Opinion
J-S01006-18 No. 1392 MDA 2017 No. 1450 MDA 2017
05-10-2018
C.S., v. L.C. APPEAL OF: LACKAWANNA CHILDREN AND YOUTH IN THE INTEREST OF: C.S., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN AND YOUTH SERVICES
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 2, 2017 in the Court of Common Pleas of Lackawanna County, Civil Division at No(s): 2009-FC-41245 Appeal from the Order Entered August 31, 2017 in the Court of Common Pleas of Lackawanna County, Civil Division at No(s): CP-35-DP-0000099-2017 BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
In these consolidated appeals, Lackawanna County Children and Youth Services ("CYS" or "OYFS") appeals from the Order (hereinafter, the "Dependency Order") directing CYS to file a dependency petition concerning the minor male child, C.S. (hereinafter "Child" - born in March 2008), and place Child in the custody of his biological father, C.J.S. (hereinafter "Father"), under intense supervision. CYS also appeals a subsequent Order (hereinafter, the "Withdrawal Order") allowing CYS to withdraw its dependency Petition, and stating that Father shall have primary physical custody of Child, subject to periods of partial physical custody by Child's mother, L.C. (hereinafter "Mother"). We affirm.
Concerning the Withdrawal Order, the trial court explained that "this [c]ourt allowed [CYS] to withdraw the dependency [P]etition ... after Father and Father's paramour completed parenting classes and continued to cooperate with [CYS]. [] [C]hild was never adjudicated dependent." Trial Court Opinion, 9/27/17, at 14 (emphasis added).
The trial court thoroughly set forth the factual background and procedural history underlying this appeal in its Opinion, which we incorporate as though fully set forth herein. See Trial Court Opinion, 9/27/17, at 1-4, 6-14.,
We will refer to the hearings that the trial court conducted on these specified dates as follows: July 13, 2017 - hereinafter, "the shelter care hearing"; July 24, 2017 - hereinafter, "the dependency hearing"; and August 31, 2017 - hereinafter, the "adjudication hearing."
Pursuant to the trial court's directive in the Dependency Order, on August 14, 2007, CYS filed a dependency Petition, in response to which the trial court scheduled the adjudication hearing.
On August 2, 2017, the trial court, the Honorable Trish Corbett ("Judge Corbett" or "the trial judge"), entered the Dependency Order, and, on August 31, 2017, entered the Withdrawal Order. CYS timely filed Notices of Appeal from both Orders, simultaneously with Concise Statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court thereafter consolidated the appeals.
CYS now presents the following questions for our review:
1. While the [trial] [j]udge authorized the withdrawal of the Dependency Petition on August 31, 2017, whether the matter is not moot despite the withdrawal of the Dependency Petition?Brief for Appellant at 5 (issues renumbered, some citations omitted).
2. Whether the trial judge erred and/or abused her discretion by issuing an Order in a [c]ustody matter[,] requiring [CYS] to file for dependency and to place [] [C]hild with [] Father under intense supervision?
3. Whether the [trial] judge erred by not allowing any testimony by [CYS] at the shelter care hearing, including testimony that would have made the case eligible for federal funding, to [CYS's] and [Lackawanna] [C]ounty['s] detriment[?] This must be determined at the first hearing, and cannot be addressed later, see 42 U.S.C. [§] 671[.]
4. Whether the trial judge erred and/or abused her discretion by conducting questioning of witnesses at the shelter care [hearing] and first adjudication hearing, instead of allowing [CYS] and other parties to call witnesses, [and] having direct and cross[-]examination by counsel, with clarification questions by the [trial] judge? [CYS] contends that this conduct was not compatible with an impartial trier of fact, as is expected of the judiciary.
5. Whether the [trial] [j]udge abused her discretion by ordering [] [C]hild removed from his home[,] in the absence of a Petition for Emergency Custody[,] and by denying [CYS's] request to withdraw the Shelter Care Petition for lack of grounds to keep temporary custody of [] [C]hild?
6. Whether the [trial] judge erred and/or abused her discretion in the ... [Withdrawal] Order by not specifically addressing whether [intense] supervision (which was not defined) should be continued in the [Withdrawal] Order[,] despite [CYS] having no safety concerns[,] and by stating in the [Withdrawal] Order that "All prior Order[s] that are not inconsistent with this Order shall remain in effect,["] creating ambiguity?
