J-A30004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.R., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.H., MOTHER

                                                     No. 328 MDA 2016


                Appeal from the Order Entered January 25, 2016
               In the Court of Common Pleas of Schuylkill County
              Juvenile Division at No(s): CP-54-DP-0000051-2013


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 06, 2017

       J.H. (“Mother”) appeals from the juvenile court’s January 25, 2016

orders that discharged S.R. from a prior adjudication of dependency,

terminated court supervision, and awarded permanent legal custody (“PLC”)

to the child’s paternal great aunt and uncle, L.R. and L.R (“Aunt and Uncle”).

We reverse and remand.1

____________________________________________


1
  Mother filed with this Court a petition to strike Aunt and Uncle’s brief and
to quash their status as intervenor based upon their alleged lack of standing.
Mother relies upon the well-ensconced precept that foster parents, even
kinship foster parents, are not considered parties to dependency proceedings
because the agency retains legal custody of the dependent child. However,
in treating Aunt and Uncle as typical foster parents in the case at bar,
Mother ignores the reality that the trial court specifically named Aunt and
Uncle as S.R.’s legal and physical custodians as early as October 2013.
Hence, they have had standing to participate in the dependency proceedings
(Footnote Continued Next Page)
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        S.R. was born during March 2012. Schuylkill County Child and Youth

Services (“CYS”) became involved with this family approximately one year

later, in response to a report that the family was living in squalor and that

C.R. (“Father”), Mother’s live-in paramour, was a founded perpetrator of

sexual abuse against one of S.R.’s two half-sisters.2              Upon further

investigation, the agency uncovered allegations that Father continued to

sleep in the same bed as the victim.

        On April 1, 2013, the juvenile court adjudicated S.R. dependent due to

a lack of proper parental care and control.       While Mother initially retained

physical custody of S.R. subject to CYS supervision, the child was removed

from the home on June 17, 2013, based upon Mother’s failure to rectify the

deplorable living conditions or protect the children from Father, who

continued to care for the children without supervision.        S.R. was placed

briefly with maternal grandmother, but after concerns arose regarding

inappropriate discipline and the grandmother’s alcohol abuse, the juvenile



                       _______________________
(Footnote Continued)

since that date. See In the Interest of L.C., II, 900 A.2d 378, 381
(Pa.Super. 2006) (“Due process requires that the child's legal caregiver, be
it a parent or other custodian, be granted party status in order to be able to
participate and present argument in the dependency proceedings.”) Thus,
we deny Mother’s petition to strike Aunt and Uncles’ brief and to quash their
intervention as Appellees.
2
    Neither of those children is the subject of this appeal.



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court granted temporary legal and physical custody to Aunt and Uncle. CYS

has maintained a supervisory role throughout this case.

      During the course of the ensuing twenty-seven months, Aunt and

Uncle retained their status as temporary legal and physical custodians and

Mother demonstrated modest progress toward the goals of the Family

Service Plan (“FSP”).          Mother obtained housing and consistently attended

supervised       visitations     with    S.R.   and   mental     health    appointments.

Significantly,    however,       while    Mother    informed    the    agency     that   she

terminated her relationship with Father during the summer of 2014, Father

subsequently verified that he and Mother maintained a surreptitious

relationship as late as November 2015, which she asked him not to reveal.

Similarly,   although      Mother        attended   her   mental      health    proceedings

regularly, she exhibited a history of dishonesty with her treatment providers.

During the biannual permanency review hearing that preceded the hearing

that is the genesis of this appeal, CYS noted its concern with Mother’s lack of

progress in her treatment and her capacity to protect S.R. from harm.                     It

recommended         that   the    court     endorse   Aunt     and    Uncles’    permanent

custodianship and vacate the order requiring agency supervision.

