J. A32014/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: T.C., A MINOR               :        IN THE SUPERIOR COURT OF
                                                :             PENNSYLVANIA
                                                :
                                                :
                                                :
                                                :
                                                :
APPEAL OF: T.C., A MINOR                        :
                                                :        No. 1785 EDA 2016

                  Appeal from the Order Entered May 12, 2016
                In the Court of Common Pleas of Chester County
               Criminal Division at No(s): CP-15-DP-0000019-2015
                          FID: NO. 15-FN-000010-2015


BEFORE: DUBOW, RANSOM AND PLATT, * JJ.

MEMORANDUM BY DUBOW, J.:                                 FILED FEBRUARY 10, 2017

        Appellant, Jeremiah F. Kane, Esq. (“Attorney Kane”), appeals the May

12, 2016 Order entered in the Court of Common Pleas of Chester County

that    denied    Attorney     Kane’s     Challenge      to    the   Hearing     Officer’s

Recommendation and vacated his appointment as Guardian Ad Litem

(“GAL”) in a dependency proceeding. After careful review, we affirm.

        A   detailed   recitation   of   the   factual   and    procedural     history   is

unnecessary to our disposition.          In sum, on March 16, 2015, the Chester

County Department of Children, Youth, and Families (“Agency”), filed a

Dependency Petition alleging that T.C. (“Child”) was truant. The trial court


*
    Retired Senior Judge Assigned to the Superior Court.
J. A32014/16


had previously appointed Attorney Kane to be both the Child’s attorney and

the Child’s GAL. Order, dated 3/13/15. On April 14, 2015, the trial court

adjudicated the Child dependent due to the Child’s truancy. See 42 Pa.C.S.

§ 6302. At that time, the Child was sixteen years old and pregnant with her

second child. During this proceeding, Attorney Kane represented the Child

in a dual role as the Child’s attorney and GAL.

        On April 20, 2015, Attorney Kane motioned the trial court to appoint

an attorney for the Child due to a conflict of interest – the Child wanted to

remain at home and Attorney Kane believed it was in the Child’s best

interest for the Agency to place the Child outside of her home.1 See Motion,

dated 4/20/15. On April 24, 2015, the trial court retained Attorney Kane as

the Child’s GAL and appointed Gabriel Preston, Esq. (“Attorney Preston”), to

represent the Child as her attorney.2 See Order, dated 4/24/15.

        In May of 2015, the Agency placed the Child at Pinkney’s Vineyard of

Faith Ministries Home (“PVFM”) for pregnant teens and mothers.

        On February 22, 2016, a hearing officer conducted a permanency

review hearing.     At the time of the hearing, the Child was still placed at

PVFM; her youngest child lived with her and her oldest child did not.

Attorney Kane argued that the Child should stay in placement and that her


1
  This Motion is dated April 20, 2015, but was not docketed until May 4,
2015.
2
    This Order is dated April 24, 2015, but was not docketed until May 4, 2015.



                                      -2-
J. A32014/16


oldest child should come to live with her in placement.     Attorney Preston

advocated for the Child to return home.

     At the end of the hearing, Attorney Preston argued that the Child did

not need both a GAL and an attorney.         N.T. Hearing, 2/22/16, at 65.

Attorney Kane maintained that both the GAL and attorney were necessary

because they were advocating for different things. Id.

     The hearing officer stated on the record, “I’m going to vacate the GAL,

counsel to remain[.]” Id.

     On March 3, 2016, the trial court accepted the hearing officer’s

recommendations and entered an Order, inter alia, removing Attorney Kane

as the Child’s GAL and ordering Attorney Preston to remain as the Child’s

attorney.   On March 7, 2016, Attorney Kane filed a Challenge to the

Recommendation Vacating the GAL (“Challenge”). On March 10, 2016, the

trial court denied Attorney Kane’s Challenge as untimely pursuant to

Pa.R.J.C.P. 1191(C). On March 18, 2016, Attorney Kane filed a Motion for

Reconsideration. On April 21, 2016, the trial court held a hearing addressing

Attorney Kane’s Challenge and on May 12, 2016, the trial court denied the

Motion for Reconsideration.

