dependency adjudication is appealable after both a determination of dependency and a disposition of the child
How later courts described this case
- dependency adjudication is appealable after both a determination of dependency and a disposition of the child
- holding that County agency need not make “reasonable” efforts to locate absent, noncustodial parent whose whereabouts are unknown prior to obtaining finding of dependency
- couple, whose care and control of child was in question, did not waive right to counsel when trial court failed to advise couple of their right to counsel and couple failed to affirmatively waive their right on the record
Written by the judges who cited it.
The opinion
J-A10015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: ALLEGHENY COUNTY No. 1596 WDA 2015
CHILDREN YOUTH AND FAMILIES
Appeal from the Order Entered May 30, 2015
In the Court of Common Pleas of Allegheny County
Family Court, at No(s): CP-02-DP-0000797-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 07, 2017
Allegheny County Office of Children, Youth and Families (“CYF”)
appeals from the order entered on May 30, 2015, adjudicating as dependent
B.G. (“Child”), a minor male from Guatemala, who was living with his adult
cousin, B.G. (“Adult Cousin”), pursuant to the Juvenile Act, 42 Pa.C.S.A. §
6302(1) and (4). We affirm.1
1
This Court previously quashed CYF’s appeal from the May 30, 2015 order
as inoperative, in light of the trial court’s order entered on June 29, 2015,
granting reconsideration of the May 30 dispositional order. In the order
entered on September 14, 2015, the trial court denied reconsideration, thus
necessitating that CYF file a notice of appeal anew. See Pa.R.A.P.
1701(b)(3) (“[T]he time for filing a notice of appeal. . . begins to run anew
after the entry of the decision on reconsideration, whether or not that
decision amounts to a reaffirmation of the prior determination of the trial
court….”) CYF timely filed the present appeal on October 14, 2015, along
with a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
In its notice of appeal, however, CYF purports to appeal from the denial of
the motion for reconsideration. That is incorrect. The appeal lies from the
May 30 dispositional order. The grant of reconsideration simply acted to toll
the period for filing an appeal until a decision on the reconsideration was
J-A10015-16
The trial court summarized the background of the appeal as follows.
B.G. (“Child”) came to the attention of the [c]ourt when
Petitioner Casa San Jose filed an application to file a
private dependency petition, alleging the following:
[Child] was hospitalized with a form of tuberculosis in
December. Because he is an unaccompanied minor, [B.G.
(“Adult Cousin”)] is not his guardian. [Adult Cousin]
wasn’t able to make medical decisions for him. He had a
temporary legal guardian, which expired shortly
afterwards. [Adult Cousin] has brought him to his
monthly appointments at the Allegheny County Health
Department TB Clinic but hasn’t followed up on any of the
other needed care. He should be receiving care to check
the stability of his spine as well as appointments to check
that the medication isn’t damaging his vision. [Adult
Cousin] is his caregiver but he is planning to go back to
Guatemala in the next few months, leaving [Child] alone
in the U.S. without a caretaker, income or documents to
work, [Child]’s health will be in danger.1
The Court adjudicated Child dependent on May 22, 2015.2 On
appeal, the Allegheny County Office of Children, Youth and
Families (“CYF”) takes issue with the [trial court’s] decision to
adjudicate Child dependent and other matters related to that
adjudication.
___________________________________________________
1
Application to File Private Dependency Petition, Petition for
Dependency, and Request for Special Immigrant Juvenile Status,
3 (April 22, 2015) (hereinafter referred to as the “Private
Dependency Petition”).
2
Order of Adjudication [dated] (May 22, 2015). [The order was
filed on May 30, 2015.]
Trial Court Opinion, 11/20/15, at 1.
granted. See Pa.R.A.P. 1701(3); Pa.R.C.P. 1930.2. We have corrected the
caption accordingly.
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J-A10015-16
Further, in its opinion dated November 20, 2015, the trial court set
forth the following factual background and procedural history regarding this
appeal, which we incorporate herein, as follows.
I. Factual Background.
The [c]ourt incorporates the following findings from its May
22, 2015 order adjudicating Child dependent:3
Participants
12. Child was born [in] June 1997. He currently resides in
Allegheny County in the home of his adult cousin, [Adult
Cousin].
13. Child is unmarried.
14. From birth to approximately age 15, Child resided in a town
of approximately 5000 residents in Guatemala.
15. Child entered the Unite[d] States as an undocumented
immigrant. He was picked up at the border by immigration
authorities and was initially held in a juvenile shelter. The
immigration authorities designated [Adult Cousin] as Child’s
sponsor and sent Child to Allegheny County to live in [Adult
Cousin’s] care, pending further immigration proceedings.
16. Child began residing with [Adult Cousin] in December 2013.
17. [Adult Cousin] resides in Allegheny County, and has resided
in the United States for approximately six years. Previously, he
resided in the same town in Guatemala where Child resided.
18. [Adult Cousin] is employed. He works six days per week for
ten hours per day.
19. [Adult Cousin] does not have any form of court-issued
authorization to obtain health care or consent to medical
treatment for Child.
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20. Child’s Mother is [C.P.G. (“Mother”)]. [Mother] resides in
Guatemala in the town where Child resided previously. Mother
speaks a Mayan dialect. She does not speak Spanish or English.
Mother does not know how to read or write.
21. Mother was not able to provide the Court with a mailing
address. There is no post office in her town. The nearest post
office is approximately five hours away. Mother did not know
how mail could be addressed to her to receive it there.
22. Mother does not have access to email and is not familiar with
the internet. Mother believed that internet access might be
available in another town, but not in the town where she lives.
23. Mother did not receive a copy of the Application and Petition
filed in this matter. Although [Adult Cousin] speaks with her on
the phone regularly and has told her about court proceedings
involving Child, it appears likely that the proceedings discussed
were federal immigration proceedings, not this dependency
matter.
24. Through counsel, Mother waived notice of this proceeding.
25. Child’s Father is [A.G.G. (“Father”)]. Father lives in the same
household with Mother.
