In the Int. of: S.R., a Minor Appeal of: J.H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.H., MOTHER
No. 328 MDA 2016
Appeal from the Order Entered January 25, 2016
In the Court of Common Pleas of Schuylkill County
Juvenile Division at No(s): CP-54-DP-0000051-2013
BEFORE: BOWES, OLSON AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 06, 2017
J.H. (“Mother”) appeals from the juvenile court’s January 25, 2016
orders that discharged S.R. from a prior adjudication of dependency,
terminated court supervision, and awarded permanent legal custody (“PLC”)
to the child’s paternal great aunt and uncle, L.R. and L.R (“Aunt and Uncle”).
We reverse and remand.1
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1
Mother filed with this Court a petition to strike Aunt and Uncle’s brief and
to quash their status as intervenor based upon their alleged lack of standing.
Mother relies upon the well-ensconced precept that foster parents, even
kinship foster parents, are not considered parties to dependency proceedings
because the agency retains legal custody of the dependent child. However,
in treating Aunt and Uncle as typical foster parents in the case at bar,
Mother ignores the reality that the trial court specifically named Aunt and
Uncle as S.R.’s legal and physical custodians as early as October 2013.
Hence, they have had standing to participate in the dependency proceedings
(Footnote Continued Next Page)
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S.R. was born during March 2012. Schuylkill County Child and Youth
Services (“CYS”) became involved with this family approximately one year
later, in response to a report that the family was living in squalor and that
C.R. (“Father”), Mother’s live-in paramour, was a founded perpetrator of
sexual abuse against one of S.R.’s two half-sisters.2 Upon further
investigation, the agency uncovered allegations that Father continued to
sleep in the same bed as the victim.
On April 1, 2013, the juvenile court adjudicated S.R. dependent due to
a lack of proper parental care and control. While Mother initially retained
physical custody of S.R. subject to CYS supervision, the child was removed
from the home on June 17, 2013, based upon Mother’s failure to rectify the
deplorable living conditions or protect the children from Father, who
continued to care for the children without supervision. S.R. was placed
briefly with maternal grandmother, but after concerns arose regarding
inappropriate discipline and the grandmother’s alcohol abuse, the juvenile
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(Footnote Continued)
since that date. See In the Interest of L.C., II, 900 A.2d 378, 381
(Pa.Super. 2006) (“Due process requires that the child's legal caregiver, be
it a parent or other custodian, be granted party status in order to be able to
participate and present argument in the dependency proceedings.”) Thus,
we deny Mother’s petition to strike Aunt and Uncles’ brief and to quash their
intervention as Appellees.
2
Neither of those children is the subject of this appeal.
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court granted temporary legal and physical custody to Aunt and Uncle. CYS
has maintained a supervisory role throughout this case.
During the course of the ensuing twenty-seven months, Aunt and
Uncle retained their status as temporary legal and physical custodians and
Mother demonstrated modest progress toward the goals of the Family
Service Plan (“FSP”). Mother obtained housing and consistently attended
supervised visitations with S.R. and mental health appointments.
Significantly, however, while Mother informed the agency that she
terminated her relationship with Father during the summer of 2014, Father
subsequently verified that he and Mother maintained a surreptitious
relationship as late as November 2015, which she asked him not to reveal.
Similarly, although Mother attended her mental health proceedings
regularly, she exhibited a history of dishonesty with her treatment providers.
During the biannual permanency review hearing that preceded the hearing
that is the genesis of this appeal, CYS noted its concern with Mother’s lack of
progress in her treatment and her capacity to protect S.R. from harm. It
recommended that the court endorse Aunt and Uncles’ permanent
custodianship and vacate the order requiring agency supervision.
