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holding "where a parent has been given proper notice of an adjudicatory hearing and of the parent's right to counsel, the juvenile court need not delay proceedings further to conduct an in-person colloquy of a parent's right to counsel"
Summary of this case from In re M.D.Opinion
No. 888 MDA 2017
02-21-2019
In the INTEREST OF: S.U., a Minor Appeal of: R.U., Father
H. Allison Wright, Lancaster, for appellant. Courtney J. Restemayer, Lancaster, for Lancaster County CYS, appellee. Jeffrey Gonick, Leola, Guardian Ad Litem, for appellee.
H. Allison Wright, Lancaster, for appellant.
Courtney J. Restemayer, Lancaster, for Lancaster County CYS, appellee.
Jeffrey Gonick, Leola, Guardian Ad Litem, for appellee.
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and McLAUGHLIN, J.
OPINION BY NICHOLS, J.:R.U. (Father) appeals the order adjudicating his minor son, S.U. (Child), dependent, maintaining Child's placement in foster care, setting Child's permanency goal to adoption, and terminating Father's visitation. Father also appeals a separate order entered the same day, which found aggravated circumstances and directed that the Lancaster County Children and Youth Social Service Agency (the Agency) make no efforts to reunify Child with Father. We affirm.
K.U. (Mother) did not separately appeal, but filed an "appellee's" brief supporting Father's appeal.
We discourage the practice of filing one notice of appeal from two final orders, but decline to quash. See generally Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co. , 437 Pa. 463, 263 A.2d 448, 452-53 (1970) (holding "that a single appeal is incapable of bringing on for review more than one final order, judgment or decree" except when circumstances permit appropriate appellate review); Dong Yuan Chen v. Saidi , 100 A.3d 587, 589 n.1 (Pa. Super. 2014).
The relevant factual and procedural history of this case follows. On April 12, 2017, the Agency filed a dependency petition and a petition for temporary custody of Child. In its dependency petition, the Agency stated that Father and Mother (collectively, Parents) have a protracted history with the Agency. See Dependency Pet., 4/12/17, at Allegations of Dependency ¶ F. Specifically, the Agency asserted that two of Parents' younger sons, J.U.1 and J.U.2, were already dependent. Id. On May 18, 2016, Parents voluntarily relinquished their parental rights to J.U.1, and their parental rights to J.U.2 were terminated involuntarily on March 28, 2017. Id.
The Agency further stated that it received a referral regarding Child on March 27, 2017, which alleged that Child suffered from poor hygiene and that Mother was using illegal substances, including cocaine. Id. at ¶ A. Following an investigation, the Agency discovered that Child was living with Parents in a one-bedroom apartment "with a mattress that the family share[d]." Id. at ¶ D. On April 5, 2017, Courtney Ross, a caseworker for the Agency, made an unannounced home visit. Id. at ¶ C. Parents refused a random drug screen. Id. On a subsequent unannounced visit, on April 7, 2017, Father submitted to a drug screen and tested negative. Id. at ¶ D. Mother tested positive for THC and cocaine. Id.
Tetrahydrocannabinol.
On April 12, 2017, the Honorable Jay J. Hoberg entered an order granting the petition for temporary custody and placing Child in foster care. See Order, 4/12/17. The order scheduled a hearing for April 13, 2017, and appointed H. Allison Wright, Esq., to represent Father, David Peiffer, Esq., to represent Mother, and Jeffrey Gonick, Esq., to represent Child as guardian ad litem (GAL). Id. Attached to the order was a notice, which provided, in relevant part, the following:
THE LAWYER APPOINTED FOR YOU WILL REPRESENT YOU, WITHOUT CHARGE, ONLY AT THE FIRST SCHEDULED HEARING. THIS LAWYER HAS BEEN PROVIDED A COPY OF THIS PETITION AND WILL BE PRESENT AT THE HEARING. IT IS YOUR RESPONSIBILITY TO CONTACT THE LAWYER PRIOR TO THE HEARING.
IF YOU WISH TO HAVE A LAWYER AFTER THE FIRST HEARING, AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE[ ] SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Notice, 4/12/17 (emphasis in original). The notice further provided a list of documents Father needed to provide to obtain a court-appointed attorney. See id.
On April 13, 2017, the court continued the hearing to April 18, 2017, due to the unavailability of the GAL and counsel for Parents. We have included below the order and notice, which indicates that Father was served individually.
On April 18, 2017, Judge Hoberg conducted the shelter care hearing. Due to Parents' failure to attend the hearing, the court permitted counsel for Parents to withdraw. On May 1, 2017, Judge Hoberg entered a shelter care order finding it was not in the best interest of Child to return to the Parents' home, legal and physical custody should remain with the Agency, and visitation should continue as scheduled, subject to a negative drug screen. See Shelter Care Order, 5/1/17. The order included an attachment, which notified Parents that their respective attorneys had withdrawn their appearances due to their failure to appear at the hearing. Id. Specifically, the attachment included a notation indicating that Father was served individually. Id. The attachment further directed Parents to make an appointment to re-qualify for counsel for their next scheduled hearing if they wished to have counsel represent them at said hearing. Id. We have included the order and attachment below.
On May 2, 2017, the Honorable Thomas B. Sponaugle conducted a dependency hearing. Parents failed to attend, and no counsel appeared on Parents' behalf. At the hearing, Ross testified as to the averments in the dependency petition. See N.T., 5/2/17, at 5-16. Ross further testified that the "Agency continue[d] to have concerns with substance abuse as this has been an ongoing issue for the family," Child's hygiene, and Parents' inability to provide for Child's needs or maintain a stable environment. Id. at 8. She stated that there were also some concerns that Child could have a mental health issue, but that Parents did not address those concerns. Id. at 11-12.