26. Although Father resides with Mother, he is frequently away
from the household either working or looking for work. He
returns to the household about once per month.
27. At the time of this hearing, Father was away looking for
work. Mother did not know his specific whereabouts.
28. Casa San Jose is a social service agency that is operated by
the Sisters of St. Joseph. The agency assists Latino immigrants
who reside in Allegheny County. Among other things, the agency
provides service coordination and advocacy, tutoring, mentoring,
assistance with translation, occasional assistance with
transportation.
29. Casa San Jose has provided services to Child and [Adult
Cousin] since the summer of 2014. Services provided have
included assistance getting Child enrolled in school, assistance in
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J-A10015-16
obtaining well-child health care at a free clinic, transportation to
some medical appointments, and attendance with Child and
[Adult Cousin] at some medical appointments to assist with
English/Spanish translation.
30. Casa San Jose does not have legal custody of Child and does
not have any form of authority to obtain health care or consent
to medical treatment for Child.
Child’s Care and Treatment in Allegheny County:
31. Child is enrolled in Gateway School District. He attends ninth
grade and is assigned to an English as a Second Language
program.
32. Child has a heart murmur that requires monitoring.
33. In approximately November 2014 [Adult Cousin] became
aware of an abscess on Child’s back and sought medical
treatment for him.
34. Child was hospitalized at Forbes Regional Hospital for
approximately two weeks and was discharged in December
2014.
35. Child was diagnosed with tuberculosis of the spine (“TB”),
also known as Pott’s Disease. Child’s condition is not contagious.
36. Child’s condition does require a medication treatment
regimen that lasts six to nine months.
37. Child receives treatment for his TB through the Allegheny
County Health Department. The Health Department delivers
medications to Child’s home daily and provides “Direct Observed
Therapy.” The Health Department also provides dosages of the
necessary medications for the weekends.
38. Child also attends appointments for monitoring at the Health
Department’s TB clinic.
39. Child is currently in the sixth month of his treatment
regimen. His treatment for the TB is not yet completed.
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40. One of the medications initially prescribed to Child for the TB
can affect vision. That medication has been changed.
41. When Child was hospitalized, hospital staff recognized that
no one involved in Child’s care had legal authority to obtain and
consent to treatment for Child. The hospital arranged for an
agency that typically provides guardianship services for elderly
clients to be appointed as Child’s temporary legal guardian.
42. Child’s discharge plan from Forbes Regional Hospital included
recommendations for cardiology, neurology and orthopedic
follow-up appointments. None of this recommended follow-up
has occurred.
43. The appointed temporary legal guardian did not take
responsibility for ensuring that follow-up treatment occurred.
The temporary guardianship has now expired.
44. The Allegheny County Health Department apparently has
been willing to provide TB treatment to Child despite the
absence of an adult with legal authority to consent to treatment.
However, the lack of an adult with legal authority to consent to
treatment has posed difficulties for Child.
45. For example, at one appointment at the TB clinic, a blood
draw was needed. The TB clinic director was initially unwilling to
permit it because no adult with legal authority to consent was
present. A Casa San Jose staff member who was present at the
appointment successfully advocated with the clinic and
persuaded the clinic to perform the blood draw.
46. Although [Adult Cousin] believes he has taken Child to all
necessary medical appointments, Casa San Jose staff testified
credibly that [Adult Cousin] has missed appointments because of
his work schedule.
47. [Adult Cousin] has not made arrangements for any of the
follow-up medical care that was recommended when Child was
discharged from Forbes Regional Hospital.
48. There is a free health clinic that provides health care to the
Latino immigrant community. Child has received some services
from this clinic. The clinic can sometimes arrange for
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J-A10015-16
appointments with specialists who donate time to the health
clinic.
49. Although Child has received some services from the free
clinic, he did not attend any appointments there from the end of
summer 2014 to April 2015. Because Child was not attending the
free clinic regularly, no appointments with specialists occurred
there prior to the initiation of these proceedings.
50. While exploring options to ensure that Child received his
needed health care, Casa San Jose staff learned that the federal
Office of Refugee Resettlement (“ORR”) offers a form that
parents can sign before a notary to authorize another adult to
obtain health care for their child.
51. Casa San Jose did not attempt to pursue this option with
Child’s parents, because [Adult Cousin] is not reliably available
to take Child to needed appointments. [Adult Cousin] has
directly stated as much to Casa San Jose staff on more than one
occasion.
52. It is also difficult for [Adult Cousin] to bear full responsibility
for Child’s health care because of language barriers and because
of [Adult Cousin’s] limited experience with obtaining regular
medical treatment of any kind.
53. [Adult Cousin] plans to return to Guatemala by the end of
2015.
54. Ms. Melinda Sala, attorney for the Allegheny County Health
Department, attended the first day of this hearing and brought
with her Child’s records of treatment from the TB clinic. Ms. Sala
stated that she was unable to release Child’s records in response
to a subpoena she received because she could not determine
who functions as Child’s legal guardian. However, Ms. Sala was
willing to submit the records directly to this Court, and the Court
accepted the records so submitted.
55. Ms. Laurel Phillips, CYF Supervisor, testified credibly that she
was unable to obtain Child’s records from his treatment at
Forbes Regional Hospital.
Child’s Care and Treatment in Guatemala:
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J-A10015-16
56. There is no medical care available in Child’s town in
Guatemala. The nearest doctor is five hours away by bus.
57. Child received a set of basic immunizations in Guatemala
when he was young.
58. Other than his immunizations, Child has never received
routine health care in Guatemala and has never seen a doctor
there.
59. The medical care Child needs for his TB is not available to
him in Guatemala.
60. Mother would not be able to provide adequate care for Child
if he were to return to her care.
61. Child left Guatemala to travel to the United States
approximately two years ago, when Child was 15 years old.
