In the Int. of: J.L., Appeal of: J.L. ( 2019 )

J-A15023-19
2019 Pa. Super. 224
IN THE INTEREST OF: J.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.L., A MINOR : No. 240 EDA 2019
Appeal from the Order Entered December 11, 2018
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): CP-46-DP-0000278-2018
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.
OPINION BY GANTMAN, P.J.E.: FILED JULY 23, 2019
Appellant, J.L. (born June 2002), appeals from the order entered in the
Montgomery County Court of Common Pleas, which adjudicated him
dependent and temporarily placed J.L. in a youth residential facility, due to
his habitual truancy. We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
Turning to the facts of record, J.L. has a long history of
truancy, with attendance issues beginning three years ago,
when he was in the seventh grade. Now, in the 2018-2019
academic year, he is sixteen years old but is only in the ninth
grade, and is currently enrolled in that grade for the second
year in a row. In three years, J.L. lost one and one-half
years of education due to his truancy while the school
district and [the Montgomery County Office of Children and
Youth (“OCY”)] attempted to treat it outside of dependency
proceedings. This was the single most important fact
regarding the decision facing the undersigned on December
11th: whether to briefly remove J.L. from his home while
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* Retired Senior Judge assigned to the Superior Court.
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developing a diagnosis and treatment for his truancy, or
continue with the less-restrictive options that had proved
unsuccessful for three years.
The facts of record begin with J.L.’s 2017-2018 academic
year, when his school notified OCY that he was habitually
truant. He had accumulated twenty-two unexcused
absences by April of 2018. The OCY case worker did not file
a dependency petition at that time, but instead exercised
her judgment as to the “least restrictive option”…and chose
to employ “alternative services”…of the Academy Truancy
Diversion Program. Even with the deployment of that
alternative service in April of 2018, J.L. accumulated a total
of 44 unexcused absences for the 2017-2018 academic
year.
J.L’s 2018-2019 academic year began on September 4,
2018, yet by the reckoning of the undersigned he
accumulated 31 unexcused absences by the end of October.
Nonetheless, after J.L.’s school notified OCY about his
ongoing truancy in October 2018, the OCY case worker
again chose to divert his case to the Academy Truancy
Diversion [Program]. The OCY case worker did not formally
open a case until November 5, 2018, after the Academy
case worker reported that J.L. would not respond, except to
lock his bedroom door and refuse to open it, when the case
worker would arrive at his home in the morning to
personally support him getting to school.
On November 14, 2018, the OCY case worker met with J.L.
and his parents at their home. The case worker gave J.L.
goals that she expected him to meet, and although he
appeared cooperative, he failed to explain why he refused
to attend school. The school attendance record shows that
J.L. was absent every day from November 14th through
November 28th, …when the OCY case worker and a Multi-
Systemic Therapist met with J.L. and his parents at his
home[.] At that time, the case worker notified J.L. and his
parents that she had filed a dependency petition and that a
hearing on the petition would be held on December 11 th.
Once again, J.L. agreed to attend school. Once again,
however, he was unable to stand by his intention, even
knowing that he would be appearing [in] court shortly.
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Exhibit OCY-2 shows an unbroken record of 48 unexcused
absences from November 29th through December 5, 2018.
On December 6, 2018, the OCY case worker again met with
J.L. and his parents in their home to discuss his ongoing
truancy, and he proffered the excuse that he overslept and
missed the school bus because he is tired in the morning.
His case worker encouraged him to attend school in the few
days remaining before the hearing on the dependency
petition, but he could not bring himself [to] attend a single
day, even as his date in court loomed less than a week
away.
The undersigned received all of the foregoing facts at the
hearing on December 11, 2018 and found them to be clear
and convincing. Years of truancy indicated that J.L.’s
parents did not know what to do to support his attendance
at school. Their palpable anxiety, as witnessed by the
undersigned, evidenced by their furrowed brows, reinforced
that conclusion. J.L. needed immediate intervention
because of the amount of schooling he had lost, and
intervention by placement was preferable because none of
the interventions in the home had worked. J.L.’s parents
agreed with placement. Although the need for removal from
home was obvious to the undersigned and J.L.’s parents,
the undersigned believed a short-term program to alleviate
J.L.’s well-entrenched truancy would be sufficient. The
recommended Multi-Systemic Therapy, which had just
begun, …could be continued while he was in placement[.]
The undersigned found the foregoing facts to be clear and
convincing evidence that reasonable efforts were made to
prevent the need for removing J.L. from his home, and that
it would be contrary to J.L.’s welfare to permit him to remain
at home.
On December 19, 2018, J.L.’s lawyer filed a motion for
reconsideration of the order of December 11th. While that
motion was pending, the staff at Bethany Children’s Home
gave J.L. a furlough from December 24th through 26th, and
J.L. celebrated Christmas at home with his family. On
January 4, 2019, the undersigned filed an order scheduling
a hearing on the motion for reconsideration simultaneously
with the dispositional hearing on January 8th. At the
hearing, OCY, J.L.’s parents and J.L. agreed to an order
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returning him to the custody of his parents. The
undersigned filed a written order to that effect at the
conclusion of the hearing. Prior to that, J.L. spoke in court,
and said, “I just want to say, Your Honor, that I definitely
learned my lesson from going to Bethany for the thirty days,
and I will make an effort going to school and doing what I
need to do to make it right.”
In view of the agreed order returning J.L. home, the
undersigned asked counsel for J.L. if she would withdraw
her motion for reconsideration of the order of December
11th. She responded, “It’s our position that it’s moot.”