        Attorney Kane appealed his removal as the Child’s GAL.           Both

Attorney Kane and the trial court complied with Pa.R.A.P. 1925.

     Attorney Kane raises the following issues on appeal:

  1. Even if the optional remedy of requesting the Judge to find error
     with the Master’s Recommendations was properly found to be


                                    -3-
J. A32014/16


      untimely, did the [t]rial [c]ourt abuse its discretion and err in
      removing [Attorney Kane] as the [GAL] in the [Child]’s
      Dependency matter, without notice or written motion from the
      party requesting said action and without any statutory authority
      for the [c]ourt to remove a [GAL] leaving her only represented
      by her attorney thereby leaving no one to advocate for the best
      interests of the [Child?]

   2. Did the [t]rial [c]ourt abuse its discretion and err in dismissing
      the Child’s Motion/Challenge to Master’s Findings and
      Recommendations based on untimeliness as Kane, in fact,
      complied with the three (3) day time period to file under the
      requirements of Pa.R.J.C.P. 1191 and in light of the fact that
      there was no entry on the docket that the Recommendation was
      ever served on Kane and that no 231 Pa. Code Rule 236(b)
      notice was given and, as a result, the three day period for him to
      challenge the Master’s findings and Recommendations never
      began?

Attorney Kane’s Brief at 6 (reordered for ease of disposition).

      We review a trial court’s decisions in a child dependency proceeding

for an abuse of discretion.    In re E.P., 841 A.2d 128, 131 (Pa. Super.

2003). “We must accept the facts as found by the trial court unless they are

not supported by the record.” Id. (quotation and citation omitted). It is our

responsibility to ensure that the trial court has applied the appropriate legal

principles to the record while still affording great weight to the court’s fact-

finding function, as the trial court is in the best position to observe and rule

on the credibility of the parties and witnesses. Id.

      When determining the role of an attorney, the Pennsylvania Rules of

Juvenile Court Procedure (“Rules of Juvenile Procedure”) focus, inter alia, on

whether the basis for the adjudication of dependency is for status offenses




                                     -4-
J. A32014/16


or a parent’s failure to provide proper care and control.3 Pa.R.J.C.P. 1151.

When the basis for the adjudication of dependency is for status offenses, the

court must appoint an attorney to advocate for a child’s legal interests,

which in the context of a dependency proceeding is essentially a child’s

wishes, even if that child’s wishes are in opposition to that child’s best

interests. Pa.R.J.C.P. 1151(B) and (C).

      In contrast, if the basis for the dependency determination is that a

child is without proper parental care and control, the trial court is required to

appoint a GAL to advocate for that child’s wishes and that child’s best

interests.4 Pa.R.J.C.P. 1151(A).

      The reason for the distinction is that when a dependency petition

alleges status offenses, a child’s conduct is at issue and consequently that

child needs to have an attorney representing that child’s legal interests and

wishes to the court. When the basis for the dependency proceeding is the

failure of a child’s parents to provide proper parental care and control, the

focus of the hearing is on the parents’ conduct and it may be sufficient for

3
  Status offenses are defined as “conduct which if engaged in by an adult
would not be legally prohibited.” In the Interest of R.B., 621 A.2d 1038,
1042 n.11 (Pa. Super. 1993) (citations omitted). The 1977 amendments to
the Juvenile Act reclassified status offenses as dependency rather than
delinquency matters. Id. at 1042. Examples of status offenses include
truancy, running away, and ungovernability. Id.
4
  We note that if a child’s wishes conflict with the GAL’s belief of the best
interests of that child, the GAL has a conflict and the court may separate the
representation by retaining the GAL to act solely as the child’s attorney and
appointing a new GAL. Pa.R.J.C.P. 1151 cmt.



                                      -5-
J. A32014/16


the court to appoint a GAL to represent that child’s wishes and best

interests without conflict.

