In the Interest of: K.G., a Minor ( 2018 )

J-A15046-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: P.H., MATERNAL :
GRANDMOTHER :
:
:
:
: No. 93 MDA 2018
Appeal from the Order Entered December 11, 2017
In the Court of Common Pleas of Huntingdon County Juvenile Division at
No(s): CP-31-DP-0000057-2015
IN THE INTEREST OF: A.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: P.H. :
:
:
:
: No. 95 MDA 2018
Appeal from the Order Entered December 11, 2017
In the Court of Common Pleas of Huntingdon County Juvenile Division at
No(s): CP-31-DP-0000058-2015
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 30, 2018
In these consolidated appeals, P.H. (Maternal Grandmother) appeals
from the orders changing the permanent placement goals for her minor
granddaughters, A.G., born in November 2013, and Ka.G., born in May 2015
(collectively, Children), from reunification to adoption. After careful review,
we affirm.
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The relevant facts and procedural history of this case are as follows.
Maternal Grandmother is the biological grandmother of four granddaughters:
S.H., Ki.G., and Children. S.H. currently resides with Maternal Grandmother
and is not part of this appeal.1 The family originally became known to the
Huntington County Children and Youth Services Agency (the Agency) in
August 2010, after reports were received alleging that Ki.G. lacked proper
parental care and control. Dependency Petition (Ki.G.), 8/3/10, at 3
(unpaginated). The report further alleged that Children’s mother, S.G.
(Mother), had a criminal record that included drug charges and was refusing
to cooperate with the Agency. Id. On August 13, 2010, the juvenile court
adjudicated Ki.G. dependent, however, physical custody of Ki.G. remained
with Mother.
In November 2010, Mother placed Ki.G. in the care of Maternal
Grandmother and moved to Pittsburgh with her three other children. On July
6, 2011, the Agency filed a petition to transfer physical and legal custody of
Ki.G. to Maternal Grandmother and appoint her as Ki.G.’s legal custodian. The
juvenile court granted the petition on August 22, 2011. Thereafter, having
determined that Ki.G. had been placed with a fit and willing relative, the
Agency filed, and the juvenile court granted, a petition to terminate court
supervision. Order, 8/22/11.
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1Maternal Grandmother appealed the goal change order for Ki.G., which we
address by separate memorandum at Docket No. 94 MDA 2018.
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[Ki.G.] was already in the custody of [Maternal Grandmother]
when Allegheny County placed S.H., A.G., and [Ka.G.] in kinship
care with [Maternal Grandmother] on July 1, 2015. This
placement occurred after the natural mother of the children was
hospitalized following an automobile accident, which ultimately
claimed her life approximately three weeks later. Allegheny
County adjudicated [Ka.G.], A.G. and S.H. dependent on
September 2, 2015. The Juvenile Division of the Allegheny County
Court of Common Pleas subsequently transferred the cases to the
Juvenile Division of the Huntingdon County Court of Common
Pleas. When it became evident that [Maternal Grandmother] was
overwhelmed with attempting to care [for] all four of the children,
[the Agency] placed [Ki.G., A.G. and Ka.G.] in alternative foster
care settings. The fourth child, whose case is not subject to this
appeal, remains in kinship care with [Maternal Grandmother]. The
parental rights of all of the Natural Fathers except S.H.’s (who is
not subject to this appeal) have been terminated.
[Maternal Grandmother] is very well-intentioned, and has always
attempted to meet the needs of her granddaughters. From the
inception of these dependency matters, however, we were
concerned that [Maternal Grandmother] was unable to adequately
care for all of the children simultaneously. When [Maternal
Grandmother] assumed the care of all four of her grandchildren in
July of 2015, she was working at Weis Markets in State College,
Centre County and was driving 45 minutes each way to go to
work, and also leaving the children in the care of her 89-year-old
mother. Services were put in place by [the Agency], but even
with those services [Maternal Grandmother] was “overwhelmed”
and didn’t have time to address all of her household needs. The
children were removed from her custody due to home condition
issues and the inability to appropriately care for all of the children
at one time.