Ross stated that there were aggravating circumstances due to Parents' parental rights being involuntarily terminated as to J.U.2. Id. at 5, 9. She explained that Parents were given a child permanency plan as to J.U.1 and J.U.2 and that they did not complete the objectives. Id. 8-9. She added that the concerns that led to the placement of J.U.1 and J.U.2 had not been alleviated. Id. at 11. Ross indicated that she attempted to discuss the permanency plan for Child with Parents but could not reach them by phone or in person at their apartment. Id. at 9. She testified that she was able to speak with Parents on May 1, 2017, the day before the hearing, when she personally served them with the notice of the hearing and they indicated that "they would come early to discuss the case with me." Id. at 9-10.
Ross further testified that during the time of the Agency's involvement with J.U.1 and J.U.2, Parents told the Agency that Child lived with maternal grandmother. Id. at 10. She stated that had the Agency known that Child was actually residing with Parents it would have sought to place Child at the same time as it placed J.U.1 and J.U.2. Id. at 11.
Finally, Ross stated that Child is adjusting well in the new resource home with maternal aunt. Id. at 15. Child is very excited to have his own bed and his own space. Id. Child "also had indicated to me that he did not feel safe going outside of where he was living with [P]arents, so he enjoys being able to play in the driveway and being able to play in a yard." Id. Currently, Child is placed with his two youngest siblings and has visitation with the rest of his siblings as maternal grandmother and aunt have a close relationship. Id. at 14.
On May 4, 2017, Judge Sponaugle entered an order adjudicating Child dependent, maintaining his placement in foster care, setting his permanency goal as adoption, and terminating Father's visitation. See Order, Adjudication and Disposition, 5/4/17. Judge Sponaugle entered a separate order that same day, finding aggravated circumstances due to the involuntary termination of Parents' parental rights to J.U.2., and directing that no efforts be made to reunify the family. See Order, Aggravated Circumstances, 5/4/17.
The order set a concurrent goal of placement with a permanent legal custodian. Order, Adjudication and Disposition, 5/4/17.
Father obtained court-appointed counsel and, on June 1, 2017, filed a single timely notice of appeal from both orders and a Pa.R.A.P. 1925(a)(2)(i) statement.
The court re-appointed H. Allison Wright, Esq., to represent Father on appeal.
This Court granted en banc consideration in this matter to address whether the trial court properly notified Father of his right to representation during a dependency hearing and withdrew this Court's prior memorandum. See Order, 2/12/18. Accordingly, we address this issue before resolving the merits of Father's underlying appeal.
The Agency claims that Section 6337 of the Juvenile Act requires the trial court to colloquy a party and appoint counsel, if the party appears at a hearing . See Agency's Brief at Ex. A, at 1. The Agency further claims that Rule 1151(E) of the Pennsylvania Rules of Juvenile Court Proceedings requires that the trial court appoint counsel to a party if counsel is requested. Id. The Agency reasons that "[i]t is evident from the text of the applicable statu[t]es and rules that a party must appear at the hearing to trigger the court's affirmative duty to notify the party of their right to counsel and colloquy the party as to whether they wish to be represented." Id. at Ex. A, at 2.
Finally, the Agency claims that the "panel's decision negatively impacts public policy and frustrates the purpose of federal and state statutes dictating timely permanency for children in foster care." Id. at Ex. A, at 5-6. It states that it is common that parents fail to appear for hearings despite receiving proper notice. Id. Further, the Agency asserts that requiring the court to continue hearings until the parents appear in person and then inquire into their desire to have counsel will significantly delay the completion of six-month permanency hearings required by 42 Pa.C.S. § 6351(e). Id.
Father did not file a supplemental brief addressing the issue for which this Court granted reargument.
Section 6337 of the Juvenile Act recognizes that "there exists in parents a right to counsel in dependency cases," In re N.B. , 817 A.2d 530, 535 (Pa. Super. 2003) (citation omitted), and provides:
[A] party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party other than a child appears at a hearing without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel.
Pennsylvania Rules of Juvenile Court Procedure address the procedural process in exercising the right to counsel. In construing the Pennsylvania Rules of Juvenile Court Procedure, the object of their interpretation is "to effectuate the purposes stated in the Juvenile Act, 42 Pa.C.S. § 6301(b)." Pa.R.J.C.P. 1101(C). Further, these rules "shall be construed to secure uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Pa.R.J.C.P. 1101(B). Rule 1101(D) provides that "[t]o the extent practicable, these rules shall be construed in consonance with the rules of statutory construction." Pa.R.J.C.P. 1101(D).
Section 6301(b) sets forth the following purposes:
(1) To preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained.
(1.1) To provide for the care, protection, safety and wholesome mental and physical development of children coming within the provisions of this chapter.
* * *
(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare, safety or health or in the interests of public safety, by doing all of the following:
(i) employing evidence-based practices whenever possible and, in the case of a delinquent child, by using the least restrictive intervention that is consistent with the protection of the community, the imposition of accountability for offenses committed and the rehabilitation, supervision and treatment needs of the child; and
(ii) imposing confinement only if necessary and for the minimum amount of time that is consistent with the purposes under paragraphs (1), (1.1) and (2).
(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.
