In the Int. of: B.R., Appeal of: D.R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: B.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.R., FATHER :
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: No. 292 EDA 2023
Appeal from the Order Entered January 17, 2023
In the Court of Common Pleas of Monroe County Civil Division at No(s):
CP-45-DP-0000038-2022
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JULY 28, 2023
Appellant, D.R. (“Father”), appeals from the January 17, 2023 orders
entered in the Monroe County Court of Common Pleas that denied Father’s
Motion to Enforce a Subpoena and declined to impose sanctions or attorney’s
fees upon the Monroe County Children and Youth Agency (“the Agency”).
Upon review, we affirm.
The relevant factual and procedural history is as follows. On April 22,
2022, the Agency received allegations that Father physically abused his
adoptive son, eight-year-old B.R. (“Child”), which prompted the Agency to
obtain emergency custody of Child and place him in foster care pending
investigation of the allegations. On May 4, 2022, the trial court adjudicated
Child dependent and ordered Child to remain in foster care pending the Agency
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* Former Justice specially assigned to the Superior Court.
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and police investigations. Ultimately, the Agency determined the allegations
to be unfounded and the Stroud Area Regional Police Department declined to
press charges. Child returned home on June 23, 2022. On August 26, 2022,
the trial court issued an order for termination of court supervision, discharged
the Agency’s temporary legal and physical custody of Child, and dismissed the
case.
On August 29, 2022, Father served a subpoena upon the Agency,
ordering the Agency to “provide any and all documents relating to [Child’s]
case including, CAC interview, risk assessments reports, [and] service plans”
within 14 days. Order, 8/29/22.
On September 7, 2022, Father filed a motion requesting that the trial
court order the Agency to terminate all Agency supervisory services and
provide Father with a copy of the risk assessment report. On September 22,
2022, Father again motioned the court to terminate Agency services, enforce
the subpoena, and sanction the Agency for failure to comply with both the
August 29, 2022 subpoena and the August 26, 2022 order terminating court-
ordered services.
The trial court held a hearing on both motions. The court heard
testimony from Father; Shenika Wright, Director of Foster Care for Access
Services foster care agency; and Michael Perez, Agency Supervisor. The trial
court credited Mr. Perez’s testimony that 1) the Agency did not provide risk
assessment reports to families because they were confidential and 2) the
Agency often provides ongoing supervisory services to families after court-
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ordered services are terminated because the Agency policy is to have a case
open for six months even if it is discharged from court. See Trial Ct. Op., filed
3/8/23, at 4, 6. Accordingly, the trial court denied Father’s motions.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the court err when they did not allow [Father] to call the
Attorney Solicitor as a witness?
2. Did the court err when they did not order the Agency to comply
with a court ordered subpoena?
3. Did the court err when they did not order the Agency to provide
the risk assessment report?
4. Did the court err when they did not sanction the Agency for not
terminating services despite a court order?
5. Did the court err when they did not order attorney’s fees to
[Father]?
Father’s Br. at 5 (some capitalization altered).
Father first avers that the trial court erred when it denied his request to
call the Agency’s counsel, Elizabeth Weekes, Esq., as a witness under cross-
examination during the motions hearing. Id. at 12. Father argues that
Attorney Weekes included false averments in her responsive legal pleadings,
and he should have been able to question Attorney Weekes “as to the
inconsistencies of what was written in her pleading, what was testified to at
the hearing, and what was actually happening in regard to the case.” Id. at
14-15. Father failed to preserve this issue.
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It is axiomatic that to preserve an issue for appellate review, a party
must make a timely and specific objection before the trial court at the earliest
possible stage of the proceedings. In re J.A., 107 A.3d 799, 820 (Pa. Super.
2015). This Court “will not consider a claim which was not called to the trial
court's attention at a time when any error committed could have been
corrected.” Id. (citation omitted).
As the trial court observed, when the trial court ruled that it was
inappropriate to call opposing party counsel as a witness, “Father’s attorney
did not object to the [c]ourt’s ruling but, rather, proceeded to call a different
witness to testify.” Trial Ct. Op. at 3. Upon review, we agree that Father
failed to object in a timely and specific manner and, thus, failed to preserve
the issue for our review.
