Opinion
1353 WDA 2023 J-A09004-24
09-25-2024
IN THE INTEREST OF: G.G.B., A MINOR APPEAL OF: J.B., MOTHER
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered November 8, 2023 In the Court of Common Pleas of Allegheny County Juvenile Division at No(s): CP-02-DP-0000410-2023
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
DUBOW, J.
J.B ("Mother") appeals from the November 8, 2023 order that adjudicated her newborn baby, G.G.B. ("Child"), dependent and granted legal and physical custody of Child to the Allegheny County Office of Children, Youth, and Families (the "Agency"). Mother challenges the trial court's denial of her motion to transfer venue to Fayette County. After careful review, we affirm.
A detailed recitation of the procedural and factual history is unnecessary to our disposition. Briefly, Mother and Child's father, R.B. ("Father"), became known to the Agency in October of 2022 when the Agency received a referral over concerns that the parents were declining to follow parenting and medical advice regarding Child's older sibling ("Sibling"), who at the time remained in the Neonatal Intensive Care Unit ("NICU") after a premature birth. The court adjudicated Sibling dependent, granted legal and physical custody to the Agency, and placed Sibling in foster care in Allegheny County where Sibling remains.
In August 2023, Mother traveled to West Virginia, in an apparent effort to evade the Agency, and gave birth to Child at West Virginia Children's Hospital in Morgantown, West Virginia. Child was born prematurely, required a breathing machine and a feeding tube, and remained in the NICU after birth. After receiving reports that Mother wanted to remove Child from the NICU against medical advice, the Agency sought emergency protective custody of Child, and the trial court granted a temporary emergency order pending a shelter care hearing.
On August 14, 2023, after a shelter care hearing, the trial court denied the Agency's request for emergency custody of Child finding that Allegheny County did not have jurisdiction over the matter because Child was hospitalized in West Virginia.
On August 15, 2023, the Agency filed an emergency motion for a shelter care re-hearing requesting that the trial court reinstate the emergency custody order because, inter alia, West Virginia Health and Human Services maintains the position that Allegheny County has jurisdiction due to the current open dependency case and the fact that parents reside in Pennsylvania; Parents previously requested to move Sibling's case to Fayette County and the court denied the request; and Fayette County requested that Allegheny County be appointed as the primary investigating agency on the new referral. Motion, 8/15/23, at ¶¶ 7-10. On August 18, 2023, after a hearing, the trial court found that Allegheny County has jurisdiction in this matter and Allegheny County is the appropriate venue based upon the fact that Father resided in Allegheny County and Allegheny County already had a case open with Sibling. N.T. Shelter Hearing, 8/19/23, at 20-25. The court granted emergency custody of Child to the Agency.
We note that Child remained in the hospital in West Virginia at this time. However, on appeal, no party has raised a challenge to the trial court's finding that Allegheny County had personal jurisdiction over Child. Rather, as discussed infra, Mother only challenges venue. "Frequently, the terms jurisdiction and venue are used interchangeably although in fact they represent distinctly different concepts." In re Estate of R. L. L., 409 A.2d 321, 322 n.3 (Pa. 1979). "Jurisdiction denotes the power of the court whereas venue considers the practicalities to determine the appropriate forum." Id. In particular, "[p]ersonal jurisdiction is a court's power to bring a person into its adjudicative process. Moreover, personal jurisdiction is readily waivable." Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016) (citations and internal punctuation omitted). We decline to address whether the court had personal jurisdiction over Child because, as stated above, no party raised this issue for our review.
On August 28, 2023, Mother filed a motion for transfer of venue requesting that the trial court transfer venue from Allegheny County to Fayette County where she resided. On August 30, 2023, the trial court denied Mother's request.
On November 8, 2023, the trial court adjudicated Child dependent and granted legal and physical custody of Child to the Agency. The court noted that Child had been placed in foster care in Allegheny County.
Mother filed a timely notice of appeal. Both Mother and the trial court complied with Pa.R.A.P. 1925.
Mother raises a sole issue for our review: "Did the trial court abuse its discretion and/or err as a matter of law when it adjudicated [Child] dependent pursuant to 42 Pa.C.S. § 6302(a) when venue in Allegheny County was improper as Mother resides in Fayette County, Mother and Father desire the matter to proceed in Fayette County, and [Child] has never been to Allegheny County." Mother's Br. at 11.
