In the Int. of: A.Z., Appeal of: J.Z. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.Z., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.Z., MOTHER :
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: No. 3106 EDA 2022
Appeal from the Order Entered November 7, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001210-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY PANELLA, P.J.: FILED MAY 23, 2023
J.Z. (“Mother”) appeals from the Philadelphia County Court of Common
Pleas’ November 7, 2022 permanency review order which kept the
permanency goal for J.Z.’s child, A.Z., (“Child”), as reunification with Mother,
but made a specific notation that there was a concurrent placement plan of
adoption in place. The court held a permanency review hearing on the same
day it entered this order. Mother argues, in essence, that this hearing was
inadequate and did not provide a sufficient basis for the court to enter its
order, which Mother contends changed Child’s permanency goal from
reunification to adoption. We disagree, and therefore affirm.
The facts leading up to this appeal are largely undisputed. Child was
born in 2016. In November 2020, the Philadelphia Department of Human
Services (“DHS”) received a General Protective Services report alleging
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Mother suffered from mental health issues and Child lacked adequate food and
medical care. DHS interviewed Mother, and obtained an Order of Protective
Custody and placed Child with her maternal grandmother. On November 25,
2020, DHS filed a dependency petition.
Meanwhile, the Community Umbrella Agency (“CUA”) set several
objectives for Mother at its December 9, 2020 Single Case Plan (“SCP”)
meeting. Those objectives included: the completion of a behavioral health
evaluation; attendance of parenting classes; and supervised visitation with
Child.
The trial court ultimately adjudicated Child dependent. The court
ordered Mother to have weekly, supervised, line-of-sight and sound-of-
hearing visits with Child, and also ordered Mother to undergo a Parenting
Capacity Evaluation (PCE). Child’s permanency goal was listed as reunification
with Mother.
The court held permanency review hearings on July 12, 2021, October
12, 2021, January 10, 2022, and April 11, 2022. The permanency goal for
Child remained reunification with Mother in each of the orders entered
following those hearings.
On June 8, 2022, after Child had been in placement for over 18 months
and because Mother had not fully complied with her objectives, DHS filed
petitions to change Child’s permanency goal from reunification with Mother to
adoption and to involuntarily terminate Mother’s parental rights. The trial
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court held a hearing on June 27, 2022, but because Mother’s PCE remained
outstanding, the hearing was conducted as a permanency review hearing.
Child’s permanency goal remained reunification, and a goal-change hearing
was scheduled for November 7, 2022.
At the hearing on November 7, Mother’s PCE still had not been scheduled
and DHS requested that the hearing, although scheduled as a goal-change
hearing, proceed as a permanency review hearing. See N.T., 11/7/2022, at
3-4. The trial court then heard testimony from the CUA case manager,
Jadanne Vossah. Vossah testified that Child was doing well in her placement
with her maternal grandmother, and that Mother had completed family school
and continued to have supervised visits with Child that were going well. See
id. at 8, 11. Vossah also testified that although Mother was enrolled in mental
health treatment, Vossah was concerned that Mother’s therapist had not
addressed the dependency concerns which brought Child into care. See id. at
9. According to Vossah, she had discussed those concerns with Mother’s
therapist, and the therapist planned to address them with Mother. See id.
Vossah maintained that Child wished to continue to live with her grandmother,
but also wanted to continue her visits with Mother. See id. at 10.
Immediately after the hearing, the court entered a permanency review
order, which the court explained as follows:
[T]he Court ordered [Child] to remain as committed and placed
with maternal grandmother. The permanence placement goal for
[Child] remained reunification. Mother’s visits were expanded to
supervised twice weekly in the community, line-of-sight, sound-
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of-hearing, with one of those visits being at [Child’s] discretion.
The Court also ordered DHS/CUA to discuss with Mother’s
therapist how [Child] came into care, and to follow up with
Mother’s PCE. DHS filed the Goal Change/TPR Petitions on June 8,
2022, thus the November 7, 2022, court order stated that the
concurrent placement plan for [Child] was adoption. (See
Permanency Review Order, 11/7/22). The matter was given a
court date of February 6, 2023 and scheduled [as] a Goal Change
Hearing.