Notwithstanding that she understood her motion for
reconsideration to be moot, she stated that she would take
the unusual step of filing an appeal from the December 11th
order. [On January 10, 2019,] counsel for J.L. filed the
notice of appeal [and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i)].
(Trial Court Opinion, filed January 31, 2019 at 6-11) (internal citations
omitted).1
J.L. raises the following issues for our review:
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1 OCY claims this appeal is interlocutory because at the time the court
adjudicated J.L. dependent and removed him from the home, the court had
contemplated further proceedings. Nevertheless, the order on appeal
constituted a change of status for J.L., which was deemed final, when entered,
for purposes of appeal. See In re E.B., 898 A.2d 1108 (Pa.Super. 2006)
(holding adjudication of child as dependent is change of status deemed final
when entered for appeal purposes); In re Interest of M.B., 565 A.2d 804
(Pa.Super. 1989), appeal denied, 527 Pa. 601, 589 A.2d 692 (1990)
(explaining that determination of finality is not to be made merely by deciding
whether order in question has technically ended litigation; we must examine
practical consequences of order in context of statutory and regulatory scheme
governing disposition of dependent children; recognizing there are certain
crucial points of finality in dependency proceedings when appellate review is
appropriate despite fact that court might later modify earlier decisions after
conducting further review hearings).
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DID THE JUVENILE COURT COMMIT A LEGAL ERROR BY
UTILIZING THE “BEST INTERESTS” STANDARD WHEN
REMOVING A CHILD FROM HIS SAFE AND LOVING
PARENTAL HOME, AS OPPOSED TO APPLYING THE MORE
STRINGENT “CLEAR NECESSITY” STANDARD?
DID THE JUVENILE COURT ABUSE ITS DISCRETION IN
REMOVING A CHILD FROM A SAFE AND LOVING HOME TO
PLACE HIM IN A CONGREGATE CARE YOUTH SHELTER FOR
TRUANCY WHERE, AMONG OTHER THINGS, THE AGENCY
DID NOT IMPLEMENT IN-HOME OR COMMUNITY-BASED
SERVICES AFTER OPENING A FORMAL CASE AND THE
JUVENILE COURT WAS NOT PRESENTED WITH ANY
EVIDENCE REGARDING CHILD’S EDUCATIONAL NEEDS,
PSYCHOLOGICAL AND EMOTIONAL NEEDS, OR
DISABILITIES?
(J.L.’s Brief at ix).2
Preliminarily, we observe:
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, 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. …
* * *
[T]his Court will decide questions that otherwise have been
rendered moot when one or more of the following
exceptions to the mootness doctrine apply: 1) the case
involves a question of great public importance, 2) the
question presented is capable of repetition and apt to elude
appellate review, or 3) a party to the controversy will suffer
some detriment due to the decision of the trial court.
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2J.L. does not challenge the court’s adjudication of dependency. Instead, J.L.
complains solely about his removal from the home.
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In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en banc) (internal citations
and quotation marks omitted). “The concept of mootness focuses on a change
that has occurred during the length of the legal proceedings.” In re Cain,
527 Pa. 260, 263, 590 A.2d 291, 292 (1991). “If an event occurs that renders
impossible the grant of the requested relief, the issue is moot and the appeal
is subject to dismissal.” Delaware River Preservation Co., Inc. v. Miskin,
923 A.2d 1177, 1183 n.3 (Pa.Super. 2007). See also In re J.A., 107 A.3d
799 (Pa.Super. 2015) (holding order that had temporarily appointed KidsVoice
as medical guardian for child, but later reappointed mother as child’s medical
guardian, was capable of repetition and apt to evade appellate review; nothing
prevented juvenile court from again appointing KidsVoice as child’s medical
guardian; juvenile court’s statements on record suggested its decision to
appoint mother as child’s medical guardian was on trial basis; child’s best
interest persists throughout dependency case; change in status can happen
quickly in dependency cases).
Further, at all times relevant to these proceedings, the Public School
Code of 1949 defined “compulsory school age” as follows:
§ 13-1326. Definitions
“Compulsory school age” shall mean the period of a
child’s life from the time the child’s parents elect to have the
child enter school and which shall be no later than eight (8)
years of age until the child reaches seventeen (17) years of
age. The term does not include a child who holds a
certificate of graduation from a regularly accredited,
licensed, registered or approved high school.
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24 P.S. § 13-1326 (effective July 1, 2018). On June 28, 2019, the legislature
recently amended the definition of “compulsory school age” to between six
and eighteen years of age. The amendment takes effect on September 26,
2019. See H.B. 1615, 203 Gen. Assem., Reg. Sess. (Pa. 2019) (amending
definition of compulsory school age; stating Section 13-1326 will be effective
in 90 days). The amendment shall apply to academic years commencing after
the effective date. See id., Note.
Instantly, the court adjudicated J.L. as dependent and temporarily
removed him from the home on December 11, 2018. On January 8, 2019,
the court held a dispositional hearing and returned J.L. to the care of his
parents. Thus, the issue is technically moot because the court has already
granted J.L. his requested relief to be returned home. See In re Cain, supra;
In re D.A., supra; Delaware River Preservation Co., supra. Also, as of
June 2019, J.L. is 17 years old. Consequently, under the statute currently
in effect, J.L. is no longer subject to compulsory education. See 24 P.S. § 13-
1326 (effective July 1, 2018). In other words, J.L. has essentially “aged out”
under the current statute, so the issue concerning J.L.’s removal from the
home would not be capable of repetition, and the juvenile court no longer has
authority to take any action over J.L. regarding his truancy. Under the new
statute taking effect on September 26, 2019, however, J.L. might be subject
to compulsory education until he is 18 years old. If so, then the issue on
appeal could be capable of repetition, in the event the juvenile court again
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removes J.L. from his home if his truancy problems persist in the next
academic school year. The issue could similarly evade appellate review due
to the changeability of J.L.’s needs during dependency proceedings. See In
re J.A., supra. Under these circumstances, an exception to the mootness
doctrine might exist, so we elect to review the merits of his appeal. See
generally First Valley Bank v. Steinmann, 384 A.2d 949 (Pa.Super. 1978)
(explaining general principle that motions to dismiss must be considered in
light of Pennsylvania’s preference to conduct merits review).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Wendy
Demchick-Alloy we conclude J.L.’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion at 11-19) (finding: removal of J.L. from
home was “clear necessity” because he was unable to participate in and
benefit from less-restrictive alternative services already tried, and J.L. had
missed one and one-half years of school in three year period; when
caseworker sought to meet with J.L. in past to discuss truancy issues, J.L.
