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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X.L., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: C.L., FATHER

                                                     No. 2009 EDA 2014


                       Appeal from the Order June 12, 2014
                 in the Court of Common Pleas of Wayne County
                  Domestic Relations at No.: CP-64-DP-37-2013


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 13, 2015

        C.L. (Father), appeals from the order of the Court of Common Pleas of

Wayne County, entered on June 12, 2014,1 by which the trial court found

that aggravated circumstances existed against Father in the case of his son,

X.L. (Child), born in December of 2013.2 We affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The aggravated circumstances order is dated June 6, 2014, is docketed as
being filed on June 12, 2014, and bears a date stamp from the
Prothonotary’s office of June 13, 2014. We will use the June 12, 2014 date
when referencing the order.
2
  We note that “[a]ll orders dealing with custody or visitation, with the
exception of enforcement or contempt proceedings, are final when entered.”
In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (citing Pa.R.C.P.
1915.10).
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       Wayne County Children and Youth Services (CYS) took custody of

Child within days after he was born on December 16, 2013. On December

19, 2013, CYS filed a shelter care application in which it alleged that Child

was without proper parental care and control due to Mother’s drug use and

mental health issues, and Father’s threats of violence against caseworkers.

(See Shelter Care Application, 12/19/13, at 3).

       The trial court granted the shelter care application on December 23,

2013, based on the testimony of CYS staff and with the agreement of Mother

and Father.     (See N.T. Hearing, 12/20/13, at 11; see also Shelter Care

Order, 12/23/13, at 1-2). Thereafter, the trial court found Child dependent

at an adjudicatory hearing held on January 16, 2014. (See N.T. Hearing,

1/16/14, at 14-15; see also Dependency Order, 1/17/14).

       CYS filed a permanency petition on March 14, 2014.                The trial court

held a hearing on that petition on March 24, 2014.              At that hearing, CYS

casework      supervisor,      Sarah     Nahman,3   testified     that     “aggravated

circumstances [were not] being alleged to exist . . . . at [that] time[,]” but

that “we did just realize they do exist and we’ll be doing the paperwork to

allege them.” (N.T. Hearing, 3/24/14, at 8).



____________________________________________


3
  “Nahman” is spelled both, “Nohman” and “Nahman” in the notes of
testimony. (See N.T. Hearing, 3/24/14, at 2; N.T. Hearing, 6/06/14, at 28).
For the sake of consistency, we will spell it “Nahman.”



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      Licensed psychologist, Judith Munoz, evaluated Father on February 10,

2014 and February 17, 2014, as part of CYS’ permanency plan. Ms. Munoz

related that Father was very cooperative and open about his criminal history

and drug use. She stated, “he was not holding back anything.” (Id. at 18).

Ms. Munoz related that Father disclosed his background at the first meeting

of February 10, 2014, but that she could not recall if CYS had given her

written documentation of the criminal charges before or after this first

meeting. (See id. at 21). At the close of the hearing on March 24, 2014,

the   trial   court,   with   the   agreement   of   all   parties,   adopted   CYS’

recommendations that contemplated the reunification of the family.              (See

id. at 42-45).

      CYS filed a Petition for Permanency on April 1, 2014, alleging the

following aggravated circumstances for the first time:

      The     petitioner   alleges   the   existence     of   aggravated
      circumstances, to wit: The parent of [C]hild has been convicted
      of the following offense(s), or attempt, solicitation or conspiracy
      to commit the following offense(s), where the victim was a child:
      a felony under 18 Pa.C.S.[A.] §[§] 2702 (relating to aggravated
      assault[)], 3121 (relating to rape), 3122.1 (relating to statutory
      sexual assault), 3123 (relating to involuntary deviate sexual
      intercourse), 3124.1 (relating to sexual assault)[,] or 1325
      (relating to aggravated indecent assault), to wit: 18 § 3122.1
      Statutory Sexual Assault.

(Petition for Permanency Hearing, 4/01/14, at 2).

      At the permanency hearing held on June 6, 2014, CYS caseworker,

Roslyn Burke, testified that Father had pled guilty to statutory sexual assault

in February of 2004. (See N.T. Hearing, 6/06/14, at 19). According to Ms.

