Opinion
J. A32014/16 No. 1785 EDA 2016
02-10-2017
IN THE INTEREST OF: T.C., A MINOR APPEAL OF: T.C., A MINOR
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 12, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-DP-0000019-2015 FID: NO. 15-FN-000010-2015 BEFORE: DUBOW, RANSOM AND PLATT, JJ. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
Appellant, Jeremiah F. Kane, Esq. ("Attorney Kane"), appeals the May 12, 2016 Order entered in the Court of Common Pleas of Chester County that denied Attorney Kane's Challenge to the Hearing Officer's Recommendation and vacated his appointment as Guardian Ad Litem ("GAL") in a dependency proceeding. After careful review, we affirm.
A detailed recitation of the factual and procedural history is unnecessary to our disposition. In sum, on March 16, 2015, the Chester County Department of Children, Youth, and Families ("Agency"), filed a Dependency Petition alleging that T.C. ("Child") was truant. The trial court had previously appointed Attorney Kane to be both the Child's attorney and the Child's GAL. Order, dated 3/13/15. On April 14, 2015, the trial court adjudicated the Child dependent due to the Child's truancy. See 42 Pa.C.S. § 6302. At that time, the Child was sixteen years old and pregnant with her second child. During this proceeding, Attorney Kane represented the Child in a dual role as the Child's attorney and GAL.
On April 20, 2015, Attorney Kane motioned the trial court to appoint an attorney for the Child due to a conflict of interest - the Child wanted to remain at home and Attorney Kane believed it was in the Child's best interest for the Agency to place the Child outside of her home. See Motion, dated 4/20/15. On April 24, 2015, the trial court retained Attorney Kane as the Child's GAL and appointed Gabriel Preston, Esq. ("Attorney Preston"), to represent the Child as her attorney. See Order, dated 4/24/15.
This Motion is dated April 20, 2015, but was not docketed until May 4, 2015.
This Order is dated April 24, 2015, but was not docketed until May 4, 2015.
In May of 2015, the Agency placed the Child at Pinkney's Vineyard of Faith Ministries Home ("PVFM") for pregnant teens and mothers.
On February 22, 2016, a hearing officer conducted a permanency review hearing. At the time of the hearing, the Child was still placed at PVFM; her youngest child lived with her and her oldest child did not. Attorney Kane argued that the Child should stay in placement and that her oldest child should come to live with her in placement. Attorney Preston advocated for the Child to return home.
At the end of the hearing, Attorney Preston argued that the Child did not need both a GAL and an attorney. N.T. Hearing, 2/22/16, at 65. Attorney Kane maintained that both the GAL and attorney were necessary because they were advocating for different things. Id.
The hearing officer stated on the record, "I'm going to vacate the GAL, counsel to remain[.]" Id.
On March 3, 2016, the trial court accepted the hearing officer's recommendations and entered an Order, inter alia, removing Attorney Kane as the Child's GAL and ordering Attorney Preston to remain as the Child's attorney. On March 7, 2016, Attorney Kane filed a Challenge to the Recommendation Vacating the GAL ("Challenge"). On March 10, 2016, the trial court denied Attorney Kane's Challenge as untimely pursuant to Pa.R.J.C.P. 1191(C). On March 18, 2016, Attorney Kane filed a Motion for Reconsideration. On April 21, 2016, the trial court held a hearing addressing Attorney Kane's Challenge and on May 12, 2016, the trial court denied the Motion for Reconsideration.
Attorney Kane appealed his removal as the Child's GAL. Both Attorney Kane and the trial court complied with Pa.R.A.P. 1925.
Attorney Kane raises the following issues on appeal:
1. Even if the optional remedy of requesting the Judge to find error with the Master's Recommendations was properly found to be
untimely, did the [t]rial [c]ourt abuse its discretion and err in removing [Attorney Kane] as the [GAL] in the [Child]'s Dependency matter, without notice or written motion from the party requesting said action and without any statutory authority for the [c]ourt to remove a [GAL] leaving her only represented by her attorney thereby leaving no one to advocate for the best interests of the [Child?]Attorney Kane's Brief at 6 (reordered for ease of disposition).
2. Did the [t]rial [c]ourt abuse its discretion and err in dismissing the Child's Motion/Challenge to Master's Findings and Recommendations based on untimeliness as Kane, in fact, complied with the three (3) day time period to file under the requirements of Pa.R.J.C.P. 1191 and in light of the fact that there was no entry on the docket that the Recommendation was ever served on Kane and that no 231 Pa. Code Rule 236(b) notice was given and, as a result, the three day period for him to challenge the Master's findings and Recommendations never began?