62. Mother provided Child with some money for the trip in order
to buy food. However, Mother sent Child on the trip by himself,
not accompanied by any adult.
63. Child’s trip to the United States required two or three days of
walking to reach the desert.
64. Child then needed to cross the desert and continue through
Mexico to reach the United States.
65. The trip from Guatemala to the United States is quite
dangerous.
66. Child’s family lives in extreme poverty in Guatemala. The
area where the family lives is not safe. There is gang activity
there. Kidnappings are not uncommon. The area is quite isolated
and receives little government assistance.
II. Procedural Background.
On April 22, 2015, Petitioner Casa San Jose filed an
Application to File Private Dependency Petition, Petition for
Dependency, and Request for Special Immigrant Juvenile Status
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J-A10015-16
with this [c]ourt. On May 13, 2015, the [c]ourt conducted a
hearing on Petitioner’s application and determined Petitioner
alleged sufficient facts to support a petition for dependency.4
During the hearing, the [c]ourt granted an oral motion by CYF to
intervene,5 determined that Petitioner was not a party to the
proceedings,6 and determined that Adult Cousin was a party and
had a right to be represented by counsel.7
The [c]ourt held a two-day adjudicatory hearing on the
petition on May 15, 2015 and May 22, 2015. Following the
conclusion of the hearing, the [c]ourt determined Child was
dependent pursuant to subsections (4) and (1) of the Juvenile
Act. The [c]ourt’s order to that effect was entered on the docket
on May 26, 2015.
In addition to the issue of dependency, the [c]ourt heard
testimony during the adjudicatory hearing on Petitioner’s request
to determine Child’s eligibility to pursue Special Immigrant
Juvenile (“SIJ”) status. SIJ is a federal immigration status
available to foreign children in the United States who have been
abused, abandoned, or neglected.8 To obtain SIJ status, a child
must first apply to a state court for an order finding that he or
she meets the statutory and regulatory requirements.9 Second,
he or she must submit a petition to U.S. Citizenship and
Immigration Services, which makes the final immigration
decision.10 In this matter, the [c]ourt found that Child met the
eligibility requirements to apply to the federal government for
SIJ status because he is under 21, unmarried, a dependent child,
and because reunification with his parents is not viable due to
neglect and it is not in his best interest to return to Guatemala.
The [c]ourt’s order to that effect was entered on the docket on
May 26, 2015.11
The [c]ourt proceeded to a dispositional hearing on May
27, 2015. A final dispositional order was entered on May 30,
2015.12 On June 25, 2015, CYF filed both a timely notice of
appeal of that order and a motion for reconsideration.13 On June
29, 2015, the [c]ourt granted CYF’s motion for reconsideration
and later scheduled a status conference for August 19, 2015 to
discuss with counsel the merits of the May 30, 2015 final order.
The Superior Court quashed CYF’s appeal on August 13, 2015
because this [c]ourt’s June 29, 2015 order granting
reconsideration rendered the appeal inoperative.14
-9-
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___________________________________________________
3
Order of Adjudication, ¶12-66 (May 22, 2015). As discussed in
Section III (B), the [c]ourt found some facts relevant to Child’s
dependency and some relevant to Child’s eligibility to apply to
the federal government for special immigrant juvenile status.
4
The [c]ourt made this finding pursuant to Pa.R.J.C.P. No.
1321(a)(2).
5
Tr. 2:19-3:12, 12:5-23 (May 13, 2015).
6
The [c]ourt made this finding pursuant to Pa.R.J.C.P. No. 1321.
7
Adult Cousin is a party to the dependency proceedings because
the dependency petition called into question his care and control
of Child. See Part 111.D below.
8
SIJ is an immigration status under the Immigration Act of
1990, as amended by the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (“TVPRA”), and codified
at 8 U.S.C. § 1101(a)(27)(J).
9
8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 284.11 (this regulation
must be read in conjunction with the 2008 amendments to 8
U.S.C. § 1101, as the regulation has not been updated to reflect
those amendments).
10
See generally, Special Immigrant Juvenile Status:
Information for Juvenile Courts, U.S. Citizenship an
Immigration Services,
http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/
Green%20Card%20 Through
%20a%%20Job/Information_for_Juvenile-Courts—Final.pdf,
alternatively may be linked through http://www.uscis.gov/green-
card/special-immigrant-juveniles/speciall-immigrant-juveniles-
sij-status (last visited November 13, 2015).
11
Compare Order of Special Immigrant Juvenile Status
Eligibility (May 22, 2015), with, 8 U.S.C. § 1101(a)(27)(J) (SIJ
status statutory requirements), and 8 C.F.R. § 204.11 (SIJ
status regulatory requirements).
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12
See In Re: C.A.M., 399 A.2d 786 (Pa. Super. 1979)
(dependency adjudication is appealable after both a
determination of dependency and a disposition of the child).
13
CYF earlier appealed Adult Cousin’s standing to participate in
the dependency proceedings. That appeal was quashed as
untimely on July 15, 2015. See 913 WDA 2015 (docketed June
12, 2015).
14
See Pa.R.A.P. 170! and accompanying notes.
See Trial Court Opinion, 11/20/15, at 2-8.
This timely appeal followed. CYF filed a concise statement of errors on
appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, CYF raises the following issues:
1. Whether the trial court erred as a matter of law when it
proceeded with the adjudication hearing without proper
notification to parents?
2. Whether the trial court erred as a matter of law when it
granted [Adult Cousin] standing to participate as a party in the
Juvenile Dependency proceeding?
3. Whether the trial court abused its discretion when it
adjudicated [Child] dependent when there was insufficient
evidence presented to support a finding of dependency?
4. Whether the trial court abused its discretion and/or erred as a
matter of law when it considered and relied on testimony
presented solely for the purpose of determining whether the
child meet[s] Special Immigrant Juvenile Status and used that
testimony as findings of fact for an adjudication of dependency?