Juvenile Court Opinion, 2/13/18, at 1-2 (footnotes omitted).
On November 8, 2017, the court terminated the parental rights of
Children’s fathers. Trial Court Opinion, 2/13/18, at Ex. A. That same day,
the Agency petitioned for the juvenile court to conduct a permanency review
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hearing for Children for the purpose of changing their permanency goal from
reunification to adoption.
The court held a permanency review hearing on December 1, 2017,
during which the Agency presented the testimony of Emily Dixon, the
caseworker assigned to the family. Maternal Grandmother testified on her
own behalf and presented the testimony of J.L., Ki.G.’s foster mother, as an
adversarial witness. At the conclusion of the hearing, Maternal Grandmother
expressed her disagreement with the Agency’s position of changing Children’s
permanency goals to adoption. N.T., 12/1/17, at 26. Rather, Maternal
Grandmother argued that Children should be returned to her care. Id.
Relevant to this appeal, during Maternal Grandmother’s closing
arguments, the following exchange took place:
[ATTORNEY FOR MATERNAL GRANDMOTHER]: . . . My client has
been working towards reunifying [Ki.G.] as her legal guardian all
along. Seeking to change the goal to adoption at this point is
something that we object to. She has legal standing with regard
to [Ki.G.] as her legal guardian to reunify with her, and she has
done what has been asked of her to do that. . . .
[THE COURT]: Thank you, [attorney for Maternal Grandmother].
I’m going to take the matters under advisement.
[GUARDIAN AD LITEM]: Can I speak briefly?
[THE COURT]: You may.
[GUARDIAN AD LITEM]: I think counsel will agree that [Maternal
Grandmother] does not have legal standing to challenge the goal
change as to [A.G.] and [Ka.G.]. If she does have some basis, I
would like to hear it now because I don’t know.
[THE COURT]: I don’t think she does.
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[ATTORNEY FOR MATERNAL GRANDMOTHER]: I would like to
speak to that.
...
[THE COURT]: The issue I was going to raise is the standing issue.
She has status as guardian in one case and not in the other three.
[ATTORNEY FOR MATERNAL GRANDMOTHER]: I believe that the
Agency has waived any standing issue with regard to [A.G.] and
[Ka.G.]. They have asked [Maternal Grandmother] to do certain
things to reunify. In every permanency plan that they have
submitted to this Court they have indicated that [Maternal
Grandmother] was to do certain things prior to getting the children
back in her home.
[THE COURT]: They would be negligent if they didn’t, and they
probably would be violating the law. We want children to be in
kinship care, and the Agency asks grandparents all the time to do
things. And I think they wouldn’t be doing their duty. I think you
would object if they didn’t give her the opportunity, if they hadn’t
given her the opportunity. I don’t think you can have it both ways.
I think the argument that we are asking for this grandmother to
be able to care for the children but they shouldn’t have asked us
to take steps, it doesn’t make sense to me.
[ATTORNEY FOR MATERNAL GRANDMOTHER]: No, I’m saying that
because they have asked her to take steps, they have treated her
as a party to this case and not just as a potential kinship foster
home.
[THE COURT]: I think she has every right, and she should have
participated all along in this case. That doesn’t mean she has
standing. . . .
Permanency Review Hearing, 12/1/17, at 30-33.
On December 11, 2017, the juvenile court entered its order changing
Children’s permanent placement goal from reunification to adoption. Maternal
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Grandmother timely filed a notice of appeal and concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Maternal Grandmother presents identical issues with regard to A.G. and
Ka.G., and thus we address them together. Maternal Grandmother raises the
following issues for our review:
1. Did the court below err when it continued Child’s placement in
a foster home, despite the fact that [Maternal Grandmother] is
Child’s maternal grandmother and is fully capable of caring for
Child and meeting her needs in her home?
