverse itself on the
applicability of Rule 1701, the Court in In re J.A. reasoned that the juvenile
court’s reversals were prone to repetition and that the fact-based
determination of the child’s ongoing medical needs was likely to evade
review. Id. at 812.
As noted, both Mother and the guardian ad litem for D.T. seek to apply
this rationale in order to circumvent the mootness doctrine. The crux of our
reasoning in In re J.A., was that best-interest determinations are
dependent upon up-to-date facts that are fluid over the course of the
dependency proceedings and are therefore necessarily apt to evade review.
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See id at 812 (“the question of what is in a child's best interest is a fluid
concept, potentially changing throughout the life of a dependency case”).
This reasoning is misplaced herein.
Unlike the fact-based determinations regarding a child’s best interest
that we found to be apt to evade review in In re J.A., the issue in the case
at bar involves the functional determination of the juvenile court’s statutory
authority to empower CYS to make end-of-life decisions under 23 Pa.C.S. §
6357. There are no nuanced factual considerations in the case. The issue
regarding whether § 6327 authorizes the juvenile court to act in this matter
raises a question of law, not L.T.’s best interest. Accordingly, the issue is
not inclined to evade review due to any perceived fluidity.
Additionally, we observe that the issue also is not likely to evade
review under a typical mootness analysis. Instantly, Mother neglected to file
in the juvenile court either a petition to stay the court’s June 16, 2016 order
pending her appeal or an injunction prohibiting CYS from making a final end-
of-life determination for the child. Pointedly, subject to limited
circumstances that are not applicable herein, “[a]n order that grants or
denies, . . . an injunction” may be appealed as of right. See Pa.R.A.P.
311(a)(4).
Similarly, even after filing her notice of appeal, Mother could have, but
did not, petition this Court for a writ of supersedeas. Mother even declined
to seek any form of stay upon receiving notice of CYS’s ultimate decision to
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remove D.T. from the ventilator. If granted, these entreaties would have
enabled appellate review of the issue while an actual case or controversy still
existed. Thus, contrary to the arguments leveled by Mother and the
guardian ad litem for D.T., this issue is not prone to repetition yet likely to
evade review. Indeed, Mother’s inaction, rather than some latent difficulty
with the appellate process, is the principal reason that the July 16, 2016
order is now moot.
For all of the foregoing reasons, we reverse the juvenile court order
appealed at 1032 WDA 2016 that changes L.T.’s placement goals from
reunification to adoption and close the dependency proceedings consistent
with § 6336(d) and our discussion in In re M.B., supra. We dismiss the
appeal docketed at 1035 WDA 2016 as moot. Case remanded for
proceedings consistent with the opinion. Jurisdiction relinquished.
Judge Olson joins the opinion.
Judge Strassburger files a concurring and dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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