Trial Court Opinion, 12/28/22, at 5. Specifically as to Child’s permanency goal
and planning, the order stated:
CURRENT PERMANENT PLACEMENT GOAL
The current placement goal for the child is return to parent or
guardian.
CONCURRENT PLACEMENT PLAN
The concurrent placement plan for the child is Adoption.
Permanency Review Order, 11/7/2022, at 1-2.
Mother filed a timely notice of appeal from this order, along with her
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In her
statement, Mother raised the single issue that the trial court had erred by
changing Child’s permanency goal from reunification and ordering a
concurrent plan of adoption without first holding a hearing on that goal
change. The trial court, in its Rule 1925(a) opinion, found Mother’s claim to
be meritless. The trial court explained that Mother’s claim was based on a
misunderstanding of its November 7, 2022 order in that the order did not
change Child’s permanent placement goal to adoption, but instead, retained
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the goal of reunification. The trial court also opined that because the
November 7, 2022 order had merely maintained the status quo, it was not
appealable as a final order.
On appeal, Mother raises this issue in her statement of questions
presented for review:
1. Did the trial court err when it added the goal of “concurrent
plan” for adoption, without a hearing?
Appellant’s Brief at 8 (trial court’s answer, mistakenly reported as answered
in the affirmative by the trial court, omitted). Although Mother’s question
challenges the trial court’s alleged failure to hold any hearing before entering
its November 7, 2022 order, Mother’s argument section suggests a different
argument. There, Mother cites general law regarding dependency,
permanency review hearings, and concurrent planning. She then recites the
testimony given by the CUA case manager and ends with this conclusory
argument:
Here, the court relied on the limited testimony from DHS.
…[T]he court could not have considered properly whether the
permanency plan developed for Child was appropriate or
feasible[.] Mother was in compliance with the plan, and Mother
was making positive progress toward alleviating the
circumstances necessitating the placement. See … In [the]
Interest of Z[.]V[.] 158 A.3d 665 [(Pa. Super. 2017)].
Therefore the trial court failed to conduct an adequate
hearing to address the plan change or [to] find Mother was not an
available resource for reunification. Therefore, this matter must
be remanded for a new hearing.
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Appellant’s Brief at 18-19. Based on these assertions, it appears Mother is
arguing that the evidence from the hearing held by the trial court was
inadequate to support its order, which Mother alleges changed Child’s
permanency goal of reunification.
We review a trial court’s decision in dependency matters for an abuse
of discretion. See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Dependency
matters are controlled by the Juvenile Act, which has a stated purpose of
preserving the unity of the family whenever possible. See 42 Pa. C.S.A. §
6301(b)(1). If a trial court finds a child to be dependent, as defined by Section
6302 of the Juvenile Act, the court must make an appropriate disposition
based on the safety, protection and physical, mental and moral welfare of the
child. See id. at § 6301(a). Such a disposition can include removal of the child
from the parent’s care. See id.
The Juvenile Act also requires a court to hold regular permanency
hearings for dependent children to determine, inter alia, the appropriateness,
feasibility and extent of compliance with a child’s current permanency plan,
the extent of progress made towards alleviating the circumstances which
necessitated the original placement, and the appropriateness of the current
placement goal. See 42 Pa. C.S.A. § 6351(f)(2)-(4). At the hearing, the court
must assess “whether the placement continues to be best suited to the safety,
protection and physical, mental and moral welfare of the child.” 42 Pa. C.S. §
6351(e). In cases where reunification is best suited to the child’s welfare,
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Section 6351(f.1) requires the court to determine “if and when” the child will
be reunified with their parent. See 42 Pa. C.S.A. § 6351(f.1)(1). In cases
where reunification is not best suited to the child’s welfare, the court must
make a determination regarding “if and when” the child will be placed for
adoption. See id. at § 6351(f.1)(2).
Concurrent planning is a practice, mandated by federal statute, which
allows child welfare service agencies to plan for the adoption of a child even
when the child’s permanency goal remains reunification with the parent.1 Our
Supreme Court has described concurrent planning as a “dual-track system
under which [agencies] provide services to parents to enable their
reunification with their children, while also planning for [adoption] should
reunification fail.” R.J.T., 9 A.3d at 1183 (citation omitted). In this way,
concurrent planning is geared towards preventing children from languishing
in the foster care system. See id. at 1186. “Rather than waiting to pursue
adoption options until all reunification attempts fail, concurrent planning
allows children to move more quickly through the dependency system and into
the permanent placement best suited to their individual situation through
simultaneous pursuit of reunification and alternative permanent placement.”