2. Did the court below err when it found that the placement of
Child continued to be necessary and appropriate, when the
evidence showed that [Maternal Grandmother] completed all
tasks set forth in the service plan that was established for
[Maternal Grandmother] to reunify with Child?
3. Did the court below err when it changed the permanent
placement goal to Adoption, despite the fact that it is in Child’s
best interest to return to [Maternal Grandmother], with whom
she previously resided?
4. Did the court below err when it found that Child’s “placement
is the least restrictive placement that meets the needs of the
Child, and there is no less restrictive alternative available, in
that the child is placed with a half-sibling in the most family
like setting available,” when the evidence showed that
[Maternal Grandmother], who is the maternal grandmother of
child, is fully capable of caring for Child in her home, which
would be the least restrictive and most family-like setting
available for this Child?
5. Did the court below err when it found that reasonable efforts
had been made to place Child and her siblings together, when
Child has one sibling residing with [Maternal Grandmother],
and one sibling residing in another foster home, and despite
the fact that [Maternal Grandmother] is fully capable of caring
for Child and all of her siblings in [Maternal Grandmother’s]
home?
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Maternal Grandmother’s Brief (A.G.) at 19-21 (juvenile court answers
omitted).2
Generally, the issues Maternal Grandmother presents for our review
assail the change in permanency goal from reunification to adoption. Both the
juvenile court, Agency and guardian ad litem (GAL) contend, however, that
Maternal Grandmother lacks standing to challenge the goal change “because
[Maternal Grandmother] does not fall in any of the categories of standing
enumerated by the Superior Court and cannot be conferred status by virtue
of being a grandparent, in the context of a dependency proceeding.”
Appellee’s Brief (GAL) at 4; see also Trial Court Opinion, 2/13/18, at 3-5.
“An issue regarding standing to participate in dependency proceedings
is a question of law warranting plenary review, and our scope of review is de
novo.” In re C.R., 111 A.3d 179, 182 (Pa. Super. 2015). “[T]he question of
standing is whether a litigant is entitled to have the court decide the merits of
the dispute or of particular issues.” Id. (quoting Silfies v. Webster, 713
A.2d 639, 642 (Pa. Super. 1998)).
Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.A.
§ 6301 et seq. The Juvenile Act provides that all parties to a dependency
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2We note Maternal Grandmother’s violation of Pennsylvania Rules of Appellate
Procedure 2119. The Rule provides, in pertinent part, “[t]he argument shall
be divided into as many parts as there are questions to be argued[.]”
Pa.R.A.P. 2119(a). However, because Maternal Grandmother’s violation does
not substantially impede appellate review, we decline to quash the appeal.
See In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010) (“This Court may
quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate Procedure.”).
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proceeding are entitled to counsel, to present evidence, and to cross-examine
witnesses. 42 Pa.C.S.A. §§ 6337, 6338; see also In re L.C. II, 900 A.2d
378, 380-81 (Pa. Super. 2006). This Court has defined “party” to include “(1)
the parents of the juvenile whose dependency status is at issue; (2) the legal
custodian of the juvenile whose dependency status is at issue, or (3) the
person whose care and control of the juvenile is in question.” In re J.S., 980
A.2d 117, 120 (Pa. Super. 2009). Foster parents, kinship parents, pre-
adoptive parents, and other caregivers, however, are not automatically
considered parties to a dependency proceeding. Rather, a non-parent’s right
to participate in a dependency proceeding is governed by Section 6336.1 of
the Juvenile Act, which states:
The court shall direct the county agency or juvenile probation
department to provide the child’s foster parent, pre[-]adoptive
parent or relative providing care for the child with timely notice of
the hearing. The court shall provide the child’s foster parent, pre[-
]adoptive parent or relative providing care for the child the right
to be heard at any hearing under this chapter. Unless a foster
parent, pre[-]adoptive parent or relative providing care for
a child has been awarded legal custody pursuant to section
6357 (relating to rights and duties of legal custodian),
nothing in this section shall give the foster parent, pre[-
]adoptive parent or relative providing care for the child
legal standing in the matter being heard by the court.