42 Pa.C.S. § 6301(b).
Regarding statutory construction, the Pennsylvania Supreme Court has stated that
the plain language of a statute is in general the best indication of the legislative intent that gave rise to the statute. When the language is clear, explicit, and free from any ambiguity, we discern intent from the language alone, and not from the arguments based on legislative history or "spirit" of the statute. We must construe words and phrases in the statute according to their common and approved usage. We also must construe a statute in such a way as to give effect to all its provisions, if possible, thereby avoiding the need to label any provision as mere surplusage.
C.B. v. J.B. , 65 A.3d 946, 951 (Pa. Super. 2013) (citation omitted).
With those principles in mind, we state Pennsylvania Rule of Juvenile Court Procedure 1151(E):
E. Counsel for other parties. If counsel does not enter an appearance for a party , the court shall inform the party of the right to counsel prior to any proceeding. If counsel is requested by a party in any case , the court shall assign counsel for the party if the party is without financial resources or otherwise unable to employ counsel. Counsel shall be appointed prior to the first court proceeding.
Pa.R.J.C.P. 1151(E) (emphases added). The comment to Rule 1151(E) states:
Pursuant to paragraph (E), the court is to inform all parties of the right to counsel if they appear at a hearing without counsel. If a party is without financial resources or otherwise unable to employ counsel, the court is to appoint counsel prior to the proceeding. Because of the nature of the proceedings, it is extremely important that every "guardian" has an attorney.
Therefore, the court is to encourage the child's guardian to obtain counsel. Pursuant to [Pa.R.J.C.P.] 1120, a guardian is any parent, custodian, or other person who has legal custody of a child, or person designated by the court to be a temporary guardian for purposes of a proceeding.
Pa.R.J.C.P. 1151 cmt. (emphasis added).
"We are cognizant that explanatory comments express the opinion of the rules drafting committee and therefore are not binding." Estate of Paterno v. National Collegiate Athletic Assoc. , 168 A.3d 187, 200 n.13 (Pa. Super. 2017) (citation omitted).
Rule 1152(B), which discusses waiver of counsel, provides in relevant part that "a party may waive the right to counsel if: (1) the waiver is knowingly, intelligently, and voluntarily made; and (2) the court conducts a colloquy with the party on the record." Pa.R.J.C.P. 1152(B).
We note that Rule 1152(B) governs waiver of counsel, in which a party "voluntary[il]y relinquish[es] a legal right or advantage." See Waiver, Black's Law Dictionary, 1717 (9th ed. 2009). It does not concern situations when a party fails to exercise their right to counsel, e.g. , attending a hearing and applying for counsel, as in this case.
In sum, it is undisputed that Rule 1151(E) mandates that a parent be appointed counsel prior to the first court proceeding. Pa.R.J.C.P. 1151(E). The remainder of the Rule centers on the notice of a party's right to counsel where counsel has not entered an appearance on that party's behalf. Id. Where counsel has not entered an appearance or where a party appears at a hearing unrepresented, the court must provide notice to the party of his or her right to counsel. Id. Notably, nowhere in Rule 1151(E) does it require that proper notice must be given in person. See id. Here, the court appointed counsel for Father prior to the first hearing as mandated by Rule 1151(E). See Order, 4/12/17; see also Pa.R.J.C.P. 1101(E). The notice attached to the April 12, 2017 order notified Father that counsel had been appointed and that it was Father's responsibility to contact counsel. Notice, 4/12/17. On April 13, 2017, when the trial court rescheduled the hearing, the court notified Father a second time of his right to counsel, and explained that Father was required to contact and cooperate with the attorney and that failure to do so would result in the appointment being vacated. Notice of Hr'g, 4/13/17.
Prior to the scheduled May 2, 2017 dependency hearing, as no counsel had entered an appearance on Father's behalf, the court sent a third notice to Father pursuant to Rule 1151(E). See Shelter Care Order, 5/1/17; see also Pa.R.J.C.P. 1151(E). The court notified Father that counsel had withdrawn her appearance due to Father's failure to appear at the April 18, 2017 shelter care hearing. Shelter Care Order, 5/1/17. The court further notified Father that should he wish to be represented by counsel, he had to make an appointment and re-qualify for counsel. Id. Accordingly, we find that the court complied with Rule 1151(E) by appointing counsel prior to the first court proceeding and by providing notice to Father of his right to representation. See Pa.R.J.C.P. 1151(E) ; see also Notice, 4/12/17, Notice of Hr'g, 4/13/17, Shelter Care Order, 5/1/17.
At the May 2, 2017 dependency hearing, Ross testified that in addition to the written notice, she gave Parents oral notice of the hearing. See N.T., 5/2/17, at 8, 10.
Moreover, we must construe Rule 1151(E) in accordance with the Pennsylvania Rules of Juvenile Court Procedure and statutes setting forth the time periods for conducting hearings. Rule 1404(A) provides that "[i]f a child has been removed from the home, an adjudicatory hearing shall be held within ten days of the filing of the petition." Pa.R.J.C.P. 1404(A). Rule 1409(B) states that "[i]f a child is removed from the home, the court shall enter an adjudication of dependency within seven days of the adjudicatory hearing ...." Pa.R.J.C.P. 1409(B). Pursuant to Rule 1510, "[i]f the child has been removed from the home, the dispositional hearing shall be held no later than twenty days after the findings on the petition ...." Pa.R.J.C.P. 1510. Further, 42 Pa.C.S. § 6351(e) governing permanency hearings provides, in pertinent part, that the court shall conduct permanency hearings "[w]ithin six months of[ ] the date of the child's removal from the child's parent, guardian or custodian" or "[w]ithin 30 days of[ ] an adjudication of dependency at which the court determined that aggravated circumstances exist ...." 42 Pa.C.S. § 6351(e)(3).