CYF’s Brief, at 4.2
2
We note that CYF stated its issues somewhat differently in its concise
statement, and it changed the order of the issues. In its first and second
issues, respectively, as framed in its concise statement, CYF asserted that
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The relevant standard and scope of review in child dependency
matters is as follows.
We accept the trial court’s factual findings that are supported by
the record, and defer to the court’s credibility determinations.
We accord great weight to this function of the hearing judge
because he is in the position to observe and rule upon the
credibility of the witnesses and the parties who appear before
him. Relying upon his unique posture, we will not overrule [the
trial court’s] findings if they are supported by competent
evidence.
In re R.P., 957 A.2d 1205, 1211 (Pa. Super. 2008) (citations and
quotations omitted) (brackets in original). We must accept the trial court’s
factual findings if they are supported by competent evidence. See In the
Interest of J.O.V., 686 A.2d 421, 422 (Pa. Super. 1996). This Court is not
bound by the trial court’s inferences or conclusions of law. See In re:
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
The proper standard of review in dependency cases is abuse of
discretion. See id. “An abuse of discretion is not merely an error of
judgment; if, in reaching a conclusion, the court overrides or misapplies the
law, or the judgment exercised is shown by the record to be either
manifestly unreasonable or the product of partiality, prejudice, bias or ill will,
the trial court abused its discretion by adjudicating Child dependent when
there was insufficient evidence presented to support a finding of dependency
under 42 Pa.C.S.A. § 6302(1) and (4), and that the trial court erred as a
matter of law by adjudicating Child dependent when there was no competent
evidence presented on the record to support the allegations as alleged in the
private dependency petition. We find the issues preserved for our review.
- 12 -
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discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111
(Pa. Super. 2007) (citations omitted).
Section 6302 of the Juvenile Code defines a “dependent child” in as
one who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk[.] . . .
(2) has been placed for care or adoption in violation of law;
(3) has been abandoned by his parents, guardian, or other
custodian;
(4) is without a parent, guardian, or legal custodian;
(5) while subject to compulsory school attendance is habitually
and without justification truant from school;
(6) has committed a specific acts or acts of habitual
disobedience of the reasonable and lawful commands of his
parent, guardian or other custodian and who is ungovernable
and found to be in need of care, treatment or supervision;
(7) is under the age of ten years and has committed a
delinquent act;
(8) has been formerly adjudicated dependent, and is under the
jurisdiction of the court, subject to its conditions or placements
and who commits an act which is defined as ungovernable in
paragraph (6);
(9) has been referred pursuant to section 6323 (relating to
informed adjustment), and who commits an act which is defined
as ungovernable in paragraph (6);
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(10) is born to a parent whose parental rights with regard to
another child have been involuntarily terminated under 23
Pa.C.S. § 2511 (relating to grounds for involuntary termination)
within three years immediately preceding the date of birth of the
child and conduct of the parent poses a risk to the health, safety
or welfare of the child.
42 Pa.C.S.A. § 6302.
This Court has clarified the definition of “dependent child” further.
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental
care and control, and if so, whether such care and control are
immediately available.
In re G., T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal quotations and
citations omitted).
Additionally, we note that “[t]he burden of proof in a dependency
proceeding is on the petitioner to demonstrate by clear and convincing
evidence that a child meets that statutory definition of dependency.” Id.
(citation omitted).
With regard to a dependent child, this Court has explained that
[a] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the court
finds that the child is dependent, then the court may make an
appropriate disposition of the child to protect the child’s physical,
mental and moral welfare, including allowing the child to remain
with the parents subject to supervision, transferring temporary
legal custody to a relative or public agency, or transferring
custody to the juvenile court of another state. 42 Pa.C.S. §
6351(a).
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In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002) (en banc) (citation
omitted).
First, CYF contends that the trial court erred as a matter of law when
it proceeded with the adjudicatory hearing without proper notice to the
parties, in contravention of the Pennsylvania Rules of Juvenile Court
Procedure.
With regard to the notice issue, CYF contends that the trial court failed
to comply with the rules regarding the service of notice on the parties,
particularly Child’s parents. CYF cites Pennsylvania Rules of Juvenile Court
Procedure 1331, and 1360 and 1360(C).
With regard to service to parties, Rule 1331 states:
A. Copy. Upon the filing of a petition, a copy of the petition shall
be served promptly upon the child, the child’s guardian, the
child's attorney, the guardian’s attorney, the attorney for the
county agency, and the county agency.
Pa.R.J.C.P. 1331. The comment to the Rule instructs that if the parent is not
the child's guardian the parent is still to receive service of the petition.
Rule 1360 directs that the court “shall issue a summons compelling all
parties to appear for the adjudicatory hearing.” Pa.R.J.C.P. 1360. See also
42 Pa.C.S.A. § 6335. The requirements for the summons are as follows:
C. Requirements. The summons shall:
(1) be in writing;
(2) set forth the date, time, and place of the adjudicatory
hearing;
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(3) instruct the child and the guardian about their rights to
counsel, and if the child’s guardian is without financial resources
or otherwise unable to employ counsel, the right to assigned
counsel;
(4) give a warning stating that the failure to appear for the
hearing may result in arrest; and
(5) include a copy of the petition unless the petition has been
previously served.
Pa.R.J.C.P. 1360(C).
Rule 1361 of the Pennsylvania Rules of Juvenile Court Procedure also
mandate the provision of an Adjudicatory Notice to the parties, and that the
serving party show proof of service by filing an affidavit of service. If the
serving party does not file an affidavit of service, then “the serving party
shall advise the court of what efforts were made to notify a person. The
court may proceed to a hearing upon a showing of reasonable efforts to
locate and notify all persons pursuant to Rule 1360.” Pa.R.J.C.P. 1363(D).
Prior to commencing the adjudicatory hearing, the trial court is
required to ascertain whether the notice requirements of Rules 1360 and
1361 were met. See Pa.R.J.C.P. Rule 1406(A)(1)(a).
The trial court addressed the notice issue as follows.