In dependency matters, we review the trial court's order pursuant to an abuse of discretion standard of review. As such, we must accept the court's findings of fact and credibility determinations if they are supported by the record, but we need not accept the court's inferences or conclusions of law.In the Interest of H.K., 172 A.3d 71, 74 (Pa. Super. 2017) (citations omitted).
We note that neither Mother/Father, nor the Guardian Ad Litem for Child, Corrine E. Thiel, Esquire (hereinafter, the "GAL" or "GAL Thiel"), have filed briefs in this appeal.
In its first issue, CYS contends that, contrary to the trial court's ruling, the matter of whether Child is dependent is not moot, despite the entry of the Withdrawal Order approving the withdrawal of the dependency Petition. See Brief for Appellant at 19-21. Specifically, pointing to one of the exceptions to the mootness rule (hereinafter referred to as "the repetition exception"), CYS asserts that "while [] [C]hild [wa]s not found dependent, he was still removed from his home by Court Order. [CYS] believes the situation would reoccur[,] and appellate review [would be] evaded[,] by no finding of dependency." Id. at 19 (citing Chruby v. Dep't of Corr., 4 A.3d 764, 771 (Pa. Cmwlth. 2010) (stating that the repetition exception to the mootness rule is met where "the conduct complained of is capable of repetition yet likely to evade review[.]")). In support of this assertion, CYS contends that "[s]ince this appeal was filed, [CYS] learned of another order[, in a separate case, issued by a different trial court judge], ordering [CYS] to open a dependency case, do an assessment, and provide immediate services to children by a custody order." Brief for Appellant at 19.
This Court has discussed the mootness rule and the repetition exception as follows:
Generally, an actual claim or controversy must be present at all stages of the judicial process for the case to be actionable or reviewable. Plowman v. Plowman , 409 Pa. Super. 143, 597 A.2d 701, 705 (1991). If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot. Id. Even if a claim becomes moot, we may still reach its merits if the issues raised in the case are capable of repetition, yet likely to continually evade appellate review. Id. See also In Re Fiori , 543 Pa. 592, 600 n. 4, 673 A.2d 905, 909 n.4 (1996) (holding death of patient did not preclude appellate review where issue was of important public interest, capable of repetition, yet apt to elude appellate review); Commonwealth v. Bernhardt , 359 Pa. Super. 413, 519 A.2d 417, 420 (1986) (holding exception to mootness doctrine exists where (1) the question involved is capable of repetition but likely to evade review, or (2) the question involved is one of public importance).In re Duran , 769 A.2d 497, 502 (Pa. Super. 2001) (quotation marks omitted).
The trial court addressed this matter in its Opinion and determined that CYS's claims challenging the Dependency Order (and matters related to dependency) are moot because Child was never adjudicated dependent and the Withdrawal Order permitted CYS to withdraw its dependency Petition. See Trial Court Opinion, 9/27/17, at 22-23. We agree with the trial court's analysis and determination, and thus incorporate it as though fully set forth herein. See id. Moreover, there is no merit to CYS's claim that the circumstances here meet the repetition exception to the mootness rule. While the issue may be capable of repetition in the future (i.e., in other cases, Lackawanna County Court of Common Pleas judges may potentially direct CYS to open a dependency case), it is not likely to continually evade appellate review, as CYS may challenge such rulings if and when they happen. See Duran , supra ; see also In re Estate of Dorone , 502 A.2d 1271, 1274 (Pa. Super. 1985) (stating that the repetition exception is met only where the issues "capable of repetition but likely to evade review are 'substantial questions,' or 'questions of public importance.'"). Nevertheless, even though some of the claims that CYS presents in this appeal are moot, we, like the trial court, will briefly address all of its claims.