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Burke, CYS did not learn that aggravated circumstances “officially existed”

until March 21, 2014. (Id.). On cross-examination, Father’s counsel elicited

from Ms. Burke the fact that CYS had sent a letter regarding Father’s

criminal history to Ms. Munoz:

     Question:   You said you became aware when [Father] told
                 Sarah Nahman about his conviction?

     Answer:     That is correct.

     Question:   Are you aware of a letter that [CYS] wrote to Judy
                 Munoz outlining [Father’s] criminal history?


     Answer:     That is correct.

     Question:   Are you aware that Sarah Nahman authored that
                 letter?

     Answer:     Sarah Nahman, l believe, signed off on that letter,
                 however it was composed by past caseworker, Brit
                 Ackerman.

(Id. at 28). Father’s guilty plea and sentence were admitted into evidence

without objection, the trial court found that aggravated circumstances

existed, and the hearing was adjourned. (See id. at 47, 51).

     The trial court entered its order finding aggravated circumstances

against Father on June 12, 2014. (See Permanency Review Order, 6/12/14,

at 2; Aggravated Circumstances Order, 6/12/14, at 1).       Father filed his

notice of appeal and statement of errors complained of on appeal on June

24, 2014. See Pa.R.A.P. 1925(a)(2)(i). The trial court filed an opinion on

September 18, 2014. See Pa.R.A.P. 1925(a)(1).



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       Father raises the following questions for our review:

       1. Did Father preserve the issues presently on appeal contrary to
       the trial court’s conclusion that they have been waived pursuant
       to Pa.R.A.P. 302[4]?

       2. Did the trial court err and abuse its discretion in finding or
       concluding that aggravated circumstances existed as against
       Father in violation of 42 Pa.C.S.A. section 6334(b)(1)(ii) & (2)
       where CYS failed to act as soon as possible after its
       representatives reasonably believed that such circumstances
       existed and failed to make such allegations within twenty-one
       (21) days after determining that such circumstances existed?

(Father’s Brief, at 5).

       Our Supreme Court set forth our standard of review for dependency

cases as follows.

       . . . [T]he standard of review in dependency cases requires an
       appellate court to accept the findings of fact and credibility
       determinations of the trial court if they are supported by the
       record, but does not require the appellate court to accept the
       lower court’s inferences or conclusions of law. Accordingly, we
       review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).

       Father first complains that the trial court erred by finding that his

challenge to the timeliness of CYS’ aggravated circumstances determination

is waived. (See Father’s Brief, at 12-15). Specifically, the trial court found:

             A review of the transcript of the June 6, 2014 hearing
       shows that Appellant made no objections on the record. In fact,
       [Father’s] counsel explicitly stated that he wanted the [c]ourt to
____________________________________________


4
   Pennsylvania Rule of Appellate Procedure 302 provides, in pertinent part:
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a).



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      adopt the recommendation of [CYS]; the recommendation of
      [CYS] included the finding of aggravated circumstances.
      Appellant’s counsel raised no objection to the fact that, allegedly
      [CYS] did not raise the aggravated circumstances within twenty-
      one (21) days after determining the circumstances existed.
      [Father] raised no objection to the aggravated circumstances
      hearing occurring more than thirty (30) days after the assertion
      of aggravating circumstances. Appellant raised no objection to
      the trial court’s finding of aggravated circumstances[.] . . .

(Trial Court Opinion, 9/18/14, at 1).        The trial court’s summary of the

relevant facts is supported by the record.

      Additionally, in his brief, Father tacitly admits that he did not make a

formal objection to the finding of aggravated circumstances, but argues,

“[T]he fact that a ‘formal’ objection is not made, does not necessarily mean

that the issue has been waived.” (Id. at 12). We disagree.

      It is well-settled that:

      On appeal, the Superior Court will not consider a claim which
      was not called to the trial court’s attention at a time when any
      error committed could have been corrected.           The principle
      rationale underlying the waiver rule is that when an error is
      pointed out to the trial court, the court then has an opportunity
      to correct the error.