CYF complains that the [c]ourt should not have proceeded with
the adjudicatory hearing because the Petitioner failed to formally
notify Parents of the petition. The [c]ourt questions whether CYF
is the appropriate party to raise this issue. Mother waived notice
through her counsel,39 and Father has not appealed. The [c]ourt
does not see how CYF was prejudiced by the [c]ourt’s decision to
proceed. Assuming the Superior Court wishes to address this
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issue, the [c]ourt will briefly discuss its reasons for moving
forward with the adjudicatory hearing:
The Rules of Juvenile Court Procedure allow the [c]ourt to
conduct an adjudicatory hearing if reasonable efforts have been
made to notify the parties of the proceeding.40 Here, the
Petitioner admittedly failed to provide notice to Parents.41 The
[c]ourt addressed this problem by instructing counsel to make
phone contact with Parents between the first and second days of
the adjudicatory hearing.42 This effort to provide notice
succeeded. Mother participated fully in the second day of the
adjudicatory hearing. The [c]ourt located and arranged for an
interpreter capable of communicating with Mother and also made
appointed counsel immediately available.
As Mother credibly testified, although Father lives in the
same household with Mother, he is away looking for work for
most of every month, was away at the time of the hearing and
was unable to participate.
It became apparent from Mother’s testimony that
circumstances would not likely have permitted any other form of
notice. Parents do not receive mail in their village, and Mother’s
testimony supports the conclusion that they do not receive mail
at all. The internet is not available. Mother does not read or
write any language and speaks only Chuj, a rare Mayan dialect.43
Under these circumstances, the actual telephonic notice provided
seems both reasonable to the [c]ourt and more effective than
delivery of a written copy of the petition that Mother could not
have read.
For these reasons, the [c]ourt felt reasonable efforts were
made to notify Parents of and involve them in the adjudicatory
hearing.44
___________________________________________________
38
Tr. 45:1-47:23, 60:10-62:15, 64:16-67:4, 71:22-79:5 (May
15, 2015) (sorting relevance of testimony); 35:6-36:7, 47:17-
49:17, 55:23-56:19, 57:14-58:9 (May 22, 2015) (sorting
relevance of testimony); 113:9-121:18 (May 22, 2015)
(explaining disposition).
39
Tr. 103: 10-18 (May 22, 2015).
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40
Pa.R.J.C.P. No. 1363.
41
Tr. 112:25-113:14 (May 15, 2015).
42
Tr. 175:14-176:24 (May 15, 2015); Tr. 6:6-7:22 (May 22,
2015).
43
Tr. 53:11-55:7 (May 22, 2015) (reading and writing); Tr.
175:18-176:24 (May 15, 2015) (Chuj dialect).
44
The Court is not aware of any case law guidance regarding the
adequacy of efforts to provide notice of a dependency
proceeding since the Rules of Juvenile Court Procedure for
Dependency Matters became effective in 2007. Previous case law
does not even recognize an obligation to make reasonable efforts
to locate and provide notice to an absent parent. Cf. In re J.C.,
603 A.2d 627 (Pa. Super. 1992) (holding that County agency
need not make “reasonable” efforts to locate absent,
noncustodial parent whose whereabouts are unknown prior to
obtaining finding of dependency). The [c]ourt suggests that it is
wise to leave discretion to trial courts to determine what is
reasonable in the context of the specific circumstances an
individual case presents. Here, the [c]ourt was faced with a child
who had been out of his parents’ care for almost two years and
who had not received medical care recommended six months
earlier. While the [c]ourt must and does respect a parent’s
custodial rights, the [c]ourt must not risk a child’s well-being in
so doing. The [c]ourt believes it exercised discretion reasonably
under these circumstances.
Trial Court Opinion, 11/20/15, at 15-16.
Importantly, the trial court found that Mother, through her counsel,
waived notice and testified at the hearing. Father was out of town and
unavailable, and does not challenge the provision of notice to him or the
adjudication and disposition order in any way. We agree, and find no abuse
of the trial court’s discretion in holding the hearing despite the failure of CYF
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to strictly adhere to the notice provisions of the Pennsylvania Rules of
Juvenile Court Procedure and the Juvenile Act under the circumstances of
the instant case.
Next, we address CYF’s second issue, alleging Adult Cousin’s lack of
standing to participate as a party to the proceedings. CYF argues that the
Pennsylvania Rule of Juvenile Court Procedure dictate the procedure
necessary for a non-party to gain party status as follows.
Rule 1133. Motion to Intervene
A. Contents. The motion to intervene shall include:
(1) the name and address of the person moving to
intervene;
(2) the relationship of the intervening person to the child;
(3) the contact between the child and the intervening
person;
(4) the grounds on which intervention is sought; and
(5) the request sought.
B. Action by court. Upon the filing of a motion to intervene and
after a hearing, the court shall enter an order granting or
denying the motion.
Pa.R.J.C.P. 1133.
We agree with CYF that our case law establishes that, where the child
in question has a legal custodian, it is the care being given to the child in
question at the time of the filing of the dependency petition that is the focus
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of the Juvenile Act, not whether the Child previously experienced an
abandonment by his natural parents.
“[T]he Juvenile Act focuses on the care and control afforded a child,
regardless of the status of the provider: natural parent, foster parent, or
parent substitute.” In re L.J., 691 A.2d 520, 526 (Pa. Super. 1997). See
also In re Michael Y., 530 A.2d 115 (Pa. Super. 1987). Thus, we have
instructed that a legal custodian is treated on par with a parent for purposes
of the dependency inquiry, and should be included in the proceedings.
In fact, this Court further stated that
[a]lthough the Juvenile Act does not define “party,” case law
from this Court has conferred the status of party to a
dependency proceeding on three classes of persons: (1) the
parents of the juvenile whose dependency status is at issue; (2)
the legal custodian of the juvenile whose dependency status is at
issue[;] or (3) the person whose care and control of the juvenile
is in question. . . . These categories logically stem from the fact
that upon an adjudication of dependency, the court has the
authority to remove a child from the custody of his or her
parents or legal custodian. 42 Pa.C.S.A. §§ [sic] 6351. 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. . . .