These rules clearly emphasize the urgency of deciding these cases promptly to advance the best interests of the minor. See Pa.R.J.C.P. 1404(A), 1409(B), 1510 ; see also 42 Pa.C.S. § 6351(e)(3). Continuing hearings until a parent decides to be present at a hearing simply goes against the Rules of Juvenile Court Procedure, which mandate that these rules be construed to eliminate unjustifiable delay. See Pa.R.J.C.P. 1101(B). Permitting a parent an indefinite period of time to appear in court would render the rules governing prompt hearings meaningless and would force a child to remain in a state of limbo until his or her parent decides to make an appearance in court. See Pa.R.J.C.P. 1404(A), 1409(B), 1510 ; see also 42 Pa.C.S. § 6351(e)(3).
We agree with the Agency that the Rules of Juvenile Court Procedure do not support the proposition that a court must wait indefinitely until the parents of a child decide to appear in court. In the instant case, the provisions of Rule 1152, governing the waiver of counsel do not apply because the central inquiry on these facts is not waiver, but whether Father was aware of the hearing, and of his right to counsel at the hearing; and whether he applied for counsel. Father does not dispute that he received notice of the dependency hearing. In fact, there is sufficient evidence of record that Father was aware of the hearing. See Shelter Care Order, 5/1/17; see also N.T., 5/2/17, at 9-10. Further, the record established that the notice of the hearing provided Father with information as to the office he was required to contact to re-qualify for counsel. See Shelter Care Order, 5/1/17. Father, however, despite receiving proper notice and indicating that he would come prior to the hearing to discuss the case with Ross, see N.T., 5/2/17, at 10, voluntarily chose not to attend the hearing or re-apply for counsel.
See supra note 10.
We note that Father does not dispute receiving notice to any of the proceedings in this matter.
Accordingly, we hold that where a parent has been given proper notice of an adjudicatory hearing and of the parent's right to counsel at such hearing, yet fails to attend or apply for counsel, the juvenile court need not delay the proceedings further to conduct an in-person colloquy of a parent's right to counsel. See Pa.R.J.C.P. 1101(B), 1151(E) ; cf. Pa.R.J.C.P. 1128 (providing that "[t]he court may proceed in the absence of a party upon good cause shown"). Therefore, the court did not err in failing to conduct an in-person colloquy regarding Father's right to counsel.
We now address Father's remaining claims. Father raises the following issues on appeal, which we have reordered below:
1. Whether the [trial c]ourt erred in concluding that the evidence clearly and convincingly established that [C]hild is a dependent child pursuant to the Pennsylvania Juvenile Act at 42 Pa.C.S. § 6302 [.]
2. Whether the [trial c]ourt erred in concluding that it is in the best interest of [C]hild to be removed from the home of Mother and Father[.]
3. Whether the [trial c]ourt erred in terminating visitation for Father[.]
4. Whether Father should be granted another hearing to determine whether he should be granted visitation of [C]hild and whether he should be given a [c]hild [p]ermanency [p]lan with the goal of reunification with [C]hild[.]
5. Whether the [trial c]ourt erred in entering an Aggravated Circumstances Order against Father and concluding that no efforts should be made to preserve the family and reunify [C]hild with Father because his parental rights had been involuntarily terminated with respect to another child[.]
Father's Brief at 10.
Father first claims that there was no testimony regarding his substance abuse. Id. at 17. He further claims that he tested negative for illegal substances. Id. He argues that Ross's testimony that Child "looked like he was wearing unclean clothes and ‘presented with an odor’ " should not be a basis for finding Child dependent. Id. at 18. Father notes that there were no allegations that Child was not attending school on a regular basis, that Child had been abused, or that Father posed a risk to Child's health, safety, or welfare. Id. at 18-19. Father contends that Parents and Child sharing a double mattress on the floor of an unclean apartment alone does not establish Child's dependency. Id. at 19. Instead of taking custody, he argues that the Agency should have presented Parents with a family service plan. Id.
Mother's arguments in her brief are duplicative of Father's. See Appellee, K.U., Mother's Brief at 1-4.
In dependency cases, our standard of review requires us to "accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require [us] to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion." In re E.B. , 83 A.3d 426, 430 (Pa. Super. 2013) (citing In re R.J.T. , 608 Pa. 9, 9 A.3d 1179, 1190 (2010) ).
Section 6302(1) of the Juvenile Act defines a "dependent child" as one who
is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]
42 Pa.C.S. § 6302(1). Further, we have explained that "[t]he question of whether a child is lacking proper parental care or control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper parental care and control, and if so, whether such care and control are immediately available." E.B. , 83 A.3d at 431 (citation omitted). "The burden of proof in a dependency proceeding is on the petitioner to demonstrate by clear and convincing evidence that a child meets that statutory definition of dependency." Id. (citation omitted).
Here, the juvenile court found clear and convincing evidence that Child should be adjudicated dependent, and a review of the record supports this finding. See N.T., 5/2/17, at 16; Order, Adjudication and Disposition, 5/4/17. Child consistently attended school with an odor and unclean clothes. See N.T., 5/2/17, at 8. Child was sleeping on the floor, on a double mattress, which he shared with Parents. Id. The apartment was unclean and Child felt unsafe going outside. Id. at 8, 15. The Agency had a continuing concern with substance abuse in the family. Id. at 8. Although Father's drug screen was negative, Mother, who lives in the residence, tested positive. Id. at 7-8. The Agency also had concerns with Child's mental health and behavior, which Parents never addressed. Id. at 11-12.
It is noteworthy that Father refused a random drug screen on a prior unannounced home visit. See N.T., 5/2/17, at 6.