locked his door and refused to communicate with caseworker and stated only
that he constantly overslept and missed school bus; reasonable efforts were
made to avoid J.L.’s removal from home but those efforts were unsuccessful,
so it would have been contrary to his welfare to permit him to remain at home;
removal was intended to be temporary, not long-term placement and
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reunification of J.L. and his parents was unquestionable goal; J.L.’s parents
agreed J.L. should be removed from home; under these circumstances, short-
term removal of J.L. from home was consistent with preference for preserving
family unity; guardian ad litem (“GAL”) did not produce or seek continuance
to offer more evidence concerning J.L.’s individualized education program
(“IEP”) and education records; notably, GAL declined to speak with school
official after adjudication hearing even though school official had copy of J.L.’s
IEP and was prepared to discuss it; J.L. did not demonstrate any unique
education needs which would militate against J.L.’s temporary removal from
home; under circumstances of case, immediate short-term removal of J.L.
from his home was clearly necessary to promote J.L.’s welfare and preserve
long-term family unity). The record supports the court’s decision.
Additionally, the record confirms the court applied the appropriate “clear
necessity” standard at the time it ordered removal. At the December 11, 2018
adjudication hearing, counsel for OCY recounted how numerous prior efforts
to alleviate J.L.’s truancy had failed. Significantly, J.L. met with an OCY
caseworker and Multi-Systemic Therapist, during the two weeks before the
adjudication hearing, who stressed the importance of attending school until
the adjudication hearing. J.L. agreed he would attend school, but he did not
follow through. The court explained how J.L. was “digging [himself] a hole
that’s way deep—not too deep to get out of it, but way deep” and
“academically capable, but digging [his] heels in.” (N.T. Adjudication Hearing,
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12/11/18, at 10, 12). The court further stated: “[W]e need to do something
quickly, because if we keep doing the same thing again and again, when we
just keep sending you home, it’s not working. It’s not working.” (Id. at 13).
The record demonstrates that J.L.’s overall intransigence forced the
court to break J.L.’s pattern of evading in-home services by temporarily
removing him from the home. Although the court did not formally recite the
words “clear necessity” at the hearing, the court applied the proper standard.
Likewise, the court’s occasional use of terms like “best interests” or “welfare”
is not dispositive of whether the court used an incorrect standard, where those
terms are undoubtedly part of the overall analysis under the Juvenile Act. See
42 Pa.C.S.A. § 6301. Nothing in this record diminishes the court’s primary
focus on the clear necessity for the temporary removal of J.L., as reconciled
with the purpose of preserving family unity, or calls the court’s decision into
question. Accordingly, we affirm on the basis of the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/19
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Circulated 07/18/2019 12:29 PM
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OPINION
DEMCHICK-ALLOY, J. JANUARY 30, 2019
J.L. is a sixteen-year-old who is currently repeating the ninth grade
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outside of the juvenile court by the least restrictive alternative measures
available. By order filed December 11, 2018, the undersigned judge placed him
in a residential program to alleviate his well- entrenched truancy. A month
later, on January 8, 2019, the undersigned released J.L. back to the custody of
his parents, after which J.L. 's lawyer filed the instant appeal.
I. Claims of Error Raised on Appeal
The appellant's statement of errors complained of on appeal mixes
allegations of error with arguments in support of those allegations, hence
readers must exercise special care to distinguish one from the other. The
undersigned discerns the following claims of error, quoting appellant's
statement verbatim.
1. The trial court did not make the requisite finding that the
minor's removal from his parental home was clearly
necessary or that available alternative services would not
enable the minor to remain with his mother and father.1
2. The evidentiary record is insufficient to support a finding
that the minor's removal from his home was in his best
interest, much less clearly necessary and the agency had not
pursued available alternative services that could enable the
child to remain with the mother and father.2
3. The evidentiary record is insufficient to support the trial
court's finding that the agency made reasonable efforts to
prevent removal from the home.P
4. The evidentiary record does not support the court's
conclusion that placement into a residential facility was the
least restrictive option �nd that no less restrictive option was
available."
5. The child's due process rights under the Pennsylvania and
United States constitutions were violated because the agency
provided inadequate notice that it would be seeking the
child's removal from parental custody at the adjudication
hearing.f
6. The December 11, 2018 hearing was noticed as an
"Adjudication Hearing." In its December 11, 2018 order, the
juvenile court scheduled a "Dispositional Hearing" for
January 8, 2019. That order fails to comply with the
[Pennsylvania R]ules of [J]uvenile [C]ourt [P]rocedure, which
require a dispositional hearing to be held within twenty (20)
days of removal. 6
II. Facts
This section will first anticipate an issue regarding the use of facts
outside the record on behalf of J.L. in this appeal. Next, this section will
1 See "Concise Statement" filed by appellant on .January 10, 2019, p. 2, item one.
2 See id. at p. 2, item two.
3 See id. at p. 4, item four.
4 See id. at p. 5, item five.
s See id. at p. 3, item three.