When reviewing "a trial court's decision regarding venue, we will not reverse absent an abuse of discretion." Galgon v. Martnick, 653 A.2d 44, 46 (Pa. Super. 1995). "This determination, in turn, depends on the facts and circumstances surrounding each case and will not be disturbed if the trial court's decision is reasonable in light of those facts." Id. at 93.
Mother avers that the trial court erred in denying her motion to transfer venue to Fayette County. Mother's Br. at 11. She argues that the Rules of Juvenile Court Procedure state, inter alia, that a dependency proceeding may be initiated in the county in which the child resides and because Child is a newborn, her residency should be determined by Parent's residency. Id. at 18. Finally, Mother argues that both she and Father currently live in Fayette County and desire the case to proceed in Fayette County. Id. at 25-27.
Additionally, for the first time on appeal, Mother argues that the trial court erred in considering Child's best interest as dispositive of venue. Mother's Br. at 28-32. Mother failed to raise this issue in her Rule 1925(b) statement and, therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the [s]tatement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); 302(a)("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").
The Juvenile Act and the Rules of Juvenile Court Procedure both require the juvenile court to focus on the location of the child, and not the parents, when determining the proper venue for a dependency proceeding. In particular, they provide that a dependency proceeding may be commenced in "(1) the county in which the child is present; or (2) the child's county of residence." Pa.R.J.C.P. 1300(A)(1-2); see also 42 Pa.C.S. § 6321(b)(1, 3). Additionally, the Rules and the Act both allow a court to transfer a case to another county upon motion by a party or sua sponte. See 42 Pa.C.S. § 6321(c)(1); Pa.R.J.C.P. 1300(B). Specifically, Rule 1300(B) states that, "[a]t any time prior to the adjudicatory hearing, for the convenience of parties and witnesses, the court, upon its own motion or motion of any party, may transfer an action to the appropriate court of any county where the action could originally have been brought or could be brought at the time of filing the motion to change venue." Pa.R.J.C.P. 1300(B) (emphasis added).
Upon review, when Mother filed a motion to transfer venue to Fayette County, Child was not present in Fayette County nor residing in Fayette County. Accordingly, based on the plain language of both the Juvenile Act and the Rules of Juvenile Court Procedure, Mother did not meet her burden to demonstrate that venue should be transferred.
Mother asks this Court to expand the language contained in both the Juvenile Act and the Rules of Juvenile Court Procedure-which clearly states that venue in dependency cases is to be based on the location of the Child- and conclude that venue should be based on the location, or residence, of the parents. We decline to do so. Because Mother failed to prove that Child was present in or resided in Fayette County at the time she filed the motion to transfer venue, we conclude that the trial court did not abuse its discretion when it denied Mother's motion to transfer venue to Fayette County.
We acknowledge that Child, likewise, did not live in Allegheny County at the time that Mother filed her motion to transfer venue. However, as explained above, it is not this Court's role to determine whether Allegheny County had personal jurisdiction over Child, as Mother does not raise this issue for our review. Rather, we are limited to considering whether the trial court abused its discretion in denying Mother's motion to transfer venue.
"We may of course affirm the decision of the trial court if the result is correct on any ground without regard to the grounds relied on by the trial court." Mazer v. Williams Bros. Co., 337 A.2d 559, 562 (Pa. 1975).
We respectfully disagree with the concurrence's assertion that "a newborn's residence should be that of the parent" and subsequent conclusion that its position "would not be an 'expansion' of the Juvenile Act or the Rules of Juvenile Court Procedure." See Concurring Memorandum at 4-5. Although the idea that the venue for a newborn should be the residence of a parent instead of the residence of the newborn has common sense advantages, neither the Juvenile Act nor the Rules authorize such a finding. Rather, both the Juvenile Act and the Rules clearly and unambiguously provide that the juvenile court should determine venue according to the location of the child and not the parents. They make no exception for newborns. This Court lacks the authority to re-write the Juvenile Act or the Rules to so provide; only the legislature or the Supreme Court has such authority.
Order affirmed.
Judge Kunselman files a concurring memorandum.
Judge Nichos files a concurring memorandum.
Judgment Entered.
CONCURRING MEMORANDUM
NICHOLS, J.