      Attorney Kane first argues that the trial court abused its discretion

when it removed him as the Child’s GAL without notice or written motion.

Attorney Kane’s Brief at 20. This issue lacks merit.

      We note initially that at the February 22, 2016 hearing, before the

hearing officer made the recommendation to remove Attorney Kane as GAL

in open court, Attorney Kane had notice that Attorney Preston was

requesting the removal of the GAL and Attorney Kane had an opportunity to

state his position.

      Moreover, there is no legal basis to support Attorney Kane’s argument

that the court must provide written notice before vacating the appointment

of a GAL. Because there is no specific statutory requirement that the court

provide written notice before vacating the appointment of a GAL, the trial

court did not err in vacating Attorney Kane’s appointment on the record in

open court, after giving parties an opportunity to be heard.

      Attorney Kane next argues that the trial court abused its discretion

when it removed him as the Child’s GAL leaving the Child solely represented

by an attorney. See Attorney Kane’s Brief at 27. We disagree.

      The basis for the adjudication of dependency in this case was the

Child’s truancy, which is a status offense.   See In the Interest of R.B.,

supra at 1042. Consequently, the Rules of Juvenile Procedure only require



                                    -6-
J. A32014/16


the appointment of an attorney to represent the Child’s legal interests and

wishes. Pa.R.J.C.P. 1151(B).

      Moreover, the Rules of Juvenile Procedure do not mention the need

for a GAL when the basis for adjudication is a status offense and thus, the

Rules do not authorize the appointment of one. Id. Further, when the basis

for adjudication is a status offense, we are confident that the trial court, who

hears the evidence in its totality, is capable of determining the best interests

of a child without a GAL.      Therefore, the trial court did not abuse its

discretion when it vacated the appointment of Attorney Kane as GAL.

      Attorney Kane finally argues that the trial court abused its discretion

when it dismissed Attorney Kane’s Challenge as untimely. Attorney Kane’s

Brief at 20. We disagree.

      The Honorable Ann Marie Wheatcraft, sitting as the trial court judge,

authored a thorough and well-reasoned opinion, citing to the record and

relevant authority in addressing Attorney Kane’s claim that his Challenge

was timely. After a careful review of the parties’ arguments and the record,

we affirm on the basis of the trial court’s opinion which concluded that: (1)

Attorney Kane received the recommendation to vacate the GAL on February

22, 2016, when the hearing officer announced it on the record in open court;

(2) the Rules of Juvenile Procedure gave Attorney Kane three business days

after he received the recommendation to file a challenge; (3) Attorney Kane

was required to file a timely challenge by March 1, 2016; and (4) Attorney



                                     -7-
J. A32014/16


Kane did not file his Challenge until March 7, 2016, rendering it untimely.

See Trial Court Opinion, filed 7/1/16, at 3-6.

      The parties are instructed to annex the trial court’s July 1, 2016

Opinion to any future filings.

      Order affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2017




5
  Appellee’s request for attorney’s fees summarily asserted in Appellee’s
Brief is denied.



                                     -8-
                                                                                           Circulated 01/20/2017 12:10 PM




         IN THE INTEREST OF                                         lN THE ,Jl;vENILE COCRT OF
                                                                    CHESTER COli~TY1 PENNSYLVA~IA
         T. C., A MINOR
                                                                    JUVENILE DIVISION - DEPENDENCY

                                                                    DOCKET NO: CP-15-DP-0000019-2015
                                                                    FID: J 5-FN-000010-2015

                                                                            1785 F.DA 2016
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                 .. .J:::;                                                               f''l1
                                                                                           :.~J-:;
                 u T. C. (''the minor") was adjudicated Dependent on April 14CZC'15.-Qn Afffil 24,
                                                                                       ~. - • ~::i          zr:   1:..;,
          2015, Jeremiah F. Kane, Esquire was appointed as the minor's;~G.tiprdian Aaf:.J_item
                                                                                       .         (./)       -<o
          ("GAL") and Gabriel Preston, Esquire was appointed as the minor's Attorney. Mr. Kane

          represented the minor as the GAL and Mr. Preston represented the minor as her

          Attorney at all subsequent proceedings. The hearing at issue in this Appeal took place

          on February 22, 2016. At that time, the Order appointing Mr. Kane as GAL was vacated.