6 See id. at p. 6, item nine. The undersigned interprets the remainder of appellant's
"Concise Statement," including the entirety of items six, seven and eight as argument
in support of the first four claims of error, rather than claims of error in themselves.
2
address unique circumstances affecting the level of deference appropriate to
the findings of fact made by the undersigned. After addressing those
preliminary matters, this section will set forth the findings of fact made by the
undersigned.
A. The facts of record do not include any expert opinion evidence
The undersigned anticipates that appellate counsel for J.L. will attempt
to buttress appellant's arguments with putative expert opinion evidence outside
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J.L. on December 19, 2018. See motion for reconsideration ,i 41 (citation to
testimony of lawyer-witness in federal legislative hearing); id. at ,i 42 (citation
to article published in periodical literature); id. (quotation from internet web
page attributed to ''professor of pediatrics"); id. at 49 (citation to periodical
article written by retired judge); see also id. at, 4 7 (out-of-context quotation
from annual report of Montgomery County Office of Children and Youth). J.L.'s
lawyer did not produce any of this unauthenticated hearsay information in
court.
Information of this nature is inadmissible as evidence unless an expert
witnesses testifies that such authorities are reports of a type reasonably relied
upon by experts in their fields in forming opinions on the subject. See Pa.R.E.
703. J.L.'s lawyer neither produced expert witness testimony nor asked for a
continuance to do so .. As a consequence, neither the undersigned nor the
appellate court has had the benefit of voir dire or cross-examination of an
3
expert witness as epistemic assurances of the veracity of the putative expert
opinion. This problem is not mitigated by the fact that counsel attached copies
of two of the cited sourc�s to the motion as exhibits. Our Supreme Court has
consistently adhered to the rule that an appellate tribunal, including itself,
may not consider expert opinions and studies never received as evidence in the
record of the lower court. Banfield v. Cortes, 631 Pa. 229, 258 n.14, 110 A.3d
155, 172 n.14 (2015)
e consideration of such evidence by this Court would be
1
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.
Therefore, if appellate counsel includes such information in J.L.'s appellate
brief, it may not be considered in the disposition of the appeal.
B. The findings of fact made by the undersigned are entitled to
deference
Of the claims of error listed above, the second and third challenge the
sufficiency of the evidentiary record in regard to legal conclusions, while the
fourth states that the record does not support a legal conclusion. These claims
ask the appellate court to determine whether the appellee, the Montgomery
County Office of Children and Youth (OCY), met its burden of production, not
persuasion. Moreover, they ask for a review of the sufficiency of the evidence
not regarding truancy or dependency, but regarding the decision to remove J.L.
from his home in response to his dependency. See N.T. December 11, 2018, p.
6 ecwe do not oppose the adjudication [of dependency] at this time. However,
we do oppose placement at this time."). In assessing these claims, the
appellate tribunal does not question the credibility of the evidence, but rather
4
accepts the veracity of all competent evidence of record insofar as the trial
judge's observations of demeanor may be relevant to credibility. See generally
In the interest of W.M., 41 A.3d 618, 622-23 (Pa. Super. Ct. 2012).
At the hearing on December 11, 2018, the solicitor produced a
"Statement of Case Facts," and offered it as Exhibit OCY-1.7 The solicitor also
produced Exhibit OCY-2, a record of J.L.'s attendance at his school in the
current academic year." His lawyer did not object to either exhibit on the basis
in the exhibits. The solicitor moved the exhibits into evidence without any
objection by counsel for J.L., notwithstanding that the OCY case worker and a
school official, Steve Duff, were present in court and the solicitor could have
produced their testimony if counsel for J.L. had made a contemporaneous
challenge to the veracity of the fads in the exhibits. Likewise, at the hearing
on January 8, 2019, the solicitor produced a Statement of Case Facts and
offered and moved it into evidence as Exhibit OCY-19 without any objection of
any kind from counsel for J.L. Although J.L. had no legal obligation to produce
evidence on his own behalf because OCY bears the burdens of production and
persuasion throughout these proceedings, it is legally significant to the
7 Hereinafter this opinion will refer to the document as Statement of Case Facts,
December 11, 2018, to distinguish it from the Statement of Case facts moved into
evidence at the hearing on January 8, 2011. See infra n.10 and text accompanying
note.
8 Hereinafter this opinion will refer to the document as Exhibit OCY-2.
9 Hereinafter this opinion will refer to the document as Statement of Case Facts,
January 8, 2019.
5
determination of the veracity of the averments of fact in Exhibit OCY-1 that the
record includes no evidence that challenged them. In the same sense, it is
significant that the averments of fact went unchallenged by contemporaneous
argument from J.L.'s lawyer.
Additionally, the undersigned observed the demeanors of J.L. 's parents
(who agreed with placement, see N.T. December 11, 2018, p. 9) and his OCY
case worker, and their reactions indicated agreement with the material facts
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disagreement with the statements of facts except for one: whether bullying
remained a reason he refused to attend school. Id. at 9-10. (The undersigned
refrained from deciding whether bullying remains a problem for J.L., pending
the production of additional relevant evidence at future hearings. Id. at 10.)10
Notwithstanding that the evidence of record consists of documents rather than
the testimony of witnesses, these circumstances warrant deference to the
factual findings of the undersigned in this appeal. See W.M., supra (appellate
court accepts the veracity of all competent evidence of record insofar as the
trial judge's observations of demeanor may be relevant to credibility).