Further, at all times while the Agency was involved with Parents as to J.U.1 and J.U.2, Parents indicated that Child resided with maternal grandmother. Id. at 10. Due to this false representation, the Agency did not seek placement of Child at that time. Id. at 11. The Agency testified that Parents did not complete the objectives of the permanency plan as to J.U.1 and J.U.2 and that the concerns leading to the placement and termination of the other children had not been alleviated. Id. Child is one of seven children, and all of his siblings have been in foster care since their births or for the majority of their lives. Id. at 5, 13.Moreover, Father has shown a complete lack of interest for Child. See id. He failed to visit Child since Child's placement and did not attend the shelter care hearing, nor the dependency hearing. See id. Father also did not present any evidence to rebut the allegations made in the petition or the testimony presented at the dependency hearing. See Trial Ct. Op., 6/12/17, at 3 (unpaginated).
The trial court found that the evidence presented, in addition to Parents' history with the Agency, makes it evident that Father is unable to provide for Child's needs or maintain a stable environment. See id. at 8; see also In re J.J. , 69 A.3d 724, 731 (Pa. Super. 2013) (finding children were dependent where Father did not rebut the averments in the dependency petition and demonstrated a lack of commitment by not attending the dependency hearing or visiting children). Therefore, the juvenile court did not abuse its discretion in finding there is clear and convincing evidence that Child is without proper parental care and control, as well as holding such care and control are not immediately available. See E.B. , 83 A.3d at 431.
In Father's second, third, and fourth issues, he argues that the court erred in concluding that it was in the best interest of Child to maintain Child's placement in foster care. Father's Brief at 20-21. He claims that because he did not attend the hearing, the court did not know how long Child had been residing with Parents, whether there was a bond between Child and Parents, or what impact Child would suffer should visitation be terminated. Id. Father maintains that rather than "summarily" terminating his visitation with Child, the court could have "scheduled the minimum bi-weekly visits on the condition that Father would need to call the Agency in advance and confirm each visit. The [c]ourt could also have required both parents to submit to drug screens before each visit." Id. at 23. Father asks that we vacate the trial court's order or, in the alternative, grant him a new hearing to "give him the opportunity to testify and state his position in regards to the allegations" made by the Agency in its dependency petition. Id.
As discussed above, Father received written notice of the court proceedings at least three times. See Notice, 4/12/17; Notice of Hearing, 4/13/17; Shelter Care Order, 5/1/17. The Agency testified that it also gave Father oral notice of the proceedings. N.T., 5/2/17, at 3, 10. Despite multiple notices, Father chose not to attend and "state his position."
As for visitation, the Agency attempted to schedule visits numerous times, but Father failed to visit Child or contact the Agency to explain why he could not visit Child. Id. at 13.
Since removal from the home, Child has been adjusting well. Id. at 15. He has his own bed and space, is not afraid to go outside and play, lives with his two youngest siblings, and has constant visitation with his older siblings. Id . at 14. Child is being provided with a psychiatric evaluation, before and after school programs, and has dental and physical exams scheduled. Id. at 12-13. Therefore, we conclude that the juvenile court did not abuse its discretion in finding that it was in Child's best interest to remove Child from the home, and terminate visitation with Father. Trial Ct. Op., 6/12/17, at 3. Further, we find no reason to grant a new hearing in this case. Father's new-found readiness to attend court proceedings and visit Child is untimely. See Pa.R.J.C.P. 1101(B) ; see also J.J. , 69 A.3d at 731 ("[A]lthough preserving the unity of the family is a purpose of the [Juvenile] Act, another vital purpose is to ‘provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter.’ " (citing 42 Pa.C.S. § 6301(b)(1.1) ).
Accordingly, we affirm the juvenile court's orders adjudicating Child dependent, maintaining Child's placement in foster care, setting Child's permanency goal to adoption, and terminating Father's visitation.
Lastly, Father claims that the trial court erred in finding that aggravated circumstances existed. Father's Brief at 21-22. Father claims that because he did not attend the hearing, the trial court did not hear about his individual situation. Id. at 21. He contends that reunification with a parent is the most desirable goal and, thus, the court erred in not providing him with the opportunity to work on a child permanency plan with the goal of reunification with Child. Id. at 22.
Section 6341(c.1) of the Juvenile Act states that if the court makes a finding of dependency,
the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home[,] or to preserve and reunify the family[,] shall be made or continue to be made[,] and schedule a hearing as required in section 6351(e)(3) (relating to disposition of dependent child).
42 Pa.C.S. § 6341(c.1). Further, a finding of aggravated circumstances may be made where "[t]he parental rights of the parent have been involuntarily terminated with respect to a child of the parent." 42 Pa.C.S. § 6302(5).
Moreover, the Juvenile Act provides that where there has been a finding of aggravated circumstances, it is within the juvenile court's discretion to "determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made." See In re A.H. , 763 A.2d 873, 878 (Pa. Super. 2000) (internal quotation marks omitted); see also In the Interest of Lilley , 719 A.2d 327, 333 (Pa. Super. 1998). "[T]he focus of dependency proceedings [is] on the child. Safety, permanency, and the well-being of the child must take precedence over all other considerations, including the rights of the parents." In re R.P. , 957 A.2d 1205, 1220 (Pa. Super. 2008) (citation omitted).
