In the Int. of: J.L., Appeal of: J.L.

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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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