While I concur in the result reached by the Majority authored by Judge Dubow and agree that the trial court's choice of Allegheny County as venue should be affirmed, I differ with the Majority's analysis and therefore I write separately. First, this matter appears to present an issue of first impression concerning how to determine the residence of a newborn child for purposes of setting proper venue in a dependency proceeding.
As explained in the Majority's memorandum, the Allegheny County Office of Children, Youth, and Families (the Agency) filed an emergency petition for protective custody one day after G.G.B. (Child) was born in West Virginia. See N.T., 8/18/23, at 5-7. Because Child was born prematurely, she remained at the neonatal intensive care unit in West Virginia following her birth. At the time of Child's birth, Child's parents both resided in Pennsylvania, with J.B. (Mother) residing in Fayette County and R.B. (Father) residing in Allegheny County.
Prior to Child being adjudicated dependent, Mother filed a motion to transfer venue from Allegheny County to Fayette County, which the trial court denied. Mother's Mot. to Transfer Venue, 8/28/23; Trial Ct. Order, 8/30/23. Mother filed a timely notice of appeal that this Court quashed as an improper interlocutory appeal. See Interest of G.B., 1193 WDA 2023, Order, 11/3/23. The trial court subsequently adjudicated Child dependent on October 11, 2023. On appeal, Mother challenges the trial court's choice of venue and argues that the trial court erred in commencing dependency proceedings in Allegheny County.
In her prior appeal, Mother complained that "[t]he trial court abused its discretion and/or erred as a matter of law by denying Mother's request to transfer venue to Fayette County," and contended that this was a "substantial issue of venue or jurisdiction" and, in the alternative, that delay in hearing her appeal could cause irreparable loss of an important right. See Interest of G.B., 1193 WDA 2023, Mother's Response to Rule to Show Cause, 10/30/23, at 2-7 (emphasis added).
The Majority memorandum construes Mother's appeal as limited to the denial of her motion to transfer venue. See Majority Mem. at 4. Based on this framing of the issue, the Majority applies Section 6321(c) of the Juvenile Act, regarding transfer of venue, and Pa.R.J.C.P. 1300(B), addressing change of venue, and concludes that "based on the plain language of both the Juvenile Act and the Rules of Juvenile Court Procedure, Mother did not meet her burden to demonstrate that venue should be transferred[,]" as Child has never resided or been present in Fayette County. Id. at 5; Trial Ct. Order, 8/18/23 (finding proper venue in Allegheny County, granting the Agency legal custody of Child, and directing that upon release from the hospital Child shall be placed in the care of foster mother already caring for Child's sibling); N.T. 10/11/23, at 52 (confirming that Child was discharged directly from the hospital into foster care). Further, the Majority declines to address Mother's argument concerning the trial court's application of the "best interests of the child" standard and concludes that Mother waived that issue by failing to raise it before the trial court or include the issue in her Pa.R.A.P. 1925(b) statement. Majority Mem. at 4 n.2.
In the instant appeal, both Mother's 1925(a)(2)(i) statement of errors complained of on appeal and Mother's brief uniformly state that:
[t]he trial court abused its discretion and/or erred as a matter of law when it adjudicated [Child] dependent pursuant to 42 Pa.C.S. § 6302(1) when venue in Allegheny County was improper as Mother resides in Fayette County, Mother and Father desire the matter to proceed in Fayette County, and [Child] has never been in Allegheny County.
Mother's Rule 1925(a)(2)(i) Statement, 11/10/23, and Mother's Brief at 11 (emphasis added). The trial court's opinion is framed in terms of Mother's motion to transfer venue; the reasoning contained therein, however, addresses venue at the commencement of proceedings. See Trial Ct. Opinion, 12/15/23, at 3-5. Further, the briefs of the Agency and Child's guardian ad litem (GAL) address the novel question of choice of venue for a newborn without an established residence, rather than the standard to decide a motion to transfer venue. See Agency's Brief at 11-24, and GAL's Brief at 8-15. Judge Kunselman's concurring memorandum ("Kunselman Concurrence") recognizes that Mother has raised different though overlapping issues in both the prior quashed appeal and the instant appeal. Further, the Kunselman Concurrence defines the issue in this case as "whether venue to conduct a dependency adjudication hearing was proper in Allegheny County." See Concurring Mem. at 4. I agree with the Kunselman Concurrence that the trial court properly looked to the parents' residences to designate a residence for Child. Id. I disagree, however, with the conclusion of the Kunselman Concurrence that the trial court erred in considering factors other than where Mother and Father resided. Id. at 7. Specifically, I disagree that the trial court's consideration of additional factors was the "wrong standard" and "superfluous." Id.