CYS did not file a formal petition to discharge S.R. from dependency in
this case. Instead, at the outset of the January 25, 2016 permanency
review hearing, CYS requested orally that the juvenile court terminate the
agency’s supervision of the the case, transfer PLC to Aunt and Uncle, and
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close the dependency proceedings relating to then three-year-old S.R. The
crux of the agency’s position is that, in light of Aunt and Uncle’s
guardianship, S.R. is no longer without parental care and control under §
6302. In support of its request, CYS sought to introduce an affidavit-style
report compiled by Christina Alexander, the CYS caseworker assigned to the
family, and to present Ms. Alexander for cross-examination.
While neither Mother nor her counsel, Byron Walker, Esquire, appeared
at the hearing, paternal Aunt and Uncle, Father and his counsel, the
guardian ad litem, CYS’s attorney were present. Ms. Alexander and two
other witnesses attended the hearing. The trial court observed that Attorney
Walker had called the courthouse prior to the hearing and requested a
continuance due to what he characterized as blizzard conditions that
occurred during the preceding two days in neighboring Dauphin County.3
Although Attorney Walker provided the juvenile court his telephone number,
the court declined to contact him. Instead, it noted that the roads in
Schuylkill County had been cleared, that Mother lived within walking
distance of the courthouse, and that the remaining parties and witness all
attended the hearing. The court also considered that CYS, Father, Aunt and
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3
Attorney Walker’s mailing address is a post office box in Carlisle,
Pennsylvania, which is the seat of Cumberland County. Nevertheless,
assuming that his practice is located there rather than Dauphin County,
Attorney Walker would be required to traverse the affected county to attend
the hearing.
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Uncle, and the guardian ad litem all opposed the continuance. It ultimately
denied Attorney Walker’s motion for a continuance.
Thereafter, the trial court admitted Ms. Alexander’s affidavit without
opposition, and following a brief examination of Ms. Alexander regarding
who would supervise Mother’s visitations with S.R. once the PLC was in
effect, the trial court granted CYS’s request to terminate court supervision.
It entered the above-referenced order that discharged the adjudication of
dependency and terminated the trial court’s supervision of the case. The
concomitant permanency review order entered on the same date formalized
the PLC, established the parameters of Mother’s supervised visitations with
S.R., and outlined her right to stay abreast of all medical and educational
decisions relating to S.R.4 This timely appeal followed.5
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4
Pursuant to 42 Pa.C.S. § 6351(a)(2.1)(i), juvenile courts have the
authority to enter a disposition order that transfers permanent legal custody
of a dependent child to “Any individual resident within or without this
Commonwealth, including any relative, who . . . is found . . . to be qualified
to receive and care for the child.” See also 42 Pa.C.S. § 6351(f.1)(3) (“the
court shall determine . . . [i]f and when the child will be placed with a legal
custodian in cases where the return to the child's parent . . . is not best
suited to the safety, protection and physical, mental and moral welfare of
the child.”).
5
Mother filed a motion for reconsideration, which the trial court denied on
March 1, 2016. The motion did not affect the timeliness of Mother’s appeal.
See Pa.R.C.P. 1930.2(b)(unless reconsideration is granted, motion does not
extend appeal period).
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Mother’s Pa.R.A.P. 1925(a) statement raised three issues, which she
reiterated on appeal. We abbreviated Mother’s claims for clarity.
a. Whether the [t]rial [c]ourt committed reversible error and
an abuse of discretion in the denial of [her] emergency
continuance . . . [due to] . . . exigent circumstances[.]
b. Whether the trial court committed reversible error under
the Juvenile Act, 24 Pa.C.S. § 6301 et seq., in terminating court
supervision and granting legal and physical custody to [Aunt and
Uncle.]
c. Whether the trial court committed reversible error under
the Juvenile Act, 42 Pa.C.S. § 6301 et seq., in terminating court
supervision and granting legal and physical custody to [Aunt and
Uncle] where [the court did not identify who would supervise
Mother’s continued visitation with her daughter.].
Appellant’s brief at 4-5.