In his next two issues, Father contends that the trial court erred when
it did not order the Agency to comply with his subpoena and provide the risk
assessment report to him. Father’s Br. at 15. To support his argument, Father
cites boilerplate caselaw and Rules of Civil Procedure regarding subpoenas
generally, without explaining whether he is entitled to this document pursuant
to the Juvenile Act, 42 Pa.C.S. §§ 6301-6388, the Child Protective Services
Law (“CPSL”), 23 Pa.C.S. §§ 6301-6388, or the Rules of Juvenile Court
Procedure (“Juvenile Rules”), Pa.R.J.C.P. 1100-1800, which contain special
provisions regarding subpoenas and/or the confidentiality of documents in
cases regarding children. For example, our Supreme Court has explained that
the CPSL mandates the confidentiality of information of child abuse reports
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and related information, “with the release of information provided only to
certain listed entities in specifically defined circumstances.” J.F. v. Dep't of
Human Servs., 245 A.3d 658, 670 (Pa. 2021) (citing Pa.C.S. § 6340(a)).
It is well-settled that the argument portion of an appellate brief must be
developed with citation to the record and relevant authority. Pa.R.A.P
2119(a)-(c). As this Court has made clear, we “will not act as counsel[.]”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). “We shall
not develop an argument for an appellant, nor shall we scour the record to
find evidence to support an argument[.]” Milby v. Pote, 189 A.3d 1065,
1079 (Pa. Super. 2018). Moreover, it is not the role of this Court to develop
an appellant’s argument where the brief provides mere cursory legal
discussion. Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).
Finally, when defects in a brief impede our ability to conduct meaningful
appellate review, we may find certain issues to be waived. Hardy, 918 A.2d
at 771.
Father’s failure to discuss the interplay between his requested
documents, the Juvenile Act, the CPSL, and the Juvenile Rules fatally hampers
our ability to provide meaningful appellate review of this issue. In his brief to
this Court, Father fails to explain what a risk assessment report is, whether it
is confidential, whether an exception applies, and whether a subpoena is the
appropriate legal mechanism to view a risk assessment report. Without more,
this Court is unable to effectuate meaningful appellate review. Accordingly,
these issues are waived.
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In his final two issues, Father avers that the trial court erred when it
failed to order to the Agency to pay Father’s attorney’s fees. Father’s Br. At
18. Father argues that the trial court should have sanctioned the Agency for
acting in bad faith when the Agency failed to provide Father with requested
documents and “deliberately and blatantly forc[ed] [Father] to comply with
their home visits and services after the [t]rial [c]ourt issued an order
terminating such.” Id. at 22-23.
“We review a trial court’s decision to grant or deny attorney’s fees for
an abuse of discretion.” Morgan v. Morgan, 193 A.3d 999, 1007 (Pa. Super.
2018). Further, “a party to an action may be awarded counsel fees when
another party engages in dilatory, obdurate, or vexatious conduct during the
pendency of a matter.” Id. (citing 42 Pa.C.S. § 2503(7)).
Instantly, the trial court found that the Agency did not violate the August
26, 2022 order which stated “court-ordered services from [the Agency] are
no longer needed.” Order, 8/26/22. The trial court credited Mr. Perez’s
testimony that the Agency provides county services that do not require court-
involvement and the Agency’s process is to have a case open for six months
following the triggering incident regardless of court-involvement. Trial Ct. Op.
at 5-6 (citing N.T. Hearing, 1/3/23, at 27-29). The trial court concluded that
the Agency did, in fact, cease court-ordered services and continued to offer
county services. Id. at 6. Further, the trial court found that the Agency
complied with the August 29, 2022 subpoena to the extent that it could by
providing all non-confidential documents in its possession to Father.
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The trial court opined, “we found the Agency complied with the [o]rder
of August 26, 2022 in ceasing court-ordered services and also in releasing the
only [] documents it was permitted to that were requested in the subpoena.
Thus, we determined it to be inappropriate to award attorney’s fees to Father
under these circumstances.” Trial Ct. Op. at 7. Upon review, the record
supports the trial courts findings that the Agency did not engage in dilatory,
obdurate, or vexatious conduct and, therefore, it was not appropriate to
impose attorney’s fees.
In conclusion, Father’s first three claims are waived. In addition, the
trial court did not abuse its discretion when it denied Father’s request for
attorney’s fees.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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