In the Interest of: M.D. & Z.F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.D. AND : IN THE SUPERIOR COURT OF
Z.F., MINORS : PENNSYLVANIA
:
:
APPEAL OF: B.F. AND A.D. :
:
:
:
: No. 1523 MDA 2018
Appeal from the Dispositional Order Entered August 27, 2018
In the Court of Common Pleas of Schuylkill County Juvenile Division at
No(s): CP-54-DP-0000200-2018,
CP-54-DP-0000323-2015
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 04, 2019
B.F. (“Father”) and A.D. (“Mother”) (collectively “Parents”) appeal, pro
se, from the order adjudicating M.D. (d.o.b. 1/27/08) and Z.F. (d.o.b.
2/16/17) (collectively “Children”) to be dependent. We conclude that the
instant appeal is moot. Therefore, we dismiss this appeal.
The dependency petitions here at issue were filed by the Schuylkill
County Children and Youth Services (“Agency”) in July 2018. The Agency
contends that they provided proper notice to Parents, including notification
regarding their right to counsel. The court continued the initial adjudicatory
hearing specifically to allow Father to obtain counsel. See Tr. Ct. Order,
8/8/18. After a further continuance due to apparent flooding, the trial court
ultimately conducted an adjudicatory hearing in August 2018.
* Retired Senior Judge assigned to the Superior Court.
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At the adjudicatory hearing, the trial court heard extensive testimony
regarding continual concerns about the medical conditions of the Children,
Parents’ drug and alcohol issues, the lack of stable housing, and conflict
among the parties with co-parenting responsibilities. Following the August
2018 hearing, the trial court found the Children to be dependent and ordered
services for the family, but did not remove the Children from the home.
Parents filed the instant timely appeal1 and the trial court issued a responsive
Pa.R.A.P. 1925(b) opinion.
However, because Parents were uncooperative and unwilling to receive
services, especially regarding their substance abuse issues, the Agency filed
a Shelter Care Application. The court held a hearing at which Parents were
represented by counsel and, in September 2018, issued a new and more
restrictive order, which once again found the Children to be dependent.
However, this time, the court removed the Children from Parents’ physical
custody. As the trial court noted, the September 2018 order is now the
operative order in this case. Indeed, there have been two placement hearings
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1 Parents filed a single notice of appeal containing multiple docket numbers
from the court of common pleas in violation of Pa.R.A.P. 341. See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that
quashal is required where litigants fail to file separate notices of appeal from
an order resolving issues on more than one docket number). Subsequently,
this Court in In the Matter of: M.P., 204 A.3d 976, 981 (Pa.Super. 2019),
recognizing that previous decisional law may have been unclear, declined to
quash an involuntary termination case based on noncompliance with Rule 341.
However, Court in M.P. announced that in the future, it would quash all
noncompliant appeals. Id. at 986. Thus, because Parents filed the instant
notice of appeal in September 2018, prior to this Court’s decision in M.P. in
February 2019, we will not quash this appeal.
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since the entry of the September 2018 order, at which Parents declined to
appear and after which the trial court permitted Parents’ counsel to withdraw.
Hence, the Agency filed an application in this Court to dismiss Parents’ appeal
on mootness grounds. This Court denied the application without prejudice to
the Agency’s re-raising mootness in its merits brief, which the Agency has
done.
Before we addressed mootness or any other aspect of the merits
briefing, we remanded to the trial court for clarification regarding Parents’
appearing at the August 2018 hearing without counsel. We did so because
there was no explanation on the record as to when or how either parent waived
the right to counsel. See 42 Pa.C.S.A. § 6337 (“If a party other than a child
appears without counsel the court shall ascertain whether he knows of his
right thereto and to be provided with counsel by the court if applicable.”) The
trial court issued a comprehensive responsive opinion (“Responsive Opinion”),
and we now conclude that the trial court acted properly.
In its Responsive Opinion, the trial court explained that significant
concerns regarding the Children’s safety were raised during the first
dependency hearing.2 Although the court continued the hearing so Father
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2 At the hearing, grandmother, C.K. expressed concerns about alleged
mismanagement by Parents of M.D.’s medical condition. C.K. explained that
she had twice been contacted by school districts that M.D. had to be
hospitalized because he had gone into insulin shock at school. C.K. responded
to the hospital on both occasions as Parents could not be located at the time.
C.K. also expressed concern regarding her belief that M.D.’s medical coverage
had lapsed. Responsive Opinion at 2.
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could obtain private counsel on behalf of himself and Mother, the court made
it abundantly clear that due to the serious nature of the issues for Children, it
would not grant any additional continuances. It especially clarified that it was
the parties’ responsibility either to engage private counsel, as Father indicated
he intended, or to obtain appointed counsel, as mandated by law. N.T., 8/6/18
at 4; 7-8. Further, in the Responsive Opinion, the court aptly noted that the
Adjudicatory Summons, issued individually to each Parent, properly explained
the parties’ right to counsel and set forth the proper procedure for procuring
appointed counsel. Responsive Opinion at 1. It specifically stated that if the
party did not contact the Agency, by July 27, 2018, then “it will be assumed
that you do not wish to apply for court-appointed counsel.” Id.
Thus, the court took proper steps to ensure that Parents were aware of
their right to counsel, and Parents effectively waived that right by failing to
take the necessary steps to obtain counsel by the August 2018 hearing. See
In re S.U., 204 A.3d 949, 962 (Pa.Super. 2019) (en banc) (holding “where a
parent has been given proper notice of an adjudicatory hearing and of the
parent’s right to counsel, the juvenile court need not delay proceedings further
to conduct an in-person colloquy of a parent’s right to counsel”).
Next we consider whether the instant appeal is moot. In, In Re D.A.,
801 A.2d 614 (Pa.Super. 2002) (en banc), this Court explained the mootness
doctrine as follows:
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.
In re Duran, 769 A.2d 497 (Pa.Super. 2001). “An issue can
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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 re Cain, [ ] 590 A.2d 291,
292 ([Pa.]1991). In that case, an opinion of this Court is rendered
advisory in nature. Jefferson Bank v. Newton Associates, [ ],
686 A.2d 834 ([Pa.Super.] 1996). “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.” Johnson v. Martofel, [797 A.2d 943,
946 (Pa.Super. 2002)]; In re T.J., 699 A.2d 1311 (Pa.Super.
1997).
***
Nevertheless, this 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. Erie Insurance Exchange v. Claypoole, [ ] 673 A.2d
348 (Pa.Super. 1996); Commonwealth v. Smith, [ ] 486 A.2d
445 (Pa.Super. 1984).
In Re D.A., 801 A.2d at 616.
In this case, the dependency order entered on September 24, 2018,
which Parents have not appealed, has rendered the instant order, entered on
August 27, 2018, moot. While the August order did adjudicate the Children to
be dependent, the September order also concluded that the Children were
dependent, after even more findings regarding Parents actions after the entry
of the August order, and moreover took the additional step of removing
physical custody of the Children from Parents. Thus, the intervening
September order rendered the August order here at issue moot because even
if this Court were to reverse the August order, the September order, which
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also adjudicated the Children to be dependent and removed the Children from
Parents’ custody would remain in effect.
Thus, due to intervening events, this Court cannot render a decision on
the August dependency order which would have any legal effect on the rights
of the parties and therefore the order is moot. See In Re D.A., 801 A.2d at
616. Accordingly, because we deem the order at issue to be moot and because
we do not conclude that any exception to the mootness doctrine applies, we
dismiss Parents’ instant appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/04/2019
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