J-A32037-16

2017 PA Super 42

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

PENNSYLVANIA

 

APPEAL OF: THE CITY OF PHILADELPHIA 

DEPARTMENT OF HUMAN SERVICES

No. 1620 EDA 2016

Appeal from the Order Entered April 26, 2016

in the Court of Common Pleas of Philadelphia County

Family Court at Nos.: CP-51-DP-000905-2016

FID#51-FN-000830-2016

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

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

Appellant, the City of Philadelphia Department of Human Services 

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

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

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

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

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

____________________________________________

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

remand to the trial court.

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

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

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

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

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

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

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

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

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

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

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

had made reasonable efforts to prevent his placement.

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

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

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

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

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

____________________________________________

1

Federal funding for foster care program costs for K.C. will be denied to DHS 

because of the trial court’s conclusion that it did not make reasonable efforts 

to prevent the need for removal. See 42 U.S.C.A. § 672(a)(2)(ii).
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At the adjudicatory hearing, counsel for DHS presented the prehearing conference agreement to the trial court. The court heard testimony 

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

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

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

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

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

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

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

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

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

THE COURT: . . . I’m struggling with giving DHS reasonable 

efforts because it’s hard for me to believe that based on the face 

of this you would not come with a placement in hand.

[DHS COUNSEL]: . . . I think it was just our impression that 

mother was okay with him remaining. . . .

THE COURT: Even if that was her conversation, you guys have 

to have a concurrent plan. And see, the thing about it is fair or 

unfair I hold DHS to a higher standard . . . . So my whole thing 

is you had to come in here with a placement. You had to. So 

because of that I can’t give you reasonable efforts because it’s 

put me in a situation that I feel like I have to be planning for a 

child and that shouldn’t be my role here. So I can’t give you 

reasonable efforts.

(Id. at 20-21). 

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

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

instead of applying the reasonable efforts standard applicable for required 
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preplacement findings, 42 Pa.C.S.A. § 6351(b), the court erroneously 

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

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

timely appeal followed.2

DHS raises three issues on appeal.

1) Whether [DHS], a Pennsylvania Children and Youth Agency, 

may properly appeal that portion of the trial court’s order which 

denied that it made reasonable efforts to prevent a child’s 

placement, where the trial court applied the incorrect legal 

standard, where the facts do not support the trial court’s order 

under the correct legal standard, and where DHS faces 

significant financial penalties as a result of the trial court’s 

order[?]

2) Whether the trial court erred as a matter of law in applying 

an incorrect legal standard when determining whether DHS 

made reasonable efforts to prevent or eliminate the need for the 

placement of K.C., a minor child[?]

3) Whether the trial court erred as a matter of law in holding 

that the record evidence did not support an order finding that 

DHS made reasonable efforts to prevent or eliminate the need 

for the placement of K.C., where K.C. was found by the trial 

court to be incorrigible and truant, and where K.C. was found to 

be non-compliant with preventative services[?]

(DHS’s Brief, at 4).3

____________________________________________

2 On May 25, 2016, DHS filed its notice of appeal together with its concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i). 

The trial court entered its opinion on August 5, 2016. See Pa.R.A.P. 

1925(a)(2)(ii).

3 DHS’s first issue was not included in its statement of errors complained of 

on appeal. However, because it simply addresses the rule to show cause 

issued by this Court on June 28, 2016, with respect to whether DHS had 

standing to appeal, we will consider the argument.
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In its first issue, DHS argues that because the court denied its request 

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

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

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

Our Rules of Appellate Procedure provide:

Rule 501. Any Aggrieved Party May Appeal

Except where the right of appeal is enlarged by statute, any 

party who is aggrieved by an appealable order, or a fiduciary 

whose estate or trust is so aggrieved, may appeal therefrom.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that the court did not properly apply the standard for preplacement findings 
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set forth in 42 Pa.C.S.A. § 6351(b), but instead applied the standard 

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

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

Our standard and scope of review in dependency cases is 

well settled.

[W]e must accept the facts as found by the trial 

court unless they are not supported by the record. 