Pennsylvania Rules of Juvenile Civil Procedure 1122(A), regarding
continuances of juvenile proceedings, provides as follows:
A. Generally. In the interests of justice, the court may grant a
continuance on its own motion or the motion of any party.
On the record, the court shall identify the moving party and
state its reasons for granting or denying the continuance.
Pa.R.J.C.P. 1122(A). The comment to Rule 1122 explains that a continuance
should not be granted “when [it] could be deleterious to the safety or well-
being of a party.” Likewise, the comment states, “The interests of justice
require the court to look at all the circumstances, effectuating the purposes
of the Juvenile Act, 42 Pa.C.S. § 6301, in determining whether a continuance
is appropriate.” Id.
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This Court reviews a trial court’s decision to grant or deny a
continuance for an abuse of discretion. Baysmore v. Brownstein, 771
A.2d 54, 57 (Pa.Super. 2001). “An abuse of discretion is more than just an
error in judgment and, on appeal, the trial court will not be found to have
abused its discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the results of partiality, prejudice, bias or
ill-will.” Id. In addition to the guidance outlined in Rule 1122, relating
specifically to juvenile court proceedings, in determining whether a trial
court’s denial of a motion to continue was tantamount to an abuse of
discretion we consider: “(1) whether the opposing party would have been
prejudiced by a delay; (2) whether the opposing party agreed to the
continuance; (3) the length of the delay requested; and (4) the complexities
involved in trying the case.” Krupa by Krupa v. Williams, 463 A.2d 429,
434 (Pa.Super. 1983); see also Papalia v. Montour Auto Service
Company, 682 A.2d 343, 345 (Pa.Super. 1996).
The trial court proffered the following reasons for denying Mother’s
motion for a continuance.
At the time of the Hearing the Court was presented with a
Continuance Request by Mother's attorney because of a blizzard
that had occurred the weekend prior to the Hearing date. All of
the parties at the Hearing opposed the Continuance because the
roads were clear and everyone but Mother and her Counsel were
present and prepared to proceed. It is noted that the Schuylkill
County Courthouse was open for business as usual on the date
of the Hearing. The Court Denied the Continuance Request and
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proceeded with the Juvenile Review Hearing, as the well-being of
a minor child was at issue.
Trial Court Opinion and Order, 3/1/16, at 2.
Mindful of the guidance provided in Rule 1122 and the considerations
we enumerated in Krupa, supra and Papalia, supra, we find that the trial
court abused its discretion in denying the request without contacting
Attorney Williams. First, we observe that, while all of the Appellees opposed
the delay, they did not allege any prejudice flowing from the continuance.
Appellees’ collective reasoning was that they all were able to attend the
hearing and that the agency’s request to discharge the dependency and
transfer PLC to Aunt and Uncle was meritorious. Our review of the certified
record reveals that the requested continuance was not “deleterious to
[S.R.’s] safety or well-being” insofar as it would not have altered S.R.’s
placement with Aunt and Uncle, the FSP, or the child’s safety plan. See
comment to Rule 1122. Additionally, there were no time-sensitive
proceedings scheduled, such as the termination of parental rights or a
prospective adoption, that would have been derailed by granting the
continuance. Indeed, as Appellant accurately observes, the continuance
would have maintained the existing state of affairs until the hearing could be
rescheduled. This threshold factor militates in Mother’s favor.
Furthermore, in contrast to Appellees’ shared perspective that Mother
did not suffer harm as a result of the court’s denial the motion for
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continuance, the record establishes that the decision to proceed without
Mother or Attorney Walker was, in fact, prejudicial. Collectively, Appellees
argue that since Mother retained her parental rights, supervised visitations,
and the ability to file a custody action pursuant to the Child Custody Law,
she was not harmed by the juvenile court’s decision to discharge S.R.’s
adjudication of dependency in her absence and award Aunt and Uncle
permeant legal custody. This superficial perspective ignores the realities of
dependency proceedings.