In re L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006) (citations omitted).
The trial court provided the following reasoning.
[T]he Superior Court recognizes three classes of persons
as having standing in dependency proceedings:
(1) the parents of the juvenile whose dependency status
is at issue; (2) the legal custodian of the juvenile whose
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dependency status is at issue, or (3) the person whose
care and control of the juvenile is in question.45
Here, Adult Cousin falls squarely into the third class
because the Private Dependency Petition directly called into
question his care and control of Child. Specifically, the petition
alleged:
[Adult Cousin] has brought [Child] to his monthly
appointments at the Allegheny County Health Department
TB Clinic but hasn’t followed up on any of the other
needed care. [Child] should be receiving care to check
the stability of his spine as well as appointments to check
that the medication isn’t damaging his vision.46
CYF did not dispute that these allegations raised the issue of the
adequacy of Adult Cousin’s care. Rather, CYF argued that the
petition did not question Adult Cousin’s care because petitioner
failed to check the line for subsection (1) on the form petition
that Petitioner used.47 This argument elevates form over
substance and merits no relief. Rule 1126 of the Rules of
Juvenile Court Procedure instructs a trial court not to dismiss a
matter because of a defect in form unless the court is notified of
the defect prior to the adjudicatory hearing and the defect is
prejudicial to the rights of a party. Here, CYF timely notified the
[c]ourt of the alleged defect by filing its May 14, 2015
Emergency Motion for Reconsideration. CYF, however, failed to
establish that it suffered any prejudice because of this defect.49
Furthermore, the [c]ourt’s recognition of Adult Cousin as a
person with party standing fell within the scope of the [c]ourt’s
duty to protect the rights of litigants who come before it.
Section 6337 of the Juvenile Act grants parties in juvenile
matters the right to be represented by counsel.50 The section
further requires the [c]ourt to ascertain whether an
unrepresented party appearing before the [c]ourt is aware of
this right.51 It seems clearly inherent in this duty to notify
parties of their right to counsel that the [c]ourt has a
corresponding duty to determine whether an unrepresented
person appearing before the [c]ourt is a party who should be
informed of this right. 52
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Because the adequacy of Adult Cousin’s care and control of
Child was challenged in the Private Dependency Petition, the
[c]ourt appropriately recognized his standing to participate as a
party in the adjudicatory hearing.
___________________________________________________
45
CYF Emergency Motion for Reconsideration, ¶ 4 (May 14,
2015) (citing In re L.C., II, 900 A.2d 378, 381 (Pa. Super.
2006)).
46
Private Dependency Petition, 3 (April 22, 2015).
47
Tr. 20:2-14 (May 15, 2015), Subsection (4) was the only line
checked on the form petition. Private Dependency Petition, 2
(April 22, 2015).
48
Pa.R.J.C.P. 1126.
49
Prejudice might have occurred had petitioner failed to mention
in the text of the private dependency petition that Adult Cousin
failed to provide Child with adequate parental care and control,
leaving other parties unable to anticipate that claim when
preparing to litigate the adjudicatory hearing. See, e.g., In re
R.M., [567 Pa. 646, 653-655, 790 A.2d 300, 305 (2002)] (due
process requires that a dependency petition provide a
“reasonable factual specificity” of the facts of the matter(s) so
that a party may adequately prepare a response and defense).
50
42 Pa.C.S. § 6337.
51
Id.; see also, Pa.R.J.C.P. 1406(A)(1)(b)(requiring the court
to determine whether unrepresented parties have been informed
of their right to counsel under 42 Pa.C.S. § 6337). The Superior
Court has held that a Court’s failure to advise an unrepresented
party of this right is grounds for reversal. See, In re Manuel,
566 A.2d 626 (Pa. Super. 1989) (couple, whose care and control
of child was in question, did not waive right to counsel when trial
court failed to advise couple of their right to counsel and couple
failed to affirmatively waive their right on the record).
52
While no affirmative duty to determine party status appears in
the Juvenile Act or the Rules of Juvenile Court Procedure, this
means of fulfilling the [c]ourt’s required duties under Section
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6337 comports with the purpose of the Juvenile Act. See, e.g.,
42 Pa.C.S. § 6301(b)(4) (identifying one purpose of Act as “[to
provide means through which the provisions of [the Juvenile Act]
are executed and enforced and in which the parties are assured
a fair hearing and their constitutional and other legal rights are
recognized and enforced”).
Trial Court Opinion, 11/20/15, at 17-18.
We find no abuse of the trial court’s discretion in finding that Adult
Cousin had standing to participate as a party to the proceedings, as a
caregiver of the juvenile child whose care and control was in question under
the circumstances of the instant case.
Next, we address the fourth issue raised in CYF’s brief. CYF complains
that the trial court allowed testimony, over the objection of CYF’s counsel,
regarding the conditions Child experienced in Guatemala for purposes of
making a finding with regard to SIJ status. CYF asserts that the trial court
then used the testimony as facts to establish Child’s dependency under 42
Pa.C.S.A. § 6302(1) and (4). CYF claims that the trial court erred as a
matter of law and abused its discretion when it considered evidence and
relied on testimony presented solely for determining whether Child met SIJ
status in its findings of fact for an adjudication of dependency.
The trial court provided the following reasoning with regard to this
issue.
In this matter, Petitioner Casa San Jose requested both an
adjudication of dependency and findings necessary to permit
Child to apply to the federal government for special immigrant
juvenile status.35 The [c]ourt found that Child meets the
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eligibility criteria for SIJ status and entered an order to that
effect following adjudication.36
On appeal, CYF does not challenge the [c]ourt’s order
regarding Child’s eligibility for SIJ status.37 CYF complains only
that the [c]ourt mistakenly relied on testimony related to Child’s
request for SIJ eligibility findings to support the [c]ourt’s
conclusion that Child is a dependent child. This complaint lacks
merit. The [c]ourt properly considered facts relevant to
dependency when adjudicating Child dependent and considered
facts relevant to SIJ status when finding Child eligible to apply
for SIJ status.