The Kunselman Concurrence notes that neither the Juvenile Act nor the Rules of Juvenile Court Procedure define a child's "residence," and discusses the relevant case law that attempts to provide a working definition. I agree with the Kunselman Concurrence that prior decisions by this Court support the trial court's decision to initially look to the residence of the parents to determine a newborn's residence. Id. at 4-5 (citing In the Interest of J.S.M., 514 A.2d 899 (Pa. Super. 1986); In the Interest of T.T., 1657 EDA 2022, 2022 WL 17755935 (Pa. Super. filed Dec. 19, 2022) (unpublished mem.); Petition of Wagner, 112 A.2d 352 (Pa. 1955)).
See Pa.R.A.P. 126(b) (providing that unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).
However, when a newborn has no established residence, I disagree that venue can be decided solely by asking "where does the child reside" and "where is the child present," as directed by The Juvenile Act's provisions regarding "Commencement of proceedings," without further inquiry. 42 Pa.C.S. § 6321(b). See Concurring Mem. at 7. Here, the answer to these questions, with the residences of Mother and Father standing in as putative residences for Child, are simply Allegheny County and Fayette County, with no effective distinction between them. Following the suggestion of the Kunselman Concurrence, the trial court must choose venue to commence proceedings between facially equivalent options while prohibited from considering relevant factors to distinguish them.
Prior to entry of a dependency order, the trial court has a duty to undertake a "comprehensive inquiry into whether proper parental care is immediately available or what type of care [a parent] could provide in the future." In the Interest of R.W.J., 826 A.2d 10, 14, 16 (Pa. Super. 2003) (appeal of mother from order adjudicating child dependent, where the trial court properly considered mother's parenting of her other children as a prognostic factor) (citation omitted). A central purpose of dependency proceedings pursuant to the Juvenile Act is "[t]o provide for the care, protection, safety and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S. § 6301(b)(1.1) (emphasis added). "Pennsylvania law makes clear that a finding of dependency can be made on the basis of prognostic evidence[.]" R.W.J., 826 A.2d at 14 (citation omitted). We also allow our "experienced juvenile court judge[s] to apply [their] training and compassion to the unique facts of each case." Id. at 15 (quoting Matter of DeSavage, 360 A.2d 237, 242 (Pa. Super. 1976)). We allow consideration of prognostic evidence because to ignore such factors can result in "consequences to the child [that] could be seriously detrimental or even fatal[,]" a result antithetical to the purposes of the Juvenile Act. Id. (citation omitted). The question here is what factors may the trial court consider in choosing venue to commence proceedings for a newborn without an established residence, when such venue is disputed.
To answer this question it is useful to consider T.T., in which this Court permitted consideration of factors beyond the residences of the parents when reviewing a case addressing venue in a pre-adjudication posture. See T.T., 2022 WL 17755935. In T.T., a non-parent filed a private dependency petition, and the child's parents immediately petitioned to intervene and transfer venue prior to the entry of a dependency order. Id. at *2, *3 n.8. Similarly, here, the Agency filed a dependency petition for Child and Mother promptly moved to transfer venue prior to entry of a dependency order. In deciding the preadjudication transfer of venue motion, the T.T. Court relied on In re G.B., 530 A.2d 496 (Pa. Super. 1987), to conclude that it was appropriate for the trial court to inquire "where venue properly lies and where [the child's] best interests can best be served[;]" that is, prior to an adjudication of dependency, it was appropriate for the trial court to consider mental health treatment options for the child in the competing venues, as the child had attempted suicide at a young age. Id. at *1 n.3, *4 (emphasis original). The T.T. Court also noted that recent amendments to the Juvenile Act "make clear that the health and safety of the child supersede all other considerations." Id. at *4.