      CYS did not file a formal petition to discharge S.R. from dependency in

this case.   Instead, at the outset of the January 25, 2016 permanency

review hearing, CYS requested orally that the juvenile court terminate the

agency’s supervision of the the case, transfer PLC to Aunt and Uncle, and

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close the dependency proceedings relating to then three-year-old S.R. The

crux of the agency’s position is that, in light of Aunt and Uncle’s

guardianship, S.R. is no longer without parental care and control under §

6302. In support of its request, CYS sought to introduce an affidavit-style

report compiled by Christina Alexander, the CYS caseworker assigned to the

family, and to present Ms. Alexander for cross-examination.

       While neither Mother nor her counsel, Byron Walker, Esquire, appeared

at the hearing, paternal Aunt and Uncle, Father and his counsel, the

guardian ad litem, CYS’s attorney were present.            Ms. Alexander and two

other witnesses attended the hearing. The trial court observed that Attorney

Walker had called the courthouse prior to the hearing and requested a

continuance due to what he characterized as blizzard conditions that

occurred during the preceding two days in neighboring Dauphin County.3

Although Attorney Walker provided the juvenile court his telephone number,

the court declined to contact him.             Instead, it noted that the roads in

Schuylkill County had been cleared, that Mother lived within walking

distance of the courthouse, and that the remaining parties and witness all

attended the hearing. The court also considered that CYS, Father, Aunt and
____________________________________________


3
   Attorney Walker’s mailing address is a post office box in Carlisle,
Pennsylvania, which is the seat of Cumberland County.         Nevertheless,
assuming that his practice is located there rather than Dauphin County,
Attorney Walker would be required to traverse the affected county to attend
the hearing.



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Uncle, and the guardian ad litem all opposed the continuance. It ultimately

denied Attorney Walker’s motion for a continuance.

       Thereafter, the trial court admitted Ms. Alexander’s affidavit without

opposition, and following a brief examination of Ms. Alexander regarding

who would supervise Mother’s visitations with S.R. once the PLC was in

effect, the trial court granted CYS’s request to terminate court supervision.

It entered the above-referenced order that discharged the adjudication of

dependency and terminated the trial court’s supervision of the case.       The

concomitant permanency review order entered on the same date formalized

the PLC, established the parameters of Mother’s supervised visitations with

S.R., and outlined her right to stay abreast of all medical and educational

decisions relating to S.R.4 This timely appeal followed.5



____________________________________________


4
   Pursuant to 42 Pa.C.S. § 6351(a)(2.1)(i), juvenile courts have the
authority to enter a disposition order that transfers permanent legal custody
of a dependent child to “Any individual resident within or without this
Commonwealth, including any relative, who . . . is found . . . to be qualified
to receive and care for the child.” See also 42 Pa.C.S. § 6351(f.1)(3) (“the
court shall determine . . . [i]f and when the child will be placed with a legal
custodian in cases where the return to the child's parent . . . is not best
suited to the safety, protection and physical, mental and moral welfare of
the child.”).
5
  Mother filed a motion for reconsideration, which the trial court denied on
March 1, 2016. The motion did not affect the timeliness of Mother’s appeal.
See Pa.R.C.P. 1930.2(b)(unless reconsideration is granted, motion does not
extend appeal period).



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      Mother’s Pa.R.A.P. 1925(a) statement raised three issues, which she

reiterated on appeal. We abbreviated Mother’s claims for clarity.

      a.    Whether the [t]rial [c]ourt committed reversible error and
      an abuse of discretion in the denial of [her] emergency
      continuance . . . [due to] . . . exigent circumstances[.]

      b.    Whether the trial court committed reversible error under
      the Juvenile Act, 24 Pa.C.S. § 6301 et seq., in terminating court
      supervision and granting legal and physical custody to [Aunt and
      Uncle.]

      c.    Whether the trial court committed reversible error under
      the Juvenile Act, 42 Pa.C.S. § 6301 et seq., in terminating court
      supervision and granting legal and physical custody to [Aunt and
      Uncle] where [the court did not identify who would supervise
      Mother’s continued visitation with her daughter.].

Appellant’s brief at 4-5.