Id. Concurrent planning does not replace reunification as a goal but rather,
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1 The Adoption and Safe Families Act of 1997, Pub.L. 105-89, tied the
availability of federal funding to a state’s adoption of a plan that encompassed
several requirements, including concurrent planning. See In re Adoption of
S.E.G., 901 A.2d 1017, 1019 (Pa. 2006).
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“keep[s] alive the potential of reunification.” Id. at 1191. Given the benefits
of concurrent planning, the Court in R.J.T. specifically encouraged trial courts
to address the issue of concurrent planning in their orders in dependency
cases. See id.Here, in arguing that the hearing held by the trial court on November 7,
2022 was insufficient to support changing Child’s permanency goal in its
November 7, 2022 order, Mother fails to even acknowledge the trial court’s
explicit finding that Mother’s argument is premised on a misunderstanding
that its order changed Child’s permanency goal from reunification to adoption.
In its Rule 1925(a) opinion, the court specifically stated that following the
hearing on November 7, 2022, the court found that reunification was not
appropriate at that time, but that the “permanency goal for [Child] remained
reunification.” Trial Court Opinion, 12/28/2022, at 9; see id. at 11 (reiterating
that “a decision regarding whether to change Child’s goal from reunification
to adoption has not been made as this issue has not [yet] been heard by [this]
court”). The court acknowledged that because DHS had previously filed goal-
change and termination petitions that had not yet been litigated, it had added
a notation in its order that DHS was concurrently planning for adoption.
However, the court explained that such a notation had not uprooted or
replaced reunification as Child’s permanency goal:
Concurrent planning is a … best practice that allows DHS to
continue making reasonable efforts to reunify families while
simultaneously trying to identify other appropriate permanent
placements for the child. Adding a concurrent permanency plan
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to a child’s case does not mean that reunification is no longer a
viable option. Rather, while reunification is the primary
permanency goal in cases, concurrent planning can be used to
expedite permanency for the child if reunification should fail.
… A goal change hearing has not yet occurred for this case.
[Child’s] permanency goal remains reunification until such a
hearing occurs to determine whether that is the appropriate
permanency goal and if reunification is in Child’s best interest.
Id. at 10. The court noted that it had scheduled the next hearing, and had
listed that hearing as a goal-change hearing.
DHS reiterates what the trial court found - that the trial court’s order
did not change Child’s permanency goal to adoption nor did it direct DHS to
add a concurrent goal of adoption. “Rather, the trial court merely recognized
the current posture of [Child’s] dependency matter: that her permanency goal
was and remained reunification; and that DHS was concurrently planning for
adoption, as evidence[d] by its filing of goal change and termination of
parental rights petitions.” Appellee’s Brief at 9 (emphasis on certain words
omitted).
DHS also notes that Mother generally cites to Z.V. in support of her bald
assertions, but argues, as does Child’s guardian ad litem, that Z.V. is easily
distinguishable from this matter. As DHS explains:
In Z.V., the lower court entered an order directing the
county agency to add a concurrent goal of adoption without
holding a full hearing. See Z.V., 158 A.3d at 666. There, the lower
court reasoned that reunification [with the mother] was no longer
viable because it had previously found that aggravated
circumstances existed; that the county agency need not make
reasonable efforts towards reunification; and that visitation posed
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a grave threat to the child. [See id.] at 667-668. Critically, the
county agency had not yet filed goal change petitions and the
lower court took no testimony on [the m]other’s compliance and
progress with her objectives. Regardless, the lower court ordered
“THE DHS GOAL IS CHANGED TO ADOPTION. THE CURRENT GOAL
IS REUNIFICATION UNTIL PETITIONS ARE FILED … Reunification
has been ruled [out] as to [the mother] as a viable goal.” Id. at
668 [(capitalization in original; added emphasis omitted)]. In
vacating and remanding the order, [the Superior] Court explained
that the lower court “relied on the [prior] orders finding that
aggravated circumstances existed, no reasonable efforts were
necessary, and visitation would pose a grave threat” and failed to
consider the [Section] 6351(f) factors that it was required to do
at every permanency review hearing. Id. at 671.