The difference between T.T. and the instant matter is that the child in T.T. had already resided in the two counties under consideration as venue options when the dependency petition was filed, whereas here Child had not established a residence in any venue. Compare id. at *1, *4 with N.T. 8/18/23 at 6, 12. The position set forth in the Kunselman Concurrence seems to focus on T.T.'s procedural posture as a transfer motion, that is, that a best interest query was appropriate in T.T. pursuant to Pa.R.J.C.P. 1302(A), which mandates that intercounty transfer motions be reviewed under a best interest standard. It is important to recognize, however, when providing guidance to the trial court here, that T.T. addressed venue in a pre-adjudication posture, even though Rule 1302(A) provides for application of the "best interest of the child" considerations "[a]ny time after the adjudicatory hearing[.]" Pa.R.J.C.P. 1302(A) (emphasis added); see also T.T., 2022 WL 17755935, at *2, n.8. That is, the T.T. Court allowed the best interest of the child to be considered prior to an adjudication of dependency.
Contrary to the fact-specific approach in the pre-adjudication matter in T.T., the Kunselman Concurrence finds that the trial court here should only consider the location of parents' current residences as factors in setting venue. Compare Concurring Mem. at 5-6 (finding only that "a newborn resides where the parents reside") with Mother's Brief at 24-25 (the trial court should take into account parents' intent or settled purpose with regard to residence in identifying Child's residence), Appellee's Brief at 18-24 (in setting venue, the trial court should be permitted to take into account that Allegheny County is better positioned to care for Child), and GAL's Brief at 12-15 (the trial court should be permitted to take into account the timeliness and quality of dependency services available to Child and Child's family in the different venues). Further, in avoiding the "best interest of the child" standard, the Kunselman Concurrence would bar consideration of such factors as: that Child has a sibling already in the care of the Agency, that the Agency is familiar with and currently providing services to Child's parents and addressing the needs of the family unit, or that transfer to a different county would cause a delay in providing services to Child. Compare Concurring Mem. at 7 with N.T., 8/18/23, at 8, 23-24. If the trial court is barred from examining parents' intentions or desires with regard to these residences or taking into account other fundamental facts in the record that affect Child's immediate and future welfare and safety, I do not see how an appropriate choice can be made between these two facially equivalent options to set venue.
As the Juvenile Act provides an overarching directive to "provide for the care, protection[,] and safety" of Child, the trial court should have the means to achieve this goal. 42 Pa.C.S. § 6301(b)(1.1). Here, this involves allowing consideration of factors likely to impact the care, protection, and safety of Child. We need not explicitly adopt a "best interest of the child" standard of review in order to provide direction for the trial court here. Instantly, the record supports the trial court's finding that setting and sustaining venue in Allegheny County was proper in that this county is where the care, protection, and safety interests of Child, as a newborn, can best be served in the pending dependency proceedings. Accordingly, the trial court acted appropriately within its discretion in considering the relevant factors to support its decision to commence dependency proceedings in Allegheny County and denying Mother's motion to transfer venue to Fayette County. See 42 Pa.C.S. § 6301(b)(1.1); R.W.J., 826 A.2d at 14-16; G.B., 530 A.2d at 499; T.T., 2022 WL 17755935, at *2.
The Kunselman Concurrence mistakenly characterizes my position as an endorsement of the "best interest of the child" standard of review to decide venue. It is not.
For these reasons, I concur in the decision of the Majority to affirm the trial court's orders adjudicating Child dependent and denying Mother's motion to transfer of venue to Fayette County.
The trial court's order granting DHS's shelter care petition set venue in Allegheny County, and by affirming the dependency order this Court implicitly affirms the shelter care order which set venue.
CONCURRING MEMORANDUM
KUNSELMAN, J.
I agree with the juvenile court's determination that Allegheny County was a proper venue for the instant dependency proceedings, and thus I concur with the Majority's disposition of this case. I write separately because I disagree with my Colleagues' analysis of venue. For purposes of venue, I would hold that the residence of a newborn who has not left the hospital should be determined by the residence of the newborn's parents. Here, because Father resided in Allegheny County at the commencement of the dependency proceedings, I conclude that the Child was a resident of Allegheny County. Thus, I would hold that venue was proper under 42 Pa.C.S. § 6321(b)(1) and Pa.R.J.C.P. 1300(A)(2).
At the outset, it is necessary to clarify the precise question Mother asks us to resolve. Initially, Mother filed a motion requesting that the case be transferred from Allegheny County to Fayette County, where Mother resided. See Pa.R.J.C.P. 1300(B) (providing for transfer prior to the adjudicatory hearing). The juvenile court denied Mother's request, and she appealed the denial of the transfer. See 1193 WDA 2023. This Court quashed the appeal after ruling that it was interlocutory and not otherwise appealable. Simply put, Mother had to wait until after the dependency adjudication. The Child was then adjudicated dependent in Allegheny County, and Mother appealed again. See 1353 WDA 2023.