42 Pa.C.S.A. § 6336.1(a) (emphasis added). Therefore, the Juvenile Act is
clear that if a foster parent, pre-adoptive parent, or relative providing care for
a child has not been granted legal custody of the child, he or she does not
have standing to participate as a party in the dependency proceeding, and
instead is entitled to notice of the hearing and the opportunity to be heard.
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Maternal Grandmother does not contend, and the record does not
reflect, that she was awarded legal custody of Children. To the contrary, the
Agency is their legal custodian. See Permanency Review Order, 12/11/17, at
6. Instead, Maternal Grandmother argues that because she was treated like
a party, she has standing to challenge the juvenile court’s permanency review
order. Maternal Grandmother’s Reply Brief (A.G) at 1. Alternatively, Maternal
Grandmother asserts that even if she lacks standing, both the Agency and
GAL are estopped from raising the issue now because they failed to make a
timely objection to her treatment as a party. Id. at 3.
Pursuant to Section 6336.1(a), Maternal Grandmother does not have
standing, she does not have the rights of a party, i.e., the right to counsel, to
call witnesses, to conduct cross-examination, and to file an appeal. See 42
Pa.C.S.A. §§ 6336.1(a), 6337, 6338; Pa.R.A.P. 501. To the extent that the
juvenile court denied Maternal Grandmother any of these opportunities, the
juvenile court did not err.
However, pursuant to Section 6336.1(a), Maternal Grandmother was
entitled to notice of the hearing and an opportunity to be heard. The record
reflects that the juvenile court permitted Maternal Grandmother to be heard
at the December 1, 2017 hearing. It allowed Maternal Grandmother to
express her position, to update the court about her care of Children, and to
rebut the contentions of the Agency’s testifying witness. N.T., 12/1/17, at
18-24. Indeed, the juvenile court went beyond merely allowing Maternal
Grandmother “to be heard,” as it appointed her counsel and allowed her to
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call witnesses to testify on her behalf. Id. at 11-15. Maternal Grandmother
provides no legal authority, nor are we aware of any, that supports her
contention that such treatment by the juvenile court conferred her with legal
standing. To the contrary, our case law is clear that kinship foster parents do
not have standing to participate in dependency proceedings. 42 Pa.C.S.A. §
6336.1 (“nothing in this section shall give the foster parent, preadoptive
parent or relative providing care for the child legal standing in the matter
being heard by the court.”) (emphasis added). We therefore find that the
juvenile court did not err in its treatment of Maternal Grandmother at the
hearing.
Moreover, we likewise reject Maternal Grandmother’s assertion that the
Agency/GAL waived the challenge to standing because it failed to timely
object. The record reveals that Maternal Grandmother first asserted her right
to standing at the December 1, 2017 permanency review hearing. Children’s
GAL immediately made a contemporaneous objection, stating plainly on the
record that he believed Maternal Grandmother lacked legal standing to
challenge Children’s goal change.
Pertinently, because we have concluded that Maternal Grandmother
lacked standing, we are without jurisdiction to decide the merits of her issues.
See K.B. II v. C.B.F., 833 A.2d 767, 774 (Pa. Super. 2003) (“When a statute
creates a cause of action and designates who may sue, the issue of standing
becomes interwoven with that of subject matter jurisdiction. Standing then
becomes a jurisdictional prerequisite to an action.”) (emphasis omitted).
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Maternal Grandmother’s lack of standing is dispositive in this appeal.
Accordingly, we affirm the permanency review orders changing the Children’s
placement goals from reunification to adoption.3
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/30/2018
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3 We reiterate that our holding is mandated by the language of the Juvenile
Act; to the extent our decision may be perceived as draconian, we are
cognizant of and note that the juvenile court has demonstrated thoughtful
consideration in presiding over this case, including its efforts to maintain the
siblings’ relationships through their visits with Maternal Grandmother every
other weekend.
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