          On March 7, 2016, Mr. Kane filed a Challenge to the Recommendation vacating the

          Order and on March 10, 2016 we denied the Challenge as untimely. Mr. Kane filed a

          Motion for Reconsideration on March 1.8. 2016.1 A hearing to address the timeliness of

          Mr. Kane's Challenge to the Recommendation of February 22, 2016 was held on April

          21, 2016. After considering all of the evidence and the arguments presented, we again

         determined that Mr. Kane's Challenge was untimely and executed an Order on May 12,

         2016.

                             Mr. Kane filed this present Appeal on May 25. 2016, and submits that this Court


           Chester County Department of Children, Youth and Families ("CYF") filed a response on
         March 25. 2016. We .did not consider CYF's response as 11 was not filed by a licensed attorney.

                                                                                                                  Page 1 ~f 7
I1
     erred in finding that his Challenge was untimely and in failing to address his Challenge

     to the Recommendation to vacate his appointment as GAL.

                                    PROCEDURAL BACKGROUND
             The minor first came to the attention of the Chester County Department               of

     Children. Youth and Families ("CYF'') in the fall of 2014. It was reported to CYF that the

     minor was missing school due to her lnability to obtain child care for her own chlid ;

     during school days. CYF opened a case for this minor in December 2014 to address the

     issue of truancy. Upon further investigation, it was determined by CYF that the Minor

     had both transportation to school and day care set up with the Young Parent's Program.

     (Dependency Petition, 03/13/15, pars. 1-6, 9). Nonetheless, the minor continued to miss

     school and a Dependency Petition was filed on March 13, 2015. At the Adjudication

     Hearing of March 30, 2015, the minor was found to be a Dependent Child as a result of

     truancy. (Order, 03/30/15).

             Subsequent to the adjudication of dependency, several hearings took place. The

     most recent hearing was held February 22, 2016 before Hearing Officer Clay N. Cauley,

     s-.'   At the conclusion   of the February 22. 2016 hearing, Hearing Officer Cauley

     announced his Recommendation          in open court to all the parties. Both immediately

     before and immediately      after testimony was taken during the proceeding,        Mr. Kane

     made argument regarding the issues that had arisen between him and the minor. Mr.

     Kane's recommendations        to the Hearing Officer had been contrary to the wishes of his

     client. Due to this conflict and the minor already having Mr. Preston as her Attorney, the

     Order appointing a GAL was vacated. This was also done in open court in the presence

     of all the parties and counsel. (N.T., 02/22/16, pp. 65-66).
     -----------
     2
       Hearing Officer Cauley has presided over all of the proceedings in this matter.

                                                                                          Page 2 of 7
!I                                                                                                                               I
i           A written Recommendation was prepared on February 22, 2016 and presented to

     the Court for review. The Recommendation was accepted on March 3, 2016.                                 On March

     7, 2016,   Mr. Kane filed his Challenge            to the Recommendation                   vacating the GAL. On

     March 10, 2016 we denied Mr. Kane's                Challenge   as untimely. Mr. Kane filed a Motion

     for Reconsideration      on March 18, 2016.           A hearing            addressing       the timeliness      of Mr

     Kane's Challenge to the Recommendation of February 22. 2016 was held on April 21,

     2016. After that hearing,             we reiterated that Mr. Kane's Challenge was untimely and

     executed an Order on May 12. 2016. On May 25. 2016 Mr. Kane filed this Appeal.