In contrast, here, DHS had already begun concurrently
planning for adoption. Over two years had passed since DHS took
custody of [Child] in November 2020 and [Mother] had only made
moderate progress towards reunification. Thus, DHS filed a goal
change petition. While DHS could have moved on its petition at
the November 7, 2022 hearing, it elected not to and a permanency
review took place.
CUA reported that Mother had complied with some of her
objectives, but still needed to complete a PCE, more meaningfully
address why Child was removed from her care in therapy, and
progress beyond supervised visits. Based on this testimony, the
trial court granted DHS’[s] request for Child to remain committed
to its custody and supervised visitation to continue. The written
order reflected that Child’s placement goal remained reunification;
and that DHS was pursuing a concurrent placement plan of
adoption. The following hearing was scheduled for a goal change
proceeding on February 6, 2023.
In fashioning this order, the trial court clearly considered
the required factors under [Section] 6351(f). Child’s placement
continued to be necessary and appropriate because [Mother] still
needed to work on her SCP objectives, particularly mental health,
the PCE, and visitation, before reunification could occur. Unlike
the lower court in Z.V., the trial court did not order DHS to add a
concurrent goal of adoption or file goal change petitions; did not
declare a goal change; and took relevant testimony to support its
oral and written orders.
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Appellee’s Brief at 11-13 (some citations to notes of testimony and record
omitted).
We agree with DHS that Z.V. is clearly distinguishable from the instant
matter, given that the lower court in Z.V. specifically changed Z.V.’s goal to
adoption and found that reunification was no longer a viable option. We also
agree with DHS that the record supports the trial court’s finding that it did not
do either of those things in the order Mother now challenges. While it is true
the trial court’s order did note DHS was concurrently planning for adoption,
R.J.T. made clear that concurrent planning “keep[s] alive the potential for
reunification,” 9 A.3d at 1191, and does not, as Mother seems to suggest,
translate to a finding that Mother “was no longer a viable option for
reunification.” Appellant’s Brief at 19. In the end, we see no abuse of discretion
in the court’s finding that the hearing it conducted prior to entering its
November 7, 2022 order was sufficient and that a goal-change hearing was
not necessary before it entered that order because the order did not change
Child’s goal. Mother’s undeveloped assertions do not convince us otherwise.
We briefly address the issue of jurisdiction, which the trial court raised
in its opinion. We recognize that jurisdiction is typically addressed as an initial
matter, but the trial court’s concerns with jurisdiction arose only because of
its finding that the November 7, 2022 order did not, contrary to Mother’s
assertions, change Child’s permanency goal but simply continued the goal of
reunification. As such, the trial court questioned whether the order was final
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or otherwise appealable, citing In the Interest of N.M., 186 A.3d 998 (Pa.
Super. 2018). We do not agree that N.M. strips this Court of jurisdiction to
consider this appeal.
In N.M., this Court found that the permanency review orders under
appeal in that case were not final and appealable because they did not grant
or deny a change in the status of N.M.’s goal; the permanency goal remained
reunification throughout the orders; N.M’s parents had merely requested a
placement change from foster to kinship care at the hearing; and the orders
did not affect custody or visitation. See id. at 1006-1008. Notably, the
permanency review orders in N.M. also did not involve concurrent planning.
In contrast, the order at issue in this case, as our previous discussion makes
abundantly clear, addressed concurrent planning. Our Court has found that
we have jurisdiction over an appeal of a permanency review order which adds
a concurrent placement plan, even if it maintains the status quo. See Z.V.,
158 A.3d at 669.
We therefore disagree with the trial court that we do not have
jurisdiction to consider this appeal, but we do agree with the trial court that
the appeal lacks merit for all the reasons discussed above. The underlying
premise of Mother’s undeveloped claim is that the court changed Child’s
permanency goal and found Mother was no longer a resource for reunification,
but the record supports the trial court’s finding that this was not the effect or
the intent of its November 7, 2022 order. As the trial court made clear,
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reunification remains Child’s permanency goal until a goal-change hearing is
held to determine if reunification with Mother is not a viable option and Child’s
goal should be changed to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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