Mother's position - then and now - is that the Child's dependency case belongs in Fayette County. However, the issue Mother presented in her first appeal is not the same issue presented in the instant matter. In her first appeal, Mother challenged the denial of her request to transfer the case from Allegheny County to Fayette County. But in this, her second appeal, Mother challenges venue in Allegheny County., The difference between the two challenges is quite subtle. The Majority overlooked this subtlety, and its analysis is flawed as a result. For its part, the Concurrence authored by Judge Nichols seemed to note the distinction as I do, only to commit the same mistake and conflate the standard for "venue" with the standard for "transfer." I discuss my disagreement with each of my colleagues' analysis in turn.
In her Concise Statement of Matters Complained of on Appeal, 9/29/2023, filed in 1193 WDA 2023, Mother alleged: "The trial court abused its discretion and/or erred as a matter of law by denying Mother's request to transfer venue to Fayette County, where Mother resides and Father wishes the matter be heard, when the newborn has never been in Allegheny County."
In her Concise Statement of Matters Complained of on Appeal, 11/30/23, filed in 1353 WDA 2023, Mother alleged: "The trial court abused its discretion and/or erred as a matter of law when it adjudicated G.B. dependency pursuant to 42 Pa.C.S.A. § 6302(1) when venue in Allegheny County was improper as Mother resides in Fayette County, Mother and Father desire the matter to proceed in Fayette County, and G.B. has never been in Allegheny County."
I am careful not to construe Mother's instant appeal as a second bite at the apple. Mother properly objected to venue at the August 2023 shelter hearing, and any prior appeal, directly challenging venue in Allegheny County, would have been interlocutory.
The Majority frames this appeal as a question of pre-adjudication intercounty transfer under Rule 1300(B). Under Rule 1300(B), the transfer from Allegheny County to Fayette County would have been proper if the dependency proceeding could have been commenced in Fayette. According to the Majority, because the Child neither resided in Fayette County, nor was present there, a transfer under Rule 1300(B) would have been improper, and the trial court was right to deny Mother's request.
Notably, under this reasoning, the Majority would conclude that Allegheny County was also an improper venue. But by framing this appeal as a transfer case, the Majority can sidestep the question of the Child's residence: If venue was improper in both Fayette and Allegheny, then where would venue be proper - i.e., where was the Child a resident? See Majority Memorandum at 5; 6 n.3 ("Rather, we are limited to considering whether the trial court abused its discretion in denying Mother's motion to transfer venue."). Thus, the Majority was able to affirm the juvenile court without having to decide where this Child resided or how a newborn's residency should be determined generally; for the Majority, it sufficed to say that Mother did not meet her burden of proof that the case should be transferred to Fayette County. See id at 6, n.3-4. In reaching this conclusion, the Majority addressed the question from the prior appeal - 1193 WDA 2023 - not the question at issue here.
In this appeal, the simple question Mother asks us to resolve is whether venue to conduct a dependency adjudication hearing was proper in Allegheny County. The Juvenile Act provides that a dependency proceeding may be commenced in either the county in which the child resides or the county in which the child is present. 42 Pa.C.S.A. § 6321(b)(1), (3). The Rules of Juvenile Court Procedure provide the same. See Pa.R.J.C.P. 1300(A)(1)-(2).
All agree that the Child was never present in Allegheny County. The issue we must decide is whether Allegheny County could be considered the Child's residence. Mother argued that we should find that a newborn, who has not left the hospital, has a residence where the newborn's parent resides. Without defining what constitutes a child's residence, the Majority concludes that Mother's definition is incorrect: "Mother asks this Court to expand the language contained in both the Juvenile Act and the Rules of Juvenile Court
Procedure[.]" See Majority Memorandum at 5. Arguably, the Majority would find that this Child has no residence. This would mean that the only place a dependency action could be commenced, for a hospitalized newborn, is the county where the hospital is located. I do not believe this is what the Legislature intended.
I generally agree with Mother's position; a newborn's residence should be that of the parent. This would not be an "expansion" of the Juvenile Act or Rules of Juvenile Court Procedure. Rather, such a conclusion tracks with logic and precedent. Noting the absence of a definition in the Juvenile Act, our dependency case law has defined "residence" as:
Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.