For purposes of judicial economy, the [c]ourt heard
testimony related to dependency and SIJ status during the same
proceeding. The [c]ourt’s decision to do so did not differ from
common practice in proceedings without juries where the court
serves as finder of fact. For instance, in dependency matters, the
[c]ourt frequently hears testimony on adjudication and
disposition in the same hearing. Similarly, in termination of
parental rights matters, the [c]ourt frequently hears testimony
on grounds for termination and the child’s needs and welfare in
the same hearing. Just as in those cases, this [c]ourt considered
all admissible evidence, sorted it, relied on the portions relevant
to dependency to make the dependency determination, and
relied on the portions relevant to SIJ to make the SIJ
determination. Furthermore, the [c]ourt took considerable and
specific care to distinguish the testimony relevant to dependency
from the testimony relevant to SIJ status during the hearing,
during the [c]ourt’s announcement of its ruling on the record,
and in the written findings of fact contained in the order of
adjudication.38
For these reasons, CYF is mistaken about the [c]ourt’s
application of the facts and the Superior Court should affirm.
___________________________________________________
35
See generally, Private Dependency Petition (April 22, 2015).
36
See, Special Immigrant Juvenile Status Eligibility, CP-02-DP-
0000797-2015 (May 22, 2015).
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37
While this court is not aware of any published decisions by the
Superior Court regarding how Pennsylvania trial courts should
handle requests for SIJ status findings, state appellate courts
have addressed the interplay between the federal immigration
process and state juvenile courts. E.g., H.S.P. v. J.K., 121 A.3d
849 (N.J. 2015); see also, Special Immigrant Juvenile
Status: Information for Juvenile Courts, supra fn. 10.
Trial Court Opinion, 11/20/15, at 14-15 (footnotes in original).
“Questions concerning the relevancy of evidence are within the sound
discretion of the trial court and will not be reversed on appeal absent a clear
abuse of discretion.” Sprague v. Walter, 656 A.2d 890, 907 (Pa. Super.
1995) (citation omitted).
After careful review of the record in this matter, for the reasons set
forth by the trial court, we find no abuse of the trial court’s discretion in
allowing testimony, over the objection of CYF’s counsel, regarding the
conditions Child experienced in Guatemala for purposes of making a finding
with regard to SIJ status in this matter.
Finally, we address CYF’s third issue: whether there was insufficient
evidence upon which to find Child dependent. CYF asserts that there was no
evidence to support a finding that Child is dependent under § 6302(4) of the
Juvenile Act, regarding lack of a parent, guardian, or legal custodian. With
regard to its finding of dependency under § 6302(4), the trial court provided
the following reasoning.
The Juvenile Act rests on the recognition that children are
vulnerable and the state has an obligation to protect them.19
This obligation includes ensuring that children are in the legal
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custody of a responsible adult. Unlike adults, children cannot
legally take care of and provide for themselves. Unless
emancipated, children generally cannot enter contracts, rent an
apartment, enroll themselves in school, or apply for public
benefits. Children are limited in their capacity to obtain
employment and control bank accounts. When a child is sick,
that child generally cannot provide consent to be treated.20 The
law expects adults, typically parents, to exercise legal authority
on behalf of children.
Given the importance of the legal role adults play on behalf
of children, the General Assembly wisely included children who
lack such a responsible adult within the Juvenile Act’s definition
of “dependent child.”21 Thus, when a child lacks a parent,
guardian, or legal custodian and comes to the attention of the
state, the [c]ourt can rectify the situation by adjudicating the
child dependent and awarding temporary legal custody to a
qualified individual, a licensed agency, or a public agency such
as CYF.22 Adjudication on this basis does not require proof that
the Child has suffered some specific harm, or faces some future
harm. The General Assembly recognized that the mere lack of a
parent, legal custodian, or guardian itself warrants the state's
intervention.
In this matter, Child does not have a responsible adult
available to exercise legal authority on his behalf. It was
undisputed that Adult Cousin is not Child’s legal custodian, and
that a prior guardianship was no longer in effect.23 While Child
does have living parents (“Parents”), they are not present in
Allegheny County, or in the Commonwealth of Pennsylvania, or
in the United States of America. Parents live in a small
Guatemalan village, some 1,800 miles away from Allegheny
County. Mother testified that Parents do not receive mail and do
not have access to the internet. Mother testified she might be
able to receive mail if it was sent to the next village, which is a
five to six hours from Parents’ home.24 Even phone
communication with Parents is difficult, as Parents only speak
Chuj. Chuj is a 2,000 year-old rare Mayan dialect spoken by
43,000 people worldwide.25 Court staff and administration
worked diligently to locate and secure qualified Chuj interpreters
for this matter, none of whom reside in Pennsylvania. These
circumstances make it effectively impractical and impossible for
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Parents to exercise legal authority on behalf of Child here in
Allegheny County.26
These facts by themselves and without anything more,
warranted an adjudication of dependency. As discussed above,
adjudication under subsection (4) does not require proof that the
lack of a legal custodian has caused or will cause the Child harm.
Even though this evidence was not necessary for adjudication,
the [c]ourt heard ample testimony during the hearing to
conclude that Child has been harmed by his lack of a legal
custodian. When Child was hospitalized in November 2014 at
Forbes Regional Hospital for tuberculosis of the spine, the
hospital could only provide Child with emergency care because
Child lacked a legal custodian to consent to additional medical
treatment.27 While the hospital successfully had a temporary
guardian appointed for Child, the evidence at the hearing
demonstrated that the temporary guardian failed to exercise
appropriate and necessary legal authority following Child’s
discharge from the hospital. The county health department
followed up with Child’s tuberculosis treatment, but the
temporary guardian failed to facilitate or provide consent for
Child's other necessary follow-up medical care.28 Child also
nearly was refused a simple blood draw at the county
tuberculosis cl¡nic.29
Given the above, the [c]ourt properly concluded that Child
lacks a parent guardian, or custodian -- a status the General
Assembly clearly recognized as warranting an adjudication of
dependency.30
________________________________________________________
19
See generally, 42 Pa.C.S. § 6301(b).