                                                ERRORS ON APPEAL

            Mr. Kane presents one error, but we find that for purposes of examination there

     are two (2) errors alleged:

                t. The Court erred in finding the Challenge filed on March 7. 2016

                   was untimely; and

                2. The Court erred in failing to re-appoint a GAL for the minor.

                                                 SCOPE OF REVIEW

     This matter is governed by the Juvenile Act (42 Pa.C.S.A.                     §6301, et seq.). The Superior

     Court's scope of review is limited to an "abuse of discretion" standard. The Superior

     Court is bound by the facts as found by this Court and the determinations                           made unless

     they are not supported in the record. In re AP .. 728 A.2d 375, 378 (Pa.Super.                           1999); In

     the Interest of C.J. R.. 782 A.2d 568, 569-70 (Pa.Super.                    2001 ).

                                                    DISCUSSION

                                          Mr. Kane's Challenge Was Untimely

            We conducted an evidentiary             hearing addressing the issue of timeliness                    on April

     21, 2016. After that hearing, we made the following findings of fact:
                                                                                                                  Pag\; 3 oi 7




                           ............   __        -               .. ,,,,._    _         ..
     1.   Mr     Kane was   fully aware of tile Recoc-:n1enda1ion to vacate the Order             !
          appointing him as GAL at the conclusion of the hearing on February 22,

          2016. (N.T., 04/21/16, Kane, p. 14, 11. 1-4).

     2. The Court adopted the Recommendation              by entering an Order eight (8)

          business days after the hearing, on March 3, 2016. (Order, 03/03/16).

     3. The Challenge was filed March 7. 2016, two (2) business days after the

          Order was signed by the Court.

     4. The Challenge was denied as untimely on March 10, 2016.                    (Order,

          03/10/16).

     5. Mr. Kane is an experienced attorney who has represented minors as a

          GAL in Chester County dependency matters for 25 years. (N.T.. 04/21/16,

          Kane, p. 15, II. 7-8).

     6. Immediately after the February 22. 2016 hearing, Mr. Kane discussed

          filing a Challenge       to the hearing officer's   Recommendation     with Mr.

          Preston. (N.T., 04/21 /16, Kane, p. 14. ll. 20-23, Preston, p. 11, II. 17-22).

     7. The       Recommendation       was docketed     on February    22, 2016.      (N.T .. ,

          04/21/16, Exh. GAL 8 (Docket)).

     8. Mr. Kane testified that he called the Dependency Administrator on March

          2. 2016 and understood the written Recommendation was ready for him to

          pick    up. Mr. Kane went        on to testify that he requested       that the

          Recommendation be mailed to him. (N.T., 04/21/16, Kane. p. 14, ll.14-17).

     9. There was no testimony or evidence related to whether Mr. Kane inquired

          as to when the Recommendation was forwarded to the supervisfng judge

          for review and approval.
                                                                                   Page 4 of 7




II
'. I
l   !

!j
i·              Upon carefully considering the evidence presented and the relevant rules cf j

        Pennsylvania Rules of Juvenile Court Procedure, we explained our determination in our

        May 12, 2016 Order:

                    Dependency matters are in constant flux. Stability is the goal for
                    children in dependency. and that can only be attained through
                    expedient determinations and even more expedient resolutions
                    to objections to those determinations. Hence. a mechanism is in
                                                                                                                              i
                    place to accelerate dependency . proceedings [as set forth in                                             I
                                                               .

                    Rule 1191 J.                                                                                     I
        ( See Order, 03/3/16).
                                                                                                                     I
                It is directed in Rule 1191 (A) that a master "shall announce                   in open court on the I

        record.     the master's findings". Pa.R.J.C P. 1191(A). That was done in this case.3 (See

        N.T.,   02/22/16,   pp. 60-66).                     The hearing officer    is also directed   to submit    his

        Recommendation          to the presiding judge within two days of the hearing. Pa.R.J.CP.