C. Findings of fact
Turning to the facts of record, J. L. has a long history of truancy, with
attendance issues beginning three years ago, when he was in the seventh
10On December 21, 2018, J.L. met with his OCY case worker and told her that he had
been bullied in the seventh grade, but denied having been bullied within the past few
years. Statement of Case Facts, January 8, 2019, p. 3.
6
grade. Order of December 11, 2018, p. 1. Now, in the 2018-2019 academic
year, he is sixteen years old but is only in the ninth grade, and is currently
enrolled in that grade for the second year in a row. Id. In three years, J.L. lost
one and one-half years of education due to his truancy while the school district
and OCY attempted to treat it outside of dependency proceedings. This was the
single most important fact regarding the decision facing the undersigned on
December 11th: whether to briefly remove J.L. from his home while developing
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options that had proved unsuccessful for three years.
The facts of record begin with J.L.'s 2017-2018 academic year, when his
school notified OCY that he was habitually truant. Statement of Case Facts,
December 11, 2018. He had accumulated twenty-two unexcused absences by
April of 2018. Id. The OCY case worker did not file a dependency petition at
that time, but instead exercised her judgment as to the "least restrictive option"
(to use the words of appellant's counsel) and chose to employ the "alternative
services" (again, in appellant's words) of the Academy Truancy Diversion
Program. Id. Even with the deployment of that alternative service in April of
2018, J.L. accumulated a total of 44 unexcused absences for the 2017-2018
academic year. Id.
J.L.'s 2018-2019 academic year began on September 4, 2018, yet by the
reckoning of the undersigned he accumulated 31 unexcused absences by the
end of October. See Exhibit OCY-2, moved into evidence December 11, 2018.
7
Nonetheless, after J.L.'s school notified OCY about his ongoing truancy in
October, 2018, the OCY case worker again chose to divert his case to the
Academy Truancy Diversion. Statement of Case Facts, December 11, 2018.
The OCY case worker did not formally open a case until November 5, 2018,
after the Academy case worker reported that J. L. would not respond, except to
lock his bedroom door and refuse to open it when the case worker would arrive
at his home in the morning to personally support him getting to school. Id.;
---- - - · - -- - ---erde r-of-Be eember-l-l-;----2-B-1---8,---p:-l-�---· -- -·---
On November 14, 2018, the OCY case worker met with J.L. and his
parents at their home. Id. The case worker gave J.L. goals that she expected
him to meet, and although he appeared cooperative, he failed to explain why he
refused to attend school. Id. The school attendance record shows that J.L.
was absent every day from November 14th through November 28th, see Exhibit
OCY-2, when the OCY case worker and a Multi-Systemic Therapist met with
J.L. and his parents at his home, see Statement of Facts, December 11, 2018.
At that time, the case worker notified J.L. and his parents that she had filed a
dependency petition and that a hearing on the petition would be held on
December 11th. Id. Once again, J .L. agreed to attend school. Id. Once again,
however, he was unable to stand by his intention, even knowing that he would
be appearing court-shortly. Exhibit OCY-2 shows an unbroken record of 48
unexcused absences from November 29th through December 5, 2018.
On December 6, 2018, the OCY case worker again met with J.L. and his
8
parents in their home to discuss his ongoing truancy, and he proffered the
excuse that he overslept and missed the school bus because he is tired in the
morning. Statement of Facts, December 11, 2018. His case worker
encouraged him to attend school in the few days remaining before the hearing
on the dependency petition, but he could not bring himself attend a single day,
even as his date in court loomed less than a week away. Id.
The undersigned received all of the foregoing facts at the hearing on
--·---�-----------·· ·--�·-rte-cembe�r11;·-2,cJ-1-s-an-d-found-themLcrbe-cte·ar-an-d-convincing·.-�Y-ears----of----------------�--��
truancy indicated that J.L.'s parents did not know what to do to support his
attendance at school. N.T. December 11, 2018, p. 10. Their palpable anxiety,
as witnessed by the undersigned, evidenced by their furrowed brows, reinforced
that conclusion. See id. at 12. J.L. needed immediate intervention because of
the amount of schooling he had lost, and intervention by placement was
preferable because none of the interventions in the home had worked. Id. at
12-13. J.L.'s parents agreed with placement. Id. at 9. Although the need for
removal from home was obvious to the undersigned and J.L.'s parents, the
undersigned believed a short-term program to alleviate J.L.'s well-entrenched
truancy would be sufficient. See id. at 11 ("I prefer not to do long-term
placement for you .... "). The recommended Multi-Systemic Therapy, which had
just begun, id. at 7-Si could be continued while he was in placement, id. at 10.
The undersigned found the foregoing facts to be clear and convincing evidence
that reasonable efforts were made to prevent the need for removing J. L. from
9
his home, and that it would be contrary to J.L.'s welfare to permit him to
remain at home. See Order ofAdjudication, December 11, 2018, p. 2; compare
42 Pa.C.S. § 6351(b)(l)-(5).
On December 19, 2018, J.L.'s lawyer filed a motion for reconsideration of
the order of December 11th. While that motion was pending,. the staff at
Bethany Children's Home gave J.L. a furlough from December 24th through
the 26th, and J.L. celebrated Christmas at home with his family. Statement of
an order scheduling a hearing on the motion for reconsideration
simultaneously with the dispositional hearing on January 8th. At the hearing,
OCY, J.L.'s parents and J.L. agreed to an order returning him to the custody of
his parents. N.T. January 8, 2019, pp. 4, 6, 17-18. The undersigned filed a
written order to that effect at the conclusion of the hearing. Prior to that, J.L.
spoke in court, and said, "I just want to say, Your Honor, that I definitely
learned my lesson from going to Bethany for the thirty days, and I will make an
effort going to school and doing what I need to do to make it right." Id. at 13.