20
Cf. Minors’ Consent Act, 35 P.S. § 10101 et seq. (allowing
minors to consent to their own medical treatment in limited
circumstances).
21
42 Pa.C.S. § 6302(4) (‘dependent child’ includes a child who
“is without a parent, guardian, or legal custodian”).
22
42 Pa. C.S. § 6351(2).
23
Tr. 113:18 - 114:13 (May 15, 2015).
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24
Tr. 40:11-43:10 (May 22, 2015).
25
See, e.g. M. Paul Lewis, Gary F. Simons & Charles D. Fennig,
Ethnologue: Languages of the World, Chuj (18th ed. 2015),
available at http://www.ethnologue.com/language/cac.
26
The record reflects no attempt by Parents to exercise legal
decision-making authority on behalf of Child since they sent him
to the U.S. in 2013. Even when Child was hospitalized, the
record reflects no effort by Parents to act, or to explore possible
ways to delegate their legal decision-making authority to some
other responsible adult.
27
Minors’ Consent Act, 35 P.S. § 10104.
28
The parties stipulated that “Forbes Regional Hospital
recommended cardiology, neurology, and orthopedic as follow
upon discharge” and that the follow-up care did not occur. Tr.
30:14-31:18 (May 22, 2015).
29
Tr. 147:25-150:10 (May 15, 2015) (Casa San Jose staff
explaining difficulty in ensuring Child could have his blood drawn
because no one present at appointment had legal authority to
consent for the procedure).
30
This Court is unaware of any case law discussing the scope or
application of subsection (4) of the definition of “dependent
child”. For the reasons given, this Court believes subsection (4)
provides the basis for adjudication that most accurately matches
Child’s circumstances. However, if the Superior Court is not
inclined to provide guidance on subsection (4) at this time, this
Court would suggest that the circumstances also support an
adjudication based on subsection (1). Parents’ failure to even
attempt to exercise legal decision-making authority to help Child
receive necessary medical treatment in the U.S. demonstrates
their inadequate parental care or control of Child.
Trial Court Opinion, 11/20/15, at 10-12.
After careful review of the record in this matter, for the reasons set
forth by the trial court, we find no abuse of the trial court’s discretion in
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finding that Child was dependent for lack of a parent, guardian, or legal
custodian under section 6302(4) of the Juvenile Act.
CYF also asserts that there was no evidence to support a finding that
Child is dependent under § 6302(1) of the Juvenile Act, regarding lack of
necessary parental care or control. With regard to its finding of dependency
under § 6302(1), the trial court provided the following reasoning.
If the only basis for Child's dependency had been lack of a
legal custodian, the [c]ourt could have adjudicated Child
dependent and awarded temporary legal custody to Adult
Cousin.31 However, the evidence presented during the
adjudicatory hearing also clearly demonstrated Child was
dependent pursuant to subsection (1) because Child’s caregiver,
Adult Cousin, failed to provide Child with adequate care and
control.
Child’s caregiver in the United States is Adult Cousin.
While Adult Cousin has taken Child to most of his tuberculosis
appointments, he failed to schedule or arrange appointments for
necessary follow-up care related to concerns about Child’s spine,
heart murmur, and vision problems.32 Casa San Jose staff, who
attend appointments with Child and Adult Cousin to help
translate, testified credibly that Child has missed medical
appointments because of Adult Cousin’s work schedule and that
Adult Cousin has failed to schedule and arrange follow-up
treatment for Child.33
Well-settled case law establishes that the question of
whether a child is dependent due to lack of proper parental care
or control encompasses two discrete questions: “whether the
child presently is without proper parental care and control, and if
so, whether such care and control are immediately available.”34
Here, Child lacked proper care or control from Adult Cousin
because of Adult Cousin’s failure to provide or obtain necessary
health care. The, [c]ourt quite reasonably found that such care
was not immediately available from Parents. Parents live 1,800
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miles away in Guatemala and were clearly not available to
assume immediate custody of Child.
___________________________________________________
31
42 Pa. C.S. § 6351(a)(2).
32
The parties stipulated that the recommended follow-up care
did not occur. Tr. 30:14-31:18 (May 22, 2015).
33
Tr. 109;2-112:7 (Casa San Jose Supervisor, Sister Janice);
and, Tr. 155:15-156:7 (Casa San Jose Staff Member, Grace
Muller).
34
In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002).
Trial Court Opinion, 11/20/15, at 13-14.
After careful review of the record in this matter, for the reasons set
forth by the trial court, we find no abuse of the trial court’s discretion in
finding that Child was dependent for lack of a parent, guardian, or legal
custodian under § 6302(1) of the Juvenile Act.
In the May 30, 2015 order, the trial court found that it is not in Child’s
best interests to be removed from the United States and returned to
Guatemala. The trial court resolved the issue of dependency in this case in
accordance with its obligation to determine the best possible result for Child
to insure that his long-term physical needs and essential medical care will be
met. The trial court’s decision to determine dependency and allow for Child
to have an appointed caregiver allows the caregiver to make important
medical decisions for Child. The record presented clear and convincing
evidence of dependency as a matter of law, as Child was without a parent or
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legal guardian who can provide for his needs and well-being. Accordingly, we
affirm the order of the trial court.3
Order affirmed. Motion to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
3
Adult cousin filed a motion to quash the appeal, arguing that CYF is not an
aggrieved party and that its Rule 1925(b) statement was too vague to
permit review. We summarily deny the motion.
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