Here, we find no error in the juvenile court's finding that aggravated circumstances existed as Father's parental rights had been involuntarily terminated as to another child, J.U.2. See Order, Aggravated Circumstances, 5/4/17; see also 42 Pa.C.S. § 6302(5). We further find no error in the court's finding that no reasonable efforts should be made to reunify the family because it was not in Child's best interest to remain in the home for the reasons set forth above. See Order, Adjudication and Disposition, 5/4/17, at 1; see also A.H. , 763 A.2d at 878. We conclude the trial court did not abuse its discretion in finding that aggravated circumstances existed and that no reasonable efforts to reunify the family should be made. See id.
Orders affirmed.
President Judge Gantman, President Judge Emeritus Bender, Judge Panella, Judge Lazarus, Judge Dubow and Judge McLaughlin join the opinion.
Judge Dubow files a concurring statement in which President Judge Emeritus Bender, Judge Panella, Judge Lazarus and Judge McLaughlin join.
Judge Stabile files a dissenting opinion in which Judge Shogan joins.
CONCURRING STATEMENT BY DUBOW, J.:I agree with the Majority Opinion that Father failed to appear at a hearing and thus, lost his right to representation by counsel. I write separately, however, because we are raising this issue sua sponte . Although the Supreme Court has not authorized us to raise sua sponte the issue of whether a parent is represented by counsel during dependency hearings, the right to counsel is statutorily mandated and the Superior Court should ensure that the trial court follows that mandate. Thus, the Superior Court should have the authority to raise sua sponte the failure of the trial court to do so.
When an appellate court raises an issue that the parties did not raise before the trial court or the appellate court, the appellate court is raising the issue " nostra sponte ," as opposed to "sua sponte " because the appellate court sits in multi-judge panels. Black's Law Dictionary (10th ed. 2014). For the sake of convenience, however, we will use the term "sua sponte " because the cases that address this issue for appellate courts consistently use this term.
The record reflects that caseworker Courtney Ross spoke to Father on the evening of May 1, 2017 about the hearing the following morning. N.T. 5/2/17, at 9-10. She stated that both parents told her they would attend and arrive early to speak further with Ross about the case. Id. The Majority, at footnote 11, writes that Ross notified Father of the hearing. Majority Opinion at 961–62 n.11. The Majority's footnote is deceptive insofar as it fails to note that the meeting between Ross and Father took place the night before the hearing. More to the point, Ross did not state whether she spoke to Father about his counsel's withdrawal. The record does not establish that Father was aware of counsel's withdrawal any earlier than May 1, 2017, assuming he read the court's notice.
It is axiomatic that an appellate court may not raise an issue sua sponte , except when the issue addresses the subject-matter jurisdiction of the court. In re Angeles Roca First Judicial Dist. Philadelphia Cty. , 643 Pa. 585, 173 A.3d 1176, 1197 (2017) ("It is foundational that jurisdictional questions may be raised sua sponte ."); Commonwealth v. Parker , 173 A.3d 294, 296 (Pa. Super. 2017) ("A court may consider the issue of jurisdiction sua sponte .").
In fact, our Supreme Court has specifically prohibited the Superior and Commonwealth Courts from deciding certain issues sua sponte . For instance, the Superior Court cannot address constitutional issues sua sponte . See Wiegand v. Wiegand , 461 Pa. 482, 337 A.2d 256, 257 (1975) (criticizing the Superior Court's sua sponte consideration of a constitutional issue, which "exceeded its proper appellate function of deciding controversies presented to it.").
Similarly, the intermediate appellate courts may not consider sua sponte standing and recusal issues. See In re Nomination Petition of deYoung , 588 Pa. 194, 903 A.2d 1164, 1168 (2006) (noting that our Supreme Court "has consistently held that a court is prohibited from raising the issue of standing sua sponte ."); Commonwealth v. Whitmore , 590 Pa. 376, 912 A.2d 827, 833 (2006) (concluding that the Superior Court erred when it sua sponte removed the trial judge where recusal had never been raised by the parties). See also Fallaro v. Yeager , 364 Pa.Super. 408, 528 A.2d 222, 228 (1987) (finding that a court may not make a sua sponte determination of dependency in a custody action where no dependency petition has been filed or in an action under the Child Protective Services Law).
The Supreme Court disfavors the intermediate appellate court's consideration of issues sua sponte because it is more important to respect orderly judicial decision-making, afford counsel the opportunity to brief and argue issues, permit the court to benefit from counsel's advocacy, and uphold issue preservation rules. Wiegand , supra .
There are, however, a few discrete, limited non-jurisdictional issues that the Supreme Court has authorized the appellate courts to raise sua sponte , such as waiver as a result of various briefing defects. See , e.g. , Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346, 348 (1984) (describing Pennsylvania's practice of dismissing pending appeals of escaped prisoners, which the court may do sua sponte ); Berg v. Nationwide Mut. Ins. Co., Inc. , 607 Pa. 341, 6 A.3d 1002, 1015 (2010) ("failure to include issues in a Rule 1925(b) statement resulted in ‘automatic’ waiver, which could be found sua sponte by courts.").
Additionally, the Superior Court has held that it has the authority to raise sua sponte the failure of the trial court to appoint any counsel for a child in a termination hearing because 23 Pa.C.S. § 2313(a) mandates that the trial court appoint counsel for a child in a termination hearing. In re K.J.H. , 180 A.3d 411 (Pa. Super. 2018).
Similarly, the Superior Court has found that it has the authority to consider sua sponte the failure of the trial court to conduct a Grazier hearing to ensure that a defendant has knowingly and voluntarily waived his right to counsel for his first PCRA petition. Commonwealth v. Stossel , 17 A.3d 1286, 1290 (Pa. Super. 2011). This Court based this conclusion on the fact that the PCRA statute entitles an indigent defendant to counsel for his first PCRA petition, and our Supreme Court has acknowledged that "PCRA relief cannot stand unless the petitioner was afforded the assistance of counsel." Id. (quoting from Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 699 (1998) ).