The order discharging S.R. from dependency inevitably terminated the
reunification resources, counseling, and mental health treatment that Mother
received through CYS’s service providers. In light of the facts that the
purposes of the Juvenile Act are a central consideration when reviewing the
propriety of a continuance, and that “preserv[ing] the unity of the family
whenever possible” is among the primary purposes of the Act, the prejudice
to Mother in this case is manifest. See 42 Pa.C.S. § 6301(b)(1). Rather
than simply discharging the dependency in Mother’s absence and
transferring PLC to Aunt and Uncle, the court terminated all of the
reunification resources that Mother had previously received. Again, these
circumstances weigh in favor of Mother.
The next factor we consider relates to the length of the delay
associated with the requested continuance. At first glance, this factor does
not appear to militate in favor of either granting or denying the continuance.
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Attorney Walker, who had the farthest distance to drive to attend the
hearing, did not request to postpone the hearing to a specific date.
Likewise, the certified record does not reveal the status of the juvenile court
calendar, Appellees’ availability, or the ability of Ms. Alexander or the
remaining witnesses to return at a later date. Nevertheless, notwithstanding
the dearth of evidence to consider under this factor, we observe that the
trial court could have alleviated this issue altogether had it contacted
Attorney Walker as requested and directed him to participate by telephone.
The final factor addresses the complexities involved in the case.
Significantly, we conclude that the trial court’s decision to proceed with the
hearing without Mother or her counsel and dispose of the mater in absentia
impeded Mother’s rights to due process. As this Court stated in In Interest
of Jones, 429 A.2d 671, 673 (Pa.Super. 1981), “a parent in a dispositional
hearing has a constitutional right under the due process clause to confront
and cross-examine adverse witnesses.” Due process calls for such
procedural protections as are required under the particular circumstances of
the case. In In re F.C., III, 966 A.2d 1131, 1138 (Pa.Super. 2009), we
reiterated, “due process is a flexible concept incapable of exact definition,
and is concerned with the procedural safeguards demanded by each
particular situation in light of the legitimate goals of the applicable law.”
Jones concerned the in-court presentation of evidence during the
dispositional stage of a dependency hearing. In that case, we held that by
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denying a mother information concerning the identity of a witness who
presented critical testimony against her and by barring her from the
witness’s examination, the trial court failed to comport with the mandates of
due process and denied her “the most important cross-examination tool:
knowledge of the witness’s identity and with it any bias which could prompt
the witness to testify as he did.” Id. at 676. Accordingly, we vacated the
trial court’s decision that was adverse to the mother, and we remanded the
matter for a new dispositional hearing.
As in Jones, supra, the juvenile court’s disposition in the instant case
infringed upon Mother’s due process. Preliminarily, we note that Mother was
denied formal notice of CYS’s request to discharge the dependency. More
importantly to our analysis herein, and similar to the constitutional
protections at issue in Jones, Mother was deprived of her right to confront
Ms. Alexander about her report and recommendation, the cornerstone of the
juvenile court’s decision to grant the agency’s request. Significantly, as
referenced in our discussion of factor three, the court elected to discharge
the dependency proceedings in absentia rather than utilize the contact
information Attorney Walker provided. The juvenile court could have, but
did not, scrutinize counsel’s account of the inclement weather or, as
previously stated, require him to participate in the hearing by telephone. At
a minimum, a telephone conference would have preserved Mother’s right to
cross-examine Ms. Alexander about her report and recommendation. As it
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now stands, the juvenile court encroached upon Mother’s due process rights
and the interests of justice require that we reverse the orders entered in
absentia and remand for a new hearing on CYS’s request to discharge the
adjudication where Mother can exercise her due process right of
confrontation.
For all of the foregoing reasons, we find that the juvenile court abused
its discretion by declining to grant the continuance under the circumstances
of this case.
Orders reversed. Petition denied. Matter remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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