In its second issue, CYS contends that the trial judge erred by issuing the Dependency Order, purportedly in a custody case, which directed CYS to file for dependency and place Child with Father under intense supervision. Brief for Appellant at 11-13. CYS argues that the trial judge
CYS clarifies that it is not appealing the trial court's placement of Child with Father. See Brief for Appellant at 10; see also Rule 1925(b) Concise Statement, 9/15/17, ¶ 2.
abused her discretion by failing to remember that she had sought and approved both an Emergency Custody Order and a Shelter Care Order[,] putting [Child] into temporary custody of [CYS], which placed this matter under the Juvenile Act[, 42 Pa.C.S.A. § 6301 et seq.], and disregarded the procedures and safeguards of [the Juvenile] Act in ordering a change of custody by a [c]ustody Order.Brief for Appellant at 12-13; see also id. at 12 (asserting that "[w]hen the [trial] [j]udge issued the [Dependency Order] as a [c]ustody Order, the Juvenile Act process [] existed, and nothing had been filed to bring the matter back to custody court."). In support of its claim, CYS cites this Court's decision in Fallaro v. Yeager , 528 A.2d 222 (Pa. Super. 1987).
In Fallaro , the matter was initially before the trial court on cross-petitions for custody. Id. at 224. However, though neither party had filed a petition for dependency, the court, sua sponte, made such a determination. Id. This Court held the trial court committed reversible error in this regard, stating that
in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child. Since no such petition was filed in this case, the court below had no jurisdiction to find [] child to be a dependent child.Id. at 225.
In its Opinion, the trial court concisely addressed CYS's claim, distinguished Fallaro , and determined that the Court did not err or lack jurisdiction to issue the Dependency Order, where the court did not adjudicate Child dependent prior to the filing of a dependency petition. See Trial Court Opinion, 9/27/17, at 16-17. We agree with the trial court's rationale and legal determination, and therefore affirm on this basis in rejecting this issue. See id.
In its third issue, CYS contends that Judge Corbett erred by not allowing any testimony by CYS at the shelter care hearing, including testimony that would have made the case eligible for federal funding. See Brief for Appellant at 13-15. CYS asserts that
[t]he sequence of events [at the shelter care hearing] shows that [] [J]udge [Corbett] did not want [CYS] to testify. [CYS's] witness(es) would have testified to the recommendation to withdraw the [shelter care] Petition. This was not what [] Judge [Corbett] wanted to hear. [CYS] submit[s] that [] [J]udge [Corbett] desired [] [C]hild to stay in temporary custody of [CYS], which meant foster care, and sought evidence from [Mother and Father] to secure that objective. This is at variance with the obligation of [] [J]udge [Corbett] to be impartial and to weigh the evidence in making a decision. In pertinent part here, that meant no testimony which would make the case eligible for federal funding, as required by 42 U.S.C. [§] 671 [(setting forth, inter alia, the requirements for a state plan for foster care/adoption to receive federal funding)]. The relevant portion of that statu[t]e required evidence to support a finding that reasonable efforts were made to prevent placement or that there were emergency circumstances precluding such efforts. [ See id. § 671(a)(15).] Judge Corbett was focused on keeping [] [C]hild in foster care, and was not focused on [CYS's] funding.Brief for Appellant at 14 (emphasis and some citations omitted). CYS further asserts that "[t]he evidence [that CYS] had, including [] [F]ather's compliance with what [CYS] asked of him, did not support safety issues or other reasons to keep [] [C]hild out of [Father's] home. Therefore[, CYS] sought to withdraw the shelter care [P]etition and later[,] the dependency [P]etition." Id. at 15.
In her Opinion, Judge Corbett concisely addressed this claim and determined that the court did not err or abuse its discretion in the fashion in which it conducted the shelter care hearing. See Trial Court Opinion, 9/27/17, at 15-16. We agree with the trial court's analysis and determination, which is supported by the record, and therefore affirm on this basis as to this issue. See id.
In its fourth issue, CYS argues that Judge Corbett abused her discretion in the fashion in which she conducted the dependency hearing, which included not allowing CYS or Mother and Father an opportunity to present and question witnesses. See Brief for Appellant at 15-16. According to CYS,
Though CYS, in its corresponding issue in its Statement of Questions Presented section, purports to challenge Judge Corbett's actions at the shelter care hearing and the "first adjudication hearing," its Argument section only references the dependency hearing.
[b]y her actions, [] Judge [Corbett] is seeking evidence to keep [] [C]hild in custody, and not acting impartially with respect to [Mother and Father]. ... By her actions in taking over the [dependency] hearing, conducting questioning [of witnesses (i.e., GAL Thiel)], and finding for shelter care, without giving [CYS,] or [Mother and Father], the parties, an opportunity to testify, [] Judge [Corbett] is not acting as an impartial judge, but is focused on achieving the outcome she wants. This is not due process. This is an abuse of discretion.Id. at 16.