We review a trial court's decisions in a child dependency proceeding for an abuse of discretion. In re E.P., 841 A.2d 128, 131 (Pa. Super. 2003). "We must accept the facts as found by the trial court unless they are not supported by the record." Id. (quotation and citation omitted). It is our responsibility to ensure that the trial court has applied the appropriate legal principles to the record while still affording great weight to the court's fact-finding function, as the trial court is in the best position to observe and rule on the credibility of the parties and witnesses. Id.
When determining the role of an attorney, the Pennsylvania Rules of Juvenile Court Procedure ("Rules of Juvenile Procedure") focus, inter alia, on whether the basis for the adjudication of dependency is for status offenses or a parent's failure to provide proper care and control. Pa.R.J.C.P. 1151. When the basis for the adjudication of dependency is for status offenses, the court must appoint an attorney to advocate for a child's legal interests, which in the context of a dependency proceeding is essentially a child's wishes, even if that child's wishes are in opposition to that child's best interests. Pa.R.J.C.P. 1151(B) and (C).
Status offenses are defined as "conduct which if engaged in by an adult would not be legally prohibited." In the Interest of R.B., 621 A.2d 1038, 1042 n.11 (Pa. Super. 1993) (citations omitted). The 1977 amendments to the Juvenile Act reclassified status offenses as dependency rather than delinquency matters. Id. at 1042. Examples of status offenses include truancy, running away, and ungovernability. Id.
In contrast, if the basis for the dependency determination is that a child is without proper parental care and control, the trial court is required to appoint a GAL to advocate for that child's wishes and that child's best interests. Pa.R.J.C.P. 1151(A).
We note that if a child's wishes conflict with the GAL's belief of the best interests of that child, the GAL has a conflict and the court may separate the representation by retaining the GAL to act solely as the child's attorney and appointing a new GAL. Pa.R.J.C.P. 1151 cmt.
The reason for the distinction is that when a dependency petition alleges status offenses, a child's conduct is at issue and consequently that child needs to have an attorney representing that child's legal interests and wishes to the court. When the basis for the dependency proceeding is the failure of a child's parents to provide proper parental care and control, the focus of the hearing is on the parents' conduct and it may be sufficient for the court to appoint a GAL to represent that child's wishes and best interests without conflict.
Attorney Kane first argues that the trial court abused its discretion when it removed him as the Child's GAL without notice or written motion. Attorney Kane's Brief at 20. This issue lacks merit.
We note initially that at the February 22, 2016 hearing, before the hearing officer made the recommendation to remove Attorney Kane as GAL in open court, Attorney Kane had notice that Attorney Preston was requesting the removal of the GAL and Attorney Kane had an opportunity to state his position.
Moreover, there is no legal basis to support Attorney Kane's argument that the court must provide written notice before vacating the appointment of a GAL. Because there is no specific statutory requirement that the court provide written notice before vacating the appointment of a GAL, the trial court did not err in vacating Attorney Kane's appointment on the record in open court, after giving parties an opportunity to be heard.
Attorney Kane next argues that the trial court abused its discretion when it removed him as the Child's GAL leaving the Child solely represented by an attorney. See Attorney Kane's Brief at 27. We disagree.
The basis for the adjudication of dependency in this case was the Child's truancy, which is a status offense. See In the Interest of R.B., supra at 1042. Consequently, the Rules of Juvenile Procedure only require the appointment of an attorney to represent the Child's legal interests and wishes. Pa.R.J.C.P. 1151(B).
Moreover, the Rules of Juvenile Procedure do not mention the need for a GAL when the basis for adjudication is a status offense and thus, the Rules do not authorize the appointment of one. Id. Further, when the basis for adjudication is a status offense, we are confident that the trial court, who hears the evidence in its totality, is capable of determining the best interests of a child without a GAL. Therefore, the trial court did not abuse its discretion when it vacated the appointment of Attorney Kane as GAL.
Attorney Kane finally argues that the trial court abused its discretion when it dismissed Attorney Kane's Challenge as untimely. Attorney Kane's Brief at 20. We disagree.
The Honorable Ann Marie Wheatcraft, sitting as the trial court judge, authored a thorough and well-reasoned opinion, citing to the record and relevant authority in addressing Attorney Kane's claim that his Challenge was timely. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's opinion which concluded that: (1) Attorney Kane received the recommendation to vacate the GAL on February 22, 2016, when the hearing officer announced it on the record in open court; (2) the Rules of Juvenile Procedure gave Attorney Kane three business days after he received the recommendation to file a challenge; (3) Attorney Kane was required to file a timely challenge by March 1, 2016; and (4) Attorney Kane did not file his Challenge until March 7, 2016, rendering it untimely. See Trial Court Opinion, filed 7/1/16, at 3-6.
The parties are instructed to annex the trial court's July 1, 2016 Opinion to any future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/10/2017
Appellee's request for attorney's fees summarily asserted in Appellee's Brief is denied.
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