Although a three judge panel of Superior Court has held that Superior Court can raise sua sponte the issue of whether a Guardian ad Litem in a termination hearing has a conflict, it has done so without the authorization of the Supreme Court. In two recent Supreme Court decisions in this area, the parties had raised the issue of a conflict before the trial court or Superior Court. Thus, the Supreme Court, although acknowledging the importance that a GAL not have a conflict, did not authorize, let alone mention, that Superior Court may raise the conflict issue sua sponte . In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017) ; In re T.S. , ––– Pa. ––––, 192 A.3d 1080 (2018)
We may raise this issue sua sponte . See In re X.J. , 105 A.3d 1, 4 (Pa. Super. 2014) (holding that, in a termination case, "when a party was denied [his] right to counsel—or failed to properly waive that right—this Court is required to raise this error sua sponte "). Additionally, we note that the same attorney who withdrew earlier in these proceedings now represents Father on appeal. Thus, there was no attorney representing Father who could have challenged the propriety of counsel's earlier withdrawal from the case. See In re T.S. , ––– Pa. ––––, 192 A.3d 1080, 1087 (2018) (finding no waiver of a statutory right to counsel issue where there was no attorney who could have raised the issue, and the children could not have done so themselves).
Applying these principles to a dependency hearing, it is important to note that the Juvenile Act authorizes the appointment of counsel in dependency cases when a parent cannot afford counsel and appears at a hearing. In particular, Section 6337 of the Juvenile Act provides that "a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him." 42 Pa.C.S. § 6337 (emphasis added). Section 6337, however, has an exception for parties other than children, when it provides "if a party ... appears at a hearing without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court, if applicable." Id. Since the legislature has authorized the appointment of counsel, it has determined the importance of counsel at dependency hearings when parents appear. We should, therefore, ensure that the trial court follows the legislative mandate and address the issue, even if the parties do not raise it.
I note, however, that our right to ensure that the trial court appoints counsel goes no further than the appointment itself. We should not have the authority to address sua sponte the adequacy of that representation.
President Judge Emeritus Bender, Judge Panella, Judge Lazarus and Judge McLaughlin join the concurring statement.
DISSENTING OPINION BY STABILE, J.:
Presently at issue is a parent's statutory right to counsel in a dependency proceeding. Because I believe the trial court failed to enforce that right according to its plain statutory terms, I respectfully dissent.
On April 12, 2017, the trial court entered an order appointing counsel to represent Appellant, R.U. ("Father"), at a shelter care hearing. An attached notice informed Father that appointed counsel would represent him at the shelter care hearing only, and provided Father an address and telephone number he could use to seek further legal representation. The April 12, 2017 order indicates that it was served on Father and Father's appointed counsel. Counsel appeared at the April 18, 2017 shelter care hearing, but Father did not. Counsel then successfully moved for withdrawal but did not inform Father. At oral argument before this Court, counsel represented that she believed the Lancaster County Children and Youth Social Service Agency would notify Father of her withdrawal. The May 1, 2017 shelter care order notified Father that his counsel had withdrawn and directed Father to make an appointment at the Office of Bail Administration if he wished to have counsel at the next scheduled hearing. Father could not have made any such appointment, because the next scheduled hearing took place the following morning , at 8:30 a.m. on May 2, 2017. Father failed to attend the May 2, 2017 hearing,1 no counsel appeared on Father's behalf, and the trial court entered the orders presently on appeal. In these circumstances, I would conclude that the trial court failed to enforce Father's statutory right to counsel.2
I believe the plain language of 42 Pa.C.S.A. § 6337, read in conjunction with the applicable procedural rules, is dispositive. "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. § 1921(b).
Rule 1151(E) of the Rules of Juvenile Court Procedure provides:
E. Counsel for other parties. If counsel does not enter an appearance for a party, the court shall inform the party of the right to counsel prior to any proceeding. If counsel is requested by a party in any case, the court shall assign counsel for the party if the party is without financial resources or otherwise unable to employ counsel. Counsel shall be appointed prior to the first court proceeding.
Pa.R.J.C.P. 1151(E). The Comment to Rule 1151 provides that "it is extremely important that every ‘guardian’ has an attorney." Pa.R.J.C.P. 1151, comment. Rule 1152 provides that a parent's waiver of the right to counsel must be knowing, intelligent, and voluntary, and may occur only after an on-the-record colloquy. Pa.R.J.C.P. 1152(B).
The purpose of statutory interpretation is to ascertain the General Assembly's intent and give it effect. In discerning that intent, the court first resorts to the language of the statute itself. If the
language of the statute clearly and unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning. Relatedly, it is well established that resort to the rules of statutory construction is to be made only when there is an ambiguity in the provision.
In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172, 179 (2017) (internal citations and quotation marks omitted).
The first sentence of Section 6337 gives a party a statutory right to counsel at all stages of a dependency proceeding. That right is not conditioned on a party's request or a party's appearance at a proceeding. The second sentence of Section 6337 requires the court to ascertain whether a parent who appears at a proceeding unrepresented is aware of the right to counsel. It does not, either expressly or impliedly, require a parent to appear at a proceeding before the right to counsel attaches. Section 6337 is silent on the effect of a party's failure to appear at a proceeding.
Section 6337 provides:
Except as provided under this section and in section 6311 (relating to guardian ad litem for child in court proceedings), a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party other than a child appears at a hearing without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel. Except as provided under section 6337.1 (relating to right to counsel for children in dependency and delinquency proceedings), counsel must be provided for a child. If the interests of two or more parties may conflict, separate counsel shall be provided for each of them.