In view of the agreed order returning J.L. home, the undersigned asked
counsel for J.L. if she would withdraw her motion for reconsideration of the
order of December ll th. Id. at 19. She responded, "It's our position that it's
moot." Id. Notwithstanding that she understood her motion for
reconsideration to be; moot, she stated that she would take the unusual step of
filing an appeal from the December l l th order. Id.; see also id. at 20-21. Two
10
days later, counsel for J.L. filed the notice of appeal.
III. Discussion
A. The evidence of record justified the decision to remove J.L. from his
home
All of the first four claims of error pertain to the same basic issue:
whether the facts of record provide legal justification for the decision to remove
J.L. from his home.11 J.L.'s lawyer conceded that the evidence of record was
clear and convincing proof of dependency based on his habitual truancy. See
N.T. December 11, 2018, p. 6. ("We do not oppose the adjudication [of
dependency] at this time."). After a proper determination that a child is
dependent, the judge of the juvenile court may order him removed from the
family home only if the evidence demonstrates a clear necessity for removal. In
the Interest of A.L., 779 A.2d 1172, 1175 (Pa. Super. Ct. 2001). The benefits of
removing the child from his parents' custody must be reconciled with the
"paramount purpose" of preserving family unity. Id. This section will explain
why the undisputed facts of record indicate that the brief removal of J.L. from
his parents' custody was clearly necessary and easily reconciled with the
normal preference for family unity.
Removal was necessary because of the confluence of two circumstances.
First, nearly three years' experience supported the conclusion that J.L. was
unable to participate in, and benefit from, the less-restrictive alternative
services that were tried first. Second, at age sixteen, he had lost one and one-
11 Concise Statement, p" 1, items one and two; p. 4 item four; and p. 5, item five.
11
half years of his education, thus creating an immediate need for effective
action. Regarding the first circumstance, J.L. was diverted from dependency
proceedings to alternative services in the 2017-2018 academic year.rand again
from September to November of the current academic year, but he was still
unable to bring himself to attend school, and his truancy continued unabated.
He locked his bedroom door and refused to communicate with the Academy
Truancy Division case worker. When his OCY case worker met with him at
home and tried to get him to tell her why he refused to go to school, he made a
sad excuse that he constantly overslept and missed the school bus. These
facts were clear and convincing evidence that reasonable efforts were made to
prevent removal ofJ.L. from his home, and that it would have been contrary to
his welfare to permit him to remain at home. See 42 Pa.C.S. § 6351(b)
(establishing mandatory pre-placement findings by juvenile court judge).
In this case, the undersigned stated on the record that the plan was
never long-term placement, N.T. December 11, 2018, p. 11, so reunification of
the family after a brief placement was never in doubt. J .L. 's parents agreed at
the December 11th hearing that he should be removed from their home. Id. at
9. Their demeanor was not one of animosity toward their son, but anxiety for
his wellbeing. They appeared to be worried sick over his truancy. Id. at 12.
· Under these circumstances, a short-term removal of J .L. from his family's
home was easily reconciled with the normal preference for preserving family
unity.
12
Judges of the juvenile courts are given broad discretion in meeting the
goal of fashioning a disposition best suited to the protection and physical,
mental, and moral welfare of dependent children. In the Interest of S.M., 614
A.2d 312, 315 (Pa. Super. Ct. 1992). The foregoing discussion suggests that
the order appealed from cannot be characterized as an abuse of discretion.
Empirical confirmation of this conclusion comes from J.L.'s own statement in
court, that he had learned from his thirty-day placement and was committed to
doing his part to attend school. N.T. January 8, 2019, p. 13.
In light of the foregoing standard of review, the arguments raised by
counsel for J.L. are unpersuasive. The fact that the one-month placement
coincided with the winter vacation at J.L.'s school district has little significance
because the purpose of immediate placement was not just to enforce
attendance when school was in session, but to place him, without further
delay, in an environment where he could not lock the door to his bedroom or
otherwise hide from therapeutic outreach, such as the Multi Systemic Therapy.
The necessity and efficacy of placing him in a therapeutic environment is
supported by his statement in court that he was motivated to begin confronting
the problems underlying his truancy,
The fact that Multi-Systemic Therapy had not begun in earnest when J.L.
was removed from his hornet- is likewise of little significance. Multi-Systemic
Therapy-could be, and was, conducted while J.L. was in placement, and it was
12 See Concise Statement, p. 4, item four.
13
extremely unlikely to have been effectuated in the absence of placement. The
young man who locked his door and refused to speak with case workers, who
at best offered oversleeping as an excuse instead of being open about his
aversion to school, was one who had very little chance of succeeding in any
form of therapy. In contrast, the young man who said, "I will make an effort
going to school and doing what I need to" is one who may be ready to do the
difficult, earnest work required in order for therapy to be effective.
The alleged insufficiency of the educational determination and family
finding efforts in the Case Statement of Facts of December 11th 13 are also of
little significance. The Juvenile Act does not require that the juvenile court
judge make such findings when making orders of adjudication or disposition in
dependency proceedings. See 42 Pa.C.S. §§ 6341(a), (c), (d), 6351(b). The order
of adjudication of December 11, 2018 complied with the requirement of
Pa.R.J.C.P. l 149(A) regarding family finding. Given the purpose of family
finding, see 62 P.S. § 1301, and the fact that the parents' agreement to
placement indicated that they and J .L. were not in need of extended family
support, it was sufficient that the order of adjudication directed OCY to
continue to engage in family finding. See Order of December 11, 2018, p. 3;
compare62 P.S. § 1302.2(a)(l) (stating grounds for discontinuing family finding
in circumstances similar to these). Regarding the educational concerns, the
order placed J. L. 's individualized educational needs in the hands of the
13 See Concise Statement, p. 5, item six and p. 6, item eight.
14
,.