      Pennsylvania Rules of Juvenile Civil Procedure 1122(A), regarding

continuances of juvenile proceedings, provides as follows:

      A. Generally. In the interests of justice, the court may grant a
         continuance on its own motion or the motion of any party.
         On the record, the court shall identify the moving party and
         state its reasons for granting or denying the continuance.

Pa.R.J.C.P. 1122(A). The comment to Rule 1122 explains that a continuance

should not be granted “when [it] could be deleterious to the safety or well-

being of a party.”     Likewise, the comment states, “The interests of justice

require the court to look at all the circumstances, effectuating the purposes

of the Juvenile Act, 42 Pa.C.S. § 6301, in determining whether a continuance

is appropriate.” Id.




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        This Court reviews a trial court’s decision to grant or deny a

continuance for an abuse of discretion.      Baysmore v. Brownstein, 771

A.2d 54, 57 (Pa.Super. 2001). “An abuse of discretion is more than just an

error in judgment and, on appeal, the trial court will not be found to have

abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the results of partiality, prejudice, bias or

ill-will.”   Id.   In addition to the guidance outlined in Rule 1122, relating

specifically to juvenile court proceedings, in determining whether a trial

court’s denial of a motion to continue was tantamount to an abuse of

discretion we consider: “(1) whether the opposing party would have been

prejudiced by a delay; (2) whether the opposing party agreed to the

continuance; (3) the length of the delay requested; and (4) the complexities

involved in trying the case.” Krupa by Krupa v. Williams, 463 A.2d 429,

434 (Pa.Super. 1983); see also Papalia v. Montour Auto Service

Company, 682 A.2d 343, 345 (Pa.Super. 1996).

        The trial court proffered the following reasons for denying Mother’s

motion for a continuance.

              At the time of the Hearing the Court was presented with a
        Continuance Request by Mother's attorney because of a blizzard
        that had occurred the weekend prior to the Hearing date. All of
        the parties at the Hearing opposed the Continuance because the
        roads were clear and everyone but Mother and her Counsel were
        present and prepared to proceed. It is noted that the Schuylkill
        County Courthouse was open for business as usual on the date
        of the Hearing. The Court Denied the Continuance Request and



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      proceeded with the Juvenile Review Hearing, as the well-being of
      a minor child was at issue.

Trial Court Opinion and Order, 3/1/16, at 2.

      Mindful of the guidance provided in Rule 1122 and the considerations

we enumerated in Krupa, supra and Papalia, supra, we find that the trial

court abused its discretion in denying the request without contacting

Attorney Williams. First, we observe that, while all of the Appellees opposed

the delay, they did not allege any prejudice flowing from the continuance.

Appellees’ collective reasoning was that they all were able to attend the

hearing and that the agency’s request to discharge the dependency and

transfer PLC to Aunt and Uncle was meritorious. Our review of the certified

record reveals that the requested continuance was not “deleterious to

[S.R.’s] safety or well-being” insofar as it would not have altered S.R.’s

placement with Aunt and Uncle, the FSP, or the child’s safety plan.      See

comment to Rule 1122.          Additionally, there were no time-sensitive

proceedings scheduled, such as the termination of parental rights or a

prospective adoption, that would have been derailed by granting the

continuance.   Indeed, as Appellant accurately observes, the continuance

would have maintained the existing state of affairs until the hearing could be

rescheduled. This threshold factor militates in Mother’s favor.

      Furthermore, in contrast to Appellees’ shared perspective that Mother

did not suffer harm as a result of the court’s denial the motion for



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continuance, the record establishes that the decision to proceed without

Mother or Attorney Walker was, in fact, prejudicial. Collectively, Appellees

argue that since Mother retained her parental rights, supervised visitations,

and the ability to file a custody action pursuant to the Child Custody Law,

she was not harmed by the juvenile court’s decision to discharge S.R.’s

adjudication of dependency in her absence and award Aunt and Uncle

permeant legal custody. This superficial perspective ignores the realities of

dependency proceedings.