42 Pa.C.S.A. § 6337.
Rule 1151(E) governs the trial court's obligations when no counsel enters an appearance for a party, or when an unrepresented party requests counsel. Neither scenario occurred here. Rather, appointed counsel entered an appearance on Father's behalf prior to the first proceeding. The Majority's reliance on and analysis of Rule 1151(E) is therefore misplaced. Rule 1151(E), like Section 6337, is silent on the effect of a parent's failure to appear or request counsel. All three sentences of Rule 1151(E) state what the court "shall" do. See , e.g. , L.B.M. , 161 A.3d at 179 (noting that the use of "shall" in 23 Pa.C.S.A. § 2313(a) of the Domestic Code was an unambiguous mandate). Rule 1151(E) imposes obligations on the court, not a party.
The real issue in this case is the propriety and the procedure regarding counsel's withdrawal after only one proceeding. Rule 1152, governing waiver of the right to counsel, does not state that a parent's failure to appear at a proceeding or procure counsel for a subsequent proceeding, in accordance with the instructions of a preprinted document, constitutes a knowing, intentional, and voluntary waiver of the right to counsel. Rather, the official comment to Rule 1152 recommends inquiry into whether (1) the party understands the right to counsel; (2) whether the party understands the dependency allegations; (3) whether the party is aware of the potential outcomes of a dependency proceeding; (4) whether the party understands that he or she must obey the rules of procedure regardless of the presence or absence of counsel; (5) whether the party understands that counsel may be better suited to defend the party against the allegations; and (6) whether the party understands the potential to waive rights and objections. Pa.R.J.C.P. 1152, comment. I understand that the official comment to a Rule is nonbinding, but I find it very problematic that Father's failure to comply with the trial court's notices provides no answers to any of these six questions. Because Rule 1152 imposes an affirmative obligation on the court to determine whether a parent's waiver of counsel is knowing, intelligent, and voluntary, it is clear that no valid waiver of counsel occurred in this case.
As I noted above, there is no indication that Father could have known of his counsel's withdrawal prior to the May 1, 2017 notice.
In summary, the trial court failed to enforce Father's statutory right to counsel according to the plain statutory terms, and failed to conduct a valid waiver colloquy. Instead, the trial court elevated local practice over statutory law. This Court must not condone local practices that subvert statutory rights.
Furthermore, I disagree with the Majority's prompt resolution analysis. Majority Opinion at 961–62 (citing 42 Pa.C.S.A. § 6351(e)(3), Pa.R.J.C.P. 1404(A), 1409(B), and 1510 ). Proper enforcement of Father's right to counsel would not have delayed this proceeding. Had Father's appointed counsel remained on the case she could have represented Father's interests at the May 2, 2017 hearing, regardless of his presence or absence. In the meantime, the court could have instructed counsel to attempt to contact Father, and act accordingly in response to counsel's report on Father. This would have protected Father's statutory right to counsel with no attendant delay. If appropriate, the trial court could have issued orders identical to those on appeal at the conclusion of the May 2, 2017 hearing with or without Father's participation. Again, the real issue, insofar as Father's right to counsel is concerned, is the trial court's lack of statutory authority to permit counsel's withdrawal on the facts before us. The Majority's conclusion that the trial court would have had to await Father's action apparently rests on its misreading of Rule 1151(E). As I explained above, that Rule imposes obligations on the trial court, not a party, and it does not govern here because counsel was appointed and entered an appearance prior to the first proceeding.
Finally, I note that the United States Supreme Court has recognized that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Id. at 753–54, 102 S.Ct. 1388.
While my conclusion does not rest on fundamental fairness, I cannot conceive of any grounds on which the trial court's May 1, 2017 notice—informing Father for the first time of prior counsel's withdrawal and advising him of the need to procure new counsel by 8:30 a.m. the following morning —could be considered fundamentally fair.
Likewise, the Pennsylvania Supreme Court has recognized the paramount importance of the right to counsel where family unity is at stake. In L.B.M. , the Court recognized that a child has a right, in a contested termination of parental rights proceeding, to have counsel to advocate for the child's legal interests, which can be distinct from a guardian's assessment of the child's best interests. L.B.M. , 161 A.3d at 180. Notably, the L.B.M. Court recognized the importance of enforcing the clear language of a statutory right to counsel despite the associated costs and delays. Id. at 181 ; see also In re T.S. , ––– Pa. ––––, 192 A.3d 1080 (2018) (holding that the same person can represent the child's legal and best interests where there is no divergence between the two).
I recognize that this is not a termination proceeding, and that the stakes in a termination proceeding are much more serious than those of a dependency proceeding. See T.S. , 192 A.3d at 1095 (Donohue, J. concurring and dissenting). Nonetheless, the outcome here—changing S.U.'s permanency goal to adoption, terminating Father's visitation, and ceasing all reunification efforts—creates potentially insurmountable obstacles to Father's efforts to avoid termination of his parental rights.
It is inescapable that Section 6337, in tandem with Rules 1151(E) and 1152, creates a right to counsel for all stages of a dependency proceeding. Rule 1152 governs waiver of that right. L.B.M. and T.S. , as well as the rules of statutory construction, teach that we must enforce a statutory right to counsel according to its terms. Because the law did not authorize the trial court to permit counsel to withdraw under the circumstances here present, and because Father did not waive his right to counsel, I would vacate the trial court's orders and remand for further proceedings.
I respectfully dissent.
Judge Shogan joins the dissenting opinion.