Montgomery County Intermediate Unit and directed further assessment of his
needs. Id.; see also N.T. January 8, 2019, pp. 12-13 (counsel criticizing results
of psychological evaluation conducted while in placement).
Appellant's most complicated argument is also the least-persuasive: that
removal was premature and without an evidentiary foundation because J.L.
has an Individualized Educational Program (IEP).14 Counsel for J.L. conceded
on December 11th that the evidence of record was sufficient to support the
adjudication of dependency for truancy, even though it included no evidence of
the disability or disabilities that qualified J.L. for an IEP. That concession
reflects the applicable legal rule: the agency that brings a truancy petition
bears the burden of producing clear and convincing evidence that the student's
absence from school was without legal justification; and testimony and
attendance records establishing that the school received no excuse from the
student or parents for the absences, or that the proffered excuse is invalid, are
sufficient to raise an inference that the absences are unjustified. In the Interest
of C.M.T., 861 A.2d 348, 354 (Pa. Super. Ct. 2004). After that, the parent or
minor child may produce evidence relevant to rebutting the inference. Id.
Counsel for J.L. provides no reason why the same evidentiary process should
not also apply to the dispute between the parties as to the remedy for the
truancy, yet that is the hidden premise of counsel's argument regarding IEP-
related evidence.
14 See Concise Statement, p. 4, item four and p. 5, item six; see also pp. 3-4, item three
(referring to need for time to analyze records and consult 'subject-matter experts].
15
The actions, or inactions, of counsel for J.L. at the hearing on December
11th suggest that this argument was developed in hindsight. At the hearing,
J.L.'s lawyer never stated that she lacked adequate information about the IEP
or J.L.'s disabilities. See N.T. December 11, 2018, pp. 7, 8. Neither did
counsel ask for a continuance to obtain his educational records. Id.; see 42
Pa.C.S. § 6341(e) (court may continue hearing on motion of a party to receive
evidence relevant to disposition). After the adjudication hearing, J.L.'s lawyer
declined to speak to Steve Duff, the school official who had a copy of the IEP on
his person and was prepared to discuss it. See N.T. January 8, 2019, pp. 14-
15. In the motion for reconsideration, and at the subsequent hearing on
January 8th, counsel for J.L. speculated that the school district was not
meeting his unique educational needs, and the undersigned had to urge J.L.'s
lawyer to take the obvious step of meeting with Mr. Duff after the hearing and
obtaining a copy of the IEP from him. Motion for Reconsideration, 1 39; N.T.
January 8, 2019, pp. 13-16.
J.L.'s lawyer could have gained some of his IEP-related information
simply by interviewing him and his parents before the hearing. J.L.'s parents
were present in court on December 11th, and they would have known why
their son had an IEP, whether it adequately addressed his individual needs,
and whether his school was complying with its terms. One might infer that
J. L. 's educational disabilities did riot ft\i t i!'o:t"e.. against removal when his father
stated at the hearing that he agreed with the decision to remove J.L. from the
16
family home. Consequently, it is significant that on December 11th his lawyer
did not ask for a continuance to obtain his educational records and did not
speak to Steve Duff about them after the hearing.
B. J.L. and his lawyer received adequate advance notice that OCY
sought to remove him from his home
J. L. contends that his "due process rights under the Pennsylvania and
United States constitutions were violated because [OCY] provided inadequate
notice that it would be seeking the child's removal from paternal custody at the
adjudication hearing." This section will address the arguments made in
support of this claim and show that J. L. and his lawyer had adequate notice of
OCY's desire to remove him from his family's home.
J. L. argues that the dependency petition filed on November 21, 2018
requested that J.L. "be adjudicated dependent and permitted to remain in the
home with Mother and Father." Petition, p. 5. The petitioner was not,
however, required to plead the remedy sought. See Pa.R.J.C.P. 1330.B.
(prescribing contents of dependency petition). Moreover, counsel for J.L. would
have observed that several of the paragraphs in the petition were made in
anticipation of the possibility that the facts might warrant an order removing
him from the home. See petition, pp. 3-4. Additionally, as J.L.'s lawyer noted
in the Concise Statement, on the Friday before the hearing on Tuesday,
December, 11th, she received a copy of OCY's proposed Statement of Case Facts
recommending that the undersigned grant OCY legal and physical custody of
J.L. See Concise Statement, pp. 3-4. Nonetheless, counsel did not ask for a
17
continuance. The official notice of the December 11th hearing described it as
an adjudicatory hearing, not a dispositional hearing, but counsel for J.L. would
have known that the judge of the juvenile court may proceed immediately to a
dispositional hearing from an adjudicatory hearing. 42 Pa.C.S. § 6341(c).
When the solicitor for OCY asked for an order placing J.L. in a shelter at
the beginning of the hearing of December 11, 2018, J. L. 's lawyer had sufficient
advance notice to reply, "We do not oppose the adjudication [of dependency] at
this time. However, we do oppose placement at this time." N.T. December 11,
2018, p. 6. J.L.'s lawyer did not state that she lacked adequate notice to
prepare an effective response to the solicitor's request for an order placing J.L.
in shelter care. Id.; see also id. at 14-15. Instead, she made a cogent
argument that J. L. 's parents were covered by a good health care plan that
enabled them to obtain psychological and psychiatric evaluations, and that the
undersigned should allow him to remain at home receiving Multi-Systemic
Therapy until such assessments had been completed. Id. at 7-8.