In her Opinion, Judge Corbett concisely addressed CYS's claim, set forth the relevant law and a description of what had occurred at the dependency hearing, and opined that she committed no impropriety or abuse of discretion in conducting the dependency hearing. See Trial Court Opinion, 9/27/17, at 17-18. As Judge Corbett's rationale is supported by the record, and we agree with her determination, we affirm on this basis as to this issue. See id.
In its fifth issue, CYS contends that the trial court abused its discretion in ordering that Child be removed from the care of Father/Mother, where CYS (1) had not filed a petition for emergency custody; and (2) did not have grounds to keep temporary custody of Child. See Brief for Appellant at 17-18. CYS asserts as follows:
Under the Dependency Rules, a case is commenced by the filing of a [dependency] petition or emergency custody application (P[a].R.J.C.P. 1200(1)[,] (2)). Since there was an Emergency Custody Order approved by Judge Corbett, there should have been a [p]etition/application with facts averred to support the requested relief. There is no application to support the removal of [] [C]hild from a parent's home. While there is a Shelter Care Petition, (a copy of which is attached to the [Trial Court's] Opinion as Exhibit "B") ..., [CYS] contends that this [P]etition cannot substitute for the lack of the earlier petition. [CYS] sought to withdraw the shelter care [P]etition because it had no basis to keep custody based on its investigation.Brief for Appellant at 17.
The trial court addressed this claim in its Opinion and determined that the court did not abuse its discretion in this regard since (1) CYS's filing of the shelter care Petition was sufficient and warranted by the facts of record; and (2) this issue is not relevant since CYS is not appealing the shelter care requirement, but rather, the Dependency Order, which directed CYS to file a dependency petition concerning Child. See Trial Court Opinion, 9/27/17, at 18-22. We agree with the trial court's determination and analysis, and therefore affirm on this basis as to this issue. See id.
As an addendum, we note that the cases CYS relies upon in support of its claim are distinguishable. See In the Interest of M.B., 514 A.2d 599, 602 (Pa. Super. 1986) (holding that the trial court erred in adjudicating the child dependent where no dependency petition had been filed and the matter was before the court based upon abuse allegations); In re A.L., 779 A.2d 1172, 1175 (Pa. Super. 2001) (quoting Fallaro , supra , and stating that "in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child."). In the instant case, Child was never adjudicated dependent.
In its sixth and final issue, CYS argues that the trial judge erred insofar as the Withdrawal Order, which approved the withdrawal of the dependency Petition and stated that "[a]ll prior Order[s] that are not inconsistent with this Order shall remain in effect[,]" was ambiguous and thus cannot be enforced. See Brief for Appellant at 21-22. Specifically, CYS asserts that the Withdrawal Order was improperly ambiguous for failing to clarify whether the court-ordered "intense supervision" of Father's custodial time, which was ordered in the Dependency Order but not defined therein, was to be continued. Id. CYS poses the question, "[h]ow often are [home] visits under intens[e] supervision? Once a day, once a week, one every two weeks? It is not clear, either to [CYS], which had to guess what was meant, or to a person of reasonable understanding." Id.
Contrary to CYS's argument, we discern no reversible error by Judge Corbett in this regard. If CYS is confused as to the meaning of "intense supervision," it may file a petition seeking clarification from the trial court. Further, at the adjudication hearing, the trial judge pointed out that Father's custodial time would be under "intense supervision," in response to which the attorney for CYS stated as follows: "Yes. And that intense supervision is gonna remain, Your Honor." N.T., 8/31/17, at 21. However, the CYS attorney did not seek clarification of this phrase at that time. The Withdrawal Order is enforceable and not improper due to ambiguity.
Moreover, given Father's admission to having previously physically abused Child, as the trial court thoroughly detailed in its Opinion, we deem that the CYS supervisor was prudent in "interpret[ing] the term [intense supervision] to mean a daily caseworker visit to the home[.]" Brief for Appellant at 21.
Based on the foregoing, we affirm the Dependency Order and the Withdrawal Order.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/10/2018
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