        1191(8). This was also done as reflected on the docket. (Hearing, 04/21/16, Exh. GAL 8

        (Docket)). Rule 1191 goes on to state that a challenge must be filed within three (3)

        days of receipt of the recommendation and that the written Recommendation                          need not

        be attached to the challenge.4 Pa.R.J.C.P. 1191(C). There is also a time constraint

        placed on the presiding judge. A recommendation                           must be reviewed within seven (7)

        days.     Pa.R.J.C.P.     1191(0). As a result, Mr. Kane was fully aware that the written

        Recommendation          had to be forwarded to the presiding judge for review no later than
                                                                                                                          I
        February 24, 2016. and that the Court would be making a determination on or about                                 I
                                                                                                                          I
                                                                                                                          I
        _______ ....                    _
        :; Pa.R.J.C.P. 1191 (Master's Findings and Recommendation to the Judge) ("Rule 1191"L
        • The parties and counsel are placed on notice of any possible issues to challenge at the
        conclusion of each hearing. We find Rule 1191 permits an expedient challenge to be made
        without a delay due to the preparation of a written recommendation. Pa.R.J.C P 1191(A).
                                                                                                            Page 5 cf 7




                                      """'   ..   ,,_,,,,        _._,              _
March 2, 20165. As a result, as soon as the February 22. 2016 hearing was concluded

Mr. Kane had notice that any Challenge he wished to file was due no later than March

    1, 2016.5 Any other application of Rule 1191 contradicts the goal of expediency required

in dependency matters and would thwart the Court's ability to function expeditiously in

the best interests of a child.7

                                        Vacating the GAL

          Mr. Kane submits that we did not have the authority to vacate the Order whereby

he was appointed GAL in this case without written notice or request by motion \/Ve

disagree.

          The record reflects that the minor is represented by an Attorney, Mr. Preston.

The record is also clear that the status of this minor as a dependent child Is pursuant to

42 Pa.C.S.A. §6302 (Dependent Child (5)), a child that is subject to compulsory school

attendance is habitually and without justification truant from school, a determination that

was made on March 30, 2015. This determination has never changed.

          Pa.R.J.C.P.   1151 sets forth when a GAL is to be appointed and when an

Attorney is to be appointed in a child dependency case. Specifically, when a child is

deemed dependent pursuant to Pa.C.S.A. §6302 (Dependent Chrld (5)), the child is

entitled to an "attorney", not a GAL. (See 42 Pa.C.S.A. § 6311 (a)). "When a proceeding,

including a master's hearing, has been initiated alleging that the child is a dependent

child under paragraph (1}, (2), (3). (4) or (10) of the definition of "dependent child" in



s 2016 is a leap year with the leap day being observed on February 29, 2016.
6
   Due to the Court's schedule, the Order WpS not processed until March 3, 2016                   .
7                                                                                                 I
   Mr. Kane cited two cases, In Re: L. M., 923 A.2d 505 (Pa.suoer. 2007) and Frazier v. City of
Philadelpl1ia. 735 A.2d 113 (Pa. 1999). at the April 21, 2016 hearing to support his argument of
timeliness. (N.T., 04/21/16, p. 21). We did not find these cases binding. These decisions
addressed the trial court proceedings prior to the effective date of Rule 1191, February 1, 2007.
                                                                                        Page 6 cf 7




                                  --·         _          _
: 1   section 6302 (relating to definitions). the court shall appoint a ... [GAL] to represent tne
  I
      legal interests and the best interests of the child." Subsection (5) is explicitly left out as a

      circumstance where a GAL will be appointed. This restriction in the appointment of a

      GAL is again emphasized in Rule 1151 which states that the child is appointed an

      Attorney, not a GAL in truancy matters. Pa.R.J.C.P. 1151 (B)(1 )(a). Therefore, it was not

      error for the Court to vacate the GAL Order.

             As to Mr. Kane's assertion that it was improper for the Court to act sue sponte.

      we note that there is no authority preventing the Court from such action. To the

      contrary, this Court is always under an obligation to act within the rules set before it and

      in the best interests of the child. 42 Pa.C.S.A § 6351.

                                                    CONCLUSION

             The evidence presented supports our finding that Mr Kane's Challenge was

      untimely and it was not error to vacate the Order appointing him as GAL in this case.

      For the foregoing reasons, the Court respectfully requests that our May 12, 2016 Order

      be AFFIRMED.




                                                        BY THE COURT:




                                                                                            Page 1 of 7




                              ...........   ,,,,,   ··---