In Interest of J.S.M., 514 A.2d 899, 900 (Pa. Super. 1986) (quoting Black's Law Dictionary 1176 (rev. 5th ed. 1979)).
"Residence" is compared and distinguished from "domicile" in the following manner: "Residence usu[ally] just means bodily presence as an inhabitant in a given place; domicile usu[ally] requires bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously."Interest of T.T., 290 A.3d 689, at *4, n.10 (Pa. Super. 2022) (non-precedential decision) (discussing J.S.M.) (quoting Black's Law 1176 Dictionary (rev. 11th ed. 2019)).
This definition only goes so far, given that the instant case concerns a newborn and does not involve intercounty transfers under 42 Pa.C.S.A. § 6321(c) or Pa.R.J.C.P. 1300(B), 1302(A). Although domicile and residence cannot be used interchangeably, I observe our Supreme Court's declaration:
The domicile of an infant is established by the acts and intention of the one who is entitled to the custody and control thereof. This doctrine means not more ordinarily than that the residence of the infant is that of its father, mother, or other natural guardian.
Petition of Wagner, 112 A.2d 352, 354-55 (Pa. 1955) (emphasis added).
I can envision instances where a parent's residence and the child's residence might not be one and the same. But a newborn in the NICU? Surely, this Child did not reside at the hospital. I do not believe we would be expanding the statute or rewriting the rules if we held that a newborn resides where the parents reside, especially when those parents' rights to that baby remain intact and unencumbered. In my view, such a holding would be aligned with precedent and common sense.
If my analysis is incorrect, then this Child - and other newborns who are removed from their parents' care before the parents take the baby home from the hospital - have no residence at all. We must not avert our eyes from the effect that such a holding would have on the at-risk children across the Commonwealth, many of whom test positive for illicit drugs at birth and whose dependency proceedings commence immediately thereafter. Are we saying that the only place these newborns may be adjudicated dependent is in the county where they were born?
As applied to this case, I agree with the Majority insofar as I would also conclude that Mother merits no relief. Mother resided in Fayette County; she is correct that Fayette would have also been a proper venue. However, at the time of the commencement, Father resided in Allegheny County, albeit it briefly. I would conclude that Father's residency was sufficient to find that the Child resided in Allegheny County for purposes of 42 Pa.C.S.A. § 6321(b)(1) and Pa.R.J.C.P. 1300(A)(2). Thus, although the juvenile court could have determined that the case belonged in Fayette County, the court did not err when it determined that Allegheny County was a proper venue.
The Nichols Concurrence would not use the standard I have described above. In her view, the Rules of Juvenile Court Procedure authorize the trial court to consider the best interests of the Child when deciding venue. Respectfully, the Nichols Concurrence also conflates the difference between "venue" (i.e., where the case can be commenced) and "transfer" / "change in venue" (where the case can - indeed, should - be litigated). Multiple counties can have "venue" in the first instance. Now, whether said venue is inconvenient - or, whether transfer to another venue might be more appropriate - is a separate question, one where the child's best interests may properly be considered.
Although a child's best interests may be considered, in conjunction with the child's residence, when determining whether the case should be transferred, courts only apply this standard in transfer cases under 42 Pa.C.S.A. § 6321(c). See, e.g., In re G.B., 530 A.2d 496, 499 (Pa. Super. 1987); see also J.S.M., supra; T.T., supra; and see Pa.R.J.C.P. 1302(A). The instant case turns on Section 6321(b)("Venue"), which only asks (for purposes of dependency proceedings) two questions: where does the child reside; and where is the child present. See 42 Pa.C.S.A. § 6321(1), (3). Here, the juvenile court's consideration of the Child's best interests was superfluous. Thus, in the context of this case, its consideration was erroneous but harmless.
I disagree with the Majority's conclusion that Mother waived this part of her argument. In my view, Mother's concise statement, as written, sufficiently captured the subsidiary issue of whether the trial court erred when it considered the Child's best interests as part of its venue analysis. See Pa.R.A.P. 1925(b)(4)(v) ("Each error identified in the Statement will be deemed to include every subsidiary issue that was raised in the trial courts."). Besides, Mother could not have known the court would consider the Child's best interest until after the court issued its Rule 1925(a) opinion which came in response to Mother's filing of the concise statement.
For these reasons, I concur.