       The order discharging S.R. from dependency inevitably terminated the

reunification resources, counseling, and mental health treatment that Mother

received through CYS’s service providers.     In light of the facts that the

purposes of the Juvenile Act are a central consideration when reviewing the

propriety of a continuance, and that “preserv[ing] the unity of the family

whenever possible” is among the primary purposes of the Act, the prejudice

to Mother in this case is manifest.   See 42 Pa.C.S. § 6301(b)(1).     Rather

than   simply   discharging   the   dependency   in   Mother’s   absence   and

transferring PLC to Aunt and Uncle, the court terminated all of the

reunification resources that Mother had previously received.     Again, these

circumstances weigh in favor of Mother.

       The next factor we consider relates to the length of the delay

associated with the requested continuance. At first glance, this factor does

not appear to militate in favor of either granting or denying the continuance.

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Attorney Walker, who had the farthest distance to drive to attend the

hearing, did not request to postpone the hearing to a specific date.

Likewise, the certified record does not reveal the status of the juvenile court

calendar, Appellees’ availability, or the ability of Ms. Alexander or the

remaining witnesses to return at a later date. Nevertheless, notwithstanding

the dearth of evidence to consider under this factor, we observe that the

trial court could have alleviated this issue altogether had it contacted

Attorney Walker as requested and directed him to participate by telephone.

      The final factor addresses the complexities involved in the case.

Significantly, we conclude that the trial court’s decision to proceed with the

hearing without Mother or her counsel and dispose of the mater in absentia

impeded Mother’s rights to due process. As this Court stated in In Interest

of Jones, 429 A.2d 671, 673 (Pa.Super. 1981), “a parent in a dispositional

hearing has a constitutional right under the due process clause to confront

and cross-examine adverse witnesses.”            Due process calls for such

procedural protections as are required under the particular circumstances of

the case.   In In re F.C., III, 966 A.2d 1131, 1138 (Pa.Super. 2009), we

reiterated, “due process is a flexible concept incapable of exact definition,

and is concerned with the procedural safeguards demanded by each

particular situation in light of the legitimate goals of the applicable law.”

      Jones concerned the in-court presentation of evidence during the

dispositional stage of a dependency hearing. In that case, we held that by

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denying a mother information concerning the identity of a witness who

presented critical testimony against her and by barring her from the

witness’s examination, the trial court failed to comport with the mandates of

due process and denied her “the most important cross-examination tool:

knowledge of the witness’s identity and with it any bias which could prompt

the witness to testify as he did.” Id. at 676. Accordingly, we vacated the

trial court’s decision that was adverse to the mother, and we remanded the

matter for a new dispositional hearing.

     As in Jones, supra, the juvenile court’s disposition in the instant case

infringed upon Mother’s due process. Preliminarily, we note that Mother was

denied formal notice of CYS’s request to discharge the dependency.      More

importantly to our analysis herein, and similar to the constitutional

protections at issue in Jones, Mother was deprived of her right to confront

Ms. Alexander about her report and recommendation, the cornerstone of the

juvenile court’s decision to grant the agency’s request.    Significantly, as

referenced in our discussion of factor three, the court elected to discharge

the dependency proceedings in absentia rather than utilize the contact

information Attorney Walker provided.     The juvenile court could have, but

did not, scrutinize counsel’s account of the inclement weather or, as

previously stated, require him to participate in the hearing by telephone. At

a minimum, a telephone conference would have preserved Mother’s right to

cross-examine Ms. Alexander about her report and recommendation. As it

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now stands, the juvenile court encroached upon Mother’s due process rights

and the interests of justice require that we reverse the orders entered in

absentia and remand for a new hearing on CYS’s request to discharge the

adjudication     where   Mother   can    exercise    her   due   process   right   of

confrontation.

      For all of the foregoing reasons, we find that the juvenile court abused

its discretion by declining to grant the continuance under the circumstances

of this case.

      Orders reversed.      Petition denied.        Matter remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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