Counsel for J.L. also argues that OCY failed to provide her with records,
such as educational records, "that would have informed a reasonable analysis
regarding the needs of the child and any possible ... defenses to removal from
the home." In section III.A., supra, the undersigned noted that counsel for J.L.
failed to take advantage of opportunities to obtain educational records and
.facts from.Steve Duff, J.L.'s parents and J.L. himself. She could have asked for
a continuance while she pursued discovery, see 42 Pa.C.S. § 6341(e) and
18
Pa.R.J.C.P. 1340, but she declined to do so.
Counsel complains that even if she had been able to obtain records, she
would also have required time to analyze them, but this complaint returns the
focus to the heart of this matter. As discussed in section III.A., supra, J.L.'s
loss of one and one-half years of his education over the past three years
created an immediate need for placement because less-restrictive alternative
means had failed. Immediate, short-term removal from the home was not just
in his best interests, it was clearly necessary for his welfare. That was not only
the opinion of the undersigned but also J.L.'s parents. J.L.'s need for time to
obtain and analyze records did not outweigh the need for a prompt hearing
and, as the evidence showed, prompt placement.
C. The undersigned did not err by scheduling the dispositional hearing
more than twenty days after the adjudication hearing
If a juvenile judge removes a child from the home after adjudicating him
dependent, the Juvenile Act, 42 Pa.C.S. § 6304(c) and the Pennsylvania Rules
. of Juvenile Court Procedure, Pa.R.J.C.P. 1510, require a dispositional hearing
to be held within twenty days. In this case, that would have been no later than
December 31, 2018. Counsel for J.L. complains that the undersigned erred by
"failjing] to comply with the [Pennsylvania R]ules of [J]uvenile [C]ourt
[P]rocedure, which require a dispositional hearing to be held within twenty (20)
days of removal."
At the conclusion of the adjudication hearing on December 11, 2018,
counsel for OCY proposed holding the dispositional hearing on December 27,
19
2018. N.T. December 11, 2018, p. 15. The undersigned responded that she
would not be on duty on that date, and instead proposed to hold the
dispositional hearing on January 8, 2019. Id. Neither the solicitor nor J.L.'s
lawyer objected. Id. The undersigned interpreted the lack of objection from
counsel as an agreement to that date. See id. (undersigned stating "All right"
after having heard no objection by counsel, and proceedings concluding
without objection).
The undersigned believed counsel agreed, or at least acquiesced, to the
January 8th date because the alternative would have been to hold the
dispositional hearing before a different judge who would not have been familiar
with the case. The undersigned inferred that counsel for J.L. preferred to have
a judge familiar with the case preside over the dispositional hearing even if that
meant holding the hearing approximately twenty-eight days after the
adjudication hearing. Counsel has argued in this appeal that she needed more
time prior to disposition to obtain and analyze educational and other records
relevant to disposition, hence one might also infer that she did not object to the
January 8th date because it inured to the benefit of J. L. Given the apparent
acquiescence of counsel for J. L. at the time the dispositional hearing was
scheduled, the undersigned suggests that it was not an abuse of discretion to
schedule the dispositional hearing for January 8, 2019.
Although section 6341 of the Juvenile Act requires that the dispositional
hearing take place no more than twenty days after entry of an adjudication
20
order removing a dependent child from his home, the same section also states,
"The court's failure to comply the time limitations stated in this section shall
not be grounds for discharging the child or dismissing the proceeding." 42
Pa.C.S. § 634l(a).15 The Supreme Court of Pennsylvania has not adopted a
rule of court that suspends this statutory text in whole or in part. Neither has
it been suspended in whole or part by decisional law of a Pennsylvania
appellate court. Therefore, it operates as a limitation on the actions of judges
when adjudicating claims such as the one brought on behalf of J.L. Even if
J.L. remained in placement at this time, the appellate court could not
discharge him from placement or dismiss the dependency proceedings solely as
a remedy for the alleged violation of his procedural right to a dispositional
hearing within twenty days of adjudication. The only remedy for that, if it
could be called one, would be some sort of advisory opinion as to what the
proper course of action would have been. Such an opinion would be justified
only by an error of law or abuse of discretion, not a mere difference of opinion
as to the better alternative. "As has been often stated, an abuse of discretion
does not result merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest unreasonableness, partiality,
1 s The quoted text in subsection 6341 (a) refers to plural time limitations, not a single
time limitation. Therefore, the text does not refer merely to the seven-day time
limitation established by subsection 6341 (a) itself, but all four of the time limitations
established by section 6341. See 42 Pa.C.S. § 634l(b) (establishing two additional time
limitations for delinquency proceedings); 42 Pa.C.S. § 634l(c) (establishing time
limitation at issue}.
21
prejudice, bias, or ill-will." In the Interest of C.MC., 140 A.3d 699, 704 (Pa.
Super. Ct. 2016) (citations omitted).
CONCLUSION
In view of the foregoing opinion, the undersigned respectfully suggests
that the claims of error on appeal lack merit and the matter should be
remanded to this court for further review.
BY THE COURT,
Wendy Dernchick-Alloy, Judge
Copy of above sent on /
�ow,
kt) l·a to:
Lee Awbrey, A.P.D. and A.P.D; Office of the Public Defender;
by inter-office mail
Eric Cox, Assistant County Solicitor; by inter-office mail
Bruce Pancio, Esquire; Walsh Pancio LLC; 2028 N. Broad Street; Lansdale, PA
19446; by first-class mail
Damien Brewster, Esquire; Keenan Ciccito Associates LLP; 376 E. Main Street;
Collegeville, PA 19426; by first-class mail
22