Fillmore v. Hill, 665 A.2d 514, 516 (Pa. Super. 1995) (citations omitted),

appeal denied, 674 A.2d 1073 (Pa. 1996); see also M.O. v. J.T.R., 85 A.3d

1058, 1061 (Pa. Super. 2014) (noting that “failure to object results in waiver

of . . . claim.”) (citing Fillmore, supra at 516).

      Here, our review of the record supports the trial court’s finding that

Father did not object on any basis to CYS’ finding of aggravated

circumstances. (See N.T. Hearing, 6/06/14, at 3-51). In fact, when CYS’

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attorney asked for the admission into evidence of Father’s guilty plea to

statutory sexual assault, Father’s attorney responded “No objection, Your

Honor.”    (Id. at 47).     Therefore, we conclude that the trial court properly

found that Father’s challenge of the aggravated circumstances determination

is waived.5 See Fillmore, supra at 516.

       Moreover, Father’s claim, that the trial court acted in violation of 42

Pa.C.S.A. §6334(b)(1)(ii) and (2) by finding that aggravated circumstances

existed beyond the time permitted in the statute, would not merit relief.

(See Father’s Brief, at 15-21). Section 6334 provides, in pertinent part:

       (b) Aggravated circumstances.─

             (1) An allegation that aggravated circumstances exist may
       be brought:

                                       *       *   *

              (ii) in a petition for a permanency hearing with
              regard to a child who has been determined to be a
              dependent child.

____________________________________________


5
   Moreover, we are not legally persuaded by Father’s argument that,
because he challenged “the timeliness of CYS’ assertion of aggravated
circumstances” during cross-examination, he preserved his issues. (Father’s
Brief, at 15; see id. at 13-14). The record reflects that, although Father’s
counsel asked when CYS became aware of his criminal history, he never
argued that its aggravated factors determination was filed untimely. (See
N.T. Hearing, 3/24/14, at 20-21; N.T. Hearing, 6/06/14, at 35). In fact,
counsel expressly stated that he was in agreement with CYS’
recommendation (which included the finding of aggravated circumstances),
and did not object to it on any basis other than Father’s supervised
visitation. (See N.T. Hearing, 6/06/14, at 48). Therefore, the record does
not support Appellant’s argument, and it does not merit relief.



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            (2) The existence of aggravated circumstances may be
      alleged by the county agency or the child’s attorney. If the
      county    agency     reasonably      believes   that     aggravated
      circumstances exist, it shall file the appropriate petition as soon
      as possible but no later than 21 days from the determination by
      the county agency that aggravated circumstances exist.

42 Pa.C.S.A. § 6334(b)(1)(ii), (2).

      Father claims that the trial court erred in finding aggravated

circumstances because CYS filed its petition beyond the twenty-one days

permitted by the statute.   (See Father’s Brief, at 16-18).    He claims that

CYS’ letter dated January 29, 2014, demonstrates that CYS was aware of

Father’s criminal history at that time, far longer than twenty-one days from

the date CYS filed its petition, April 1, 2014. (See id.). Father’s claim thus

hinges on the existence of CYS’ letter dated January 29, 2014, and the fact

that it contains sufficient information to permit CYS to conclude that

aggravated circumstances existed.

      Fatal to Father’s claim, however, is that no one admitted the letter into

evidence so, for the purpose of appellate review, it does not exist.        See

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc),

appeal denied, 916 A.2d 632 (Pa. 2007).

      Therefore, all that we know about CYS’ letter dated January 29, 2014,

is that it contained some information about Father’s criminal history. (See

N.T. Hearing, 3/24/14, at 21; N.T. Hearing, 6/06/14, at 35).       We do not

know whether it contained sufficient information to trigger a finding of

aggravated circumstances.    Accordingly, Father’s claim that the trial court

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erred in finding that aggravated circumstances existed because CYS failed to

make such allegation in a timely manner, fails.

     Moreover, our review reveals that the record supports the trial court’s

finding that aggravated circumstances existed against Father, and that there

was no abuse discretion. See R.J.T., supra at 1190

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015




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