Although bound by the facts, we are not bound by the trial 

court’s inferences, deductions, and conclusions therefrom; 

we must exercise our independent judgment in reviewing 

the court’s determination, as opposed to its findings of 

fact, and must order whatever right and justice dictate. We 

review for abuse of discretion. Our scope of review, 

accordingly, is of the broadest possible nature. It is this 

Court’s responsibility to ensure that the record represents 

a comprehensive inquiry and that the hearing judge has 

applied the appropriate legal principles to that record. 

Nevertheless, we accord great weight to the court’s factfinding function because the court is in the best position to 

observe and rule on the credibility of the parties and 

witnesses.

In re E.P., 841 A.2d 128, 131 (Pa. Super. 2003), appeal denied, 857 A.2d 

679 (Pa. 2004) (citation omitted).

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

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

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

(b) Required preplacement findings.—Prior to entering any 

order of disposition under subsection (a) that would remove a 

dependent child from his home, the court shall enter findings on 

the record or in the order of court as follows:

(1) that continuation of the child in his home would 

be contrary to the welfare, safety or health of the child; 

and
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(2) whether reasonable efforts were made prior to 

the placement of the child to prevent or eliminate the need 

for removal of the child from his home, if the child has 

remained in his home pending such disposition; or

(3) if preventive services were not offered due to the 

necessity for an emergency placement, whether such lack 

of services was reasonable under the circumstances; or

(4) if the court has previously determined pursuant 

to section 6332 (relating to informal hearing) that 

reasonable efforts were not made to prevent the initial 

removal of the child from his home, whether reasonable 

efforts are under way to make it possible for the child to 

return home; and

(5) if the child has a sibling who is subject to 

removal from his home, whether reasonable efforts were 

made prior to the placement of the child to place the 

siblings together or whether such joint placement is 

contrary to the safety or well-being of the child or sibling.

The court shall not enter findings under paragraph (2), (3) or (4) 

if the court previously determined that aggravated circumstances 

exist and no new or additional reasonable efforts to prevent or 

eliminate the need for removing the child from the home or to 

preserve and reunify the family are required.

* * *

(e) Permanency hearings.—

(1) The court shall conduct a permanency hearing for 

the purpose of determining or reviewing the permanency 

plan of the child, the date by which the goal of 

permanency for the child might be achieved and whether 

placement continues to be best suited to the safety, 

protection and physical, mental and moral welfare of the 

child. . . .

* * *

(f) Matters to be determined at permanency hearing.—At 

each permanency hearing, a court shall determine all of the 

following:
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(1) The continuing necessity for and appropriateness 

of the placement.

(2) The appropriateness, feasibility and extent of 

compliance with the permanency plan developed for the 

child.

(3) The extent of progress made toward alleviating 

the circumstances which necessitated the original 

placement.

(4) The appropriateness and feasibility of the current 

placement goal for the child.

(5) The likely date by which the placement goal for 

the child might be achieved.

(5.1) Whether reasonable efforts were made to 

finalize the permanency plan in effect.

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

Here, the trial court’s inquiry at the hearing with regard to whether 

reasonable efforts were made focused on whether DHS had made reasonable 

efforts to finalize a placement for K.C. The court did not discuss what 

efforts, if any, were made to “prevent or eliminate the need for removal of 

[K.C.] from his home”, nor did it determine whether this was an emergency 

placement and therefore “such lack of services was reasonable under the 

circumstances[.]” 42 Pa.C.S.A. §§ 6351(b)(2), (3). Rather, it based its 

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

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

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

exhaust reasonable efforts to properly plan for placement for K.C. after 
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identifying the need for removal of this child from the home.” (Trial Court 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

based upon the court’s finding that DHS did not have a permanent 

____________________________________________

4 We observe that DHS could not identify the need for removal until 

immediately before the hearing when Mother, for the first time, requested 

that K.C. be placed outside the home because of her fear of K.C. returning 

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

4, 37-44). We agree.

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

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

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

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

home,” or “if preventive services were not offered due to the necessity for 

an emergency placement, whether such lack of services was reasonable 

under the circumstances[.]” 42 Pa.C.S.A. § 6351(b)(2), (3).

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

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

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

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

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

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

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

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

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

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

of law in making a reasonable efforts determination without considering the 

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

Order vacated in part. Case remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2017