J-S07030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: M.D. AND          :   IN THE SUPERIOR COURT OF
    Z.F., MINORS                          :        PENNSYLVANIA
                                          :
                                          :
    APPEAL OF: B.F. AND A.D.              :
                                          :
                                          :
                                          :
                                          :   No. 1523 MDA 2018

          Appeal from the Dispositional Order Entered August 27, 2018
     In the Court of Common Pleas of Schuylkill County Juvenile Division at
                       No(s): CP-54-DP-0000200-2018,
                           CP-54-DP-0000323-2015


BEFORE:     OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                     FILED OCTOBER 04, 2019

       B.F. (“Father”) and A.D. (“Mother”) (collectively “Parents”) appeal, pro

se, from the order adjudicating M.D. (d.o.b. 1/27/08) and Z.F. (d.o.b.

2/16/17) (collectively “Children”) to be dependent. We conclude that the

instant appeal is moot. Therefore, we dismiss this appeal.

       The dependency petitions here at issue were filed by the Schuylkill

County Children and Youth Services (“Agency”) in July 2018. The Agency

contends that they provided proper notice to Parents, including notification

regarding their right to counsel. The court continued the initial adjudicatory

hearing specifically to allow Father to obtain counsel. See Tr. Ct. Order,

8/8/18. After a further continuance due to apparent flooding, the trial court

ultimately conducted an adjudicatory hearing in August 2018.



*    Retired Senior Judge assigned to the Superior Court.
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       At the adjudicatory hearing, the trial court heard extensive testimony

regarding continual concerns about the medical conditions of the Children,

Parents’ drug and alcohol issues, the lack of stable housing, and conflict

among the parties with co-parenting responsibilities. Following the August

2018 hearing, the trial court found the Children to be dependent and ordered

services for the family, but did not remove the Children from the home.

Parents filed the instant timely appeal1 and the trial court issued a responsive

Pa.R.A.P. 1925(b) opinion.

       However, because Parents were uncooperative and unwilling to receive

services, especially regarding their substance abuse issues, the Agency filed

a Shelter Care Application. The court held a hearing at which Parents were

represented by counsel and, in September 2018, issued a new and more

restrictive order, which once again found the Children to be dependent.

However, this time, the court removed the Children from Parents’ physical

custody. As the trial court noted, the September 2018 order is now the

operative order in this case. Indeed, there have been two placement hearings
____________________________________________


1 Parents filed a single notice of appeal containing multiple docket numbers
from the court of common pleas in violation of Pa.R.A.P. 341. See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that
quashal is required where litigants fail to file separate notices of appeal from
an order resolving issues on more than one docket number). Subsequently,
this Court in In the Matter of: M.P., 204 A.3d 976, 981 (Pa.Super. 2019),
recognizing that previous decisional law may have been unclear, declined to
quash an involuntary termination case based on noncompliance with Rule 341.
However, Court in M.P. announced that in the future, it would quash all
noncompliant appeals. Id. at 986. Thus, because Parents filed the instant
notice of appeal in September 2018, prior to this Court’s decision in M.P. in
February 2019, we will not quash this appeal.

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since the entry of the September 2018 order, at which Parents declined to

appear and after which the trial court permitted Parents’ counsel to withdraw.

Hence, the Agency filed an application in this Court to dismiss Parents’ appeal

on mootness grounds. This Court denied the application without prejudice to

the Agency’s re-raising mootness in its merits brief, which the Agency has

done.

        Before we addressed mootness or any other aspect of the merits

briefing, we remanded to the trial court for clarification regarding Parents’

appearing at the August 2018 hearing without counsel. We did so because

there was no explanation on the record as to when or how either parent waived

the right to counsel. See 42 Pa.C.S.A. § 6337 (“If a party other than a child

appears 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

trial court issued a comprehensive responsive opinion (“Responsive Opinion”),

and we now conclude that the trial court acted properly.

        In its Responsive Opinion, the trial court explained that significant

concerns regarding the Children’s safety were raised during the first

dependency hearing.2 Although the court continued the hearing so Father

____________________________________________


2 At the hearing, grandmother, C.K. expressed concerns about alleged
mismanagement by Parents of M.D.’s medical condition. C.K. explained that
she had twice been contacted by school districts that M.D. had to be
hospitalized because he had gone into insulin shock at school. C.K. responded
to the hospital on both occasions as Parents could not be located at the time.
C.K. also expressed concern regarding her belief that M.D.’s medical coverage
had lapsed. Responsive Opinion at 2.

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could obtain private counsel on behalf of himself and Mother, the court made

it abundantly clear that due to the serious nature of the issues for Children, it

would not grant any additional continuances. It especially clarified that it was

the parties’ responsibility either to engage private counsel, as Father indicated

he intended, or to obtain appointed counsel, as mandated by law. N.T., 8/6/18

at 4; 7-8. Further, in the Responsive Opinion, the court aptly noted that the

Adjudicatory Summons, issued individually to each Parent, properly explained

the parties’ right to counsel and set forth the proper procedure for procuring

appointed counsel. Responsive Opinion at 1. It specifically stated that if the

party did not contact the Agency, by July 27, 2018, then “it will be assumed

that you do not wish to apply for court-appointed counsel.” Id.

      Thus, the court took proper steps to ensure that Parents were aware of

their right to counsel, and Parents effectively waived that right by failing to

take the necessary steps to obtain counsel by the August 2018 hearing. See

In re S.U., 204 A.3d 949, 962 (Pa.Super. 2019) (en banc) (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”).

      Next we consider whether the instant appeal is moot. In, In Re D.A.,

801 A.2d 614 (Pa.Super. 2002) (en banc), this Court explained the mootness

doctrine as follows:

      As a general rule, an actual case or controversy must exist at all
      stages of the judicial process, or a case will be dismissed as moot.
      In re Duran, 769 A.2d 497 (Pa.Super. 2001). “An issue can

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     become moot during the pendency of an appeal due to an
     intervening change in the facts of the case or due to an intervening
     change in the applicable law[.]” In re Cain, [ ] 590 A.2d 291,
     292 ([Pa.]1991). In that case, an opinion of this Court is rendered
     advisory in nature. Jefferson Bank v. Newton Associates, [ ],
     686 A.2d 834 ([Pa.Super.] 1996). “An issue before a court is moot
     if in ruling upon the issue the court cannot enter an order that has
     any legal force or effect.” Johnson v. Martofel, [797 A.2d 943,
     946 (Pa.Super. 2002)]; In re T.J., 699 A.2d 1311 (Pa.Super.
     1997).

                                     ***

     Nevertheless, this Court will decide questions that otherwise have
     been rendered moot when one or more of the following exceptions
     to the mootness doctrine apply: 1) the case involves a question of
     great public importance, 2) the question presented is capable of
     repetition and apt to elude appellate review, or 3) a party to the
     controversy will suffer some detriment due to the decision of the
     trial court. Erie Insurance Exchange v. Claypoole, [ ] 673 A.2d
     348 (Pa.Super. 1996); Commonwealth v. Smith, [ ] 486 A.2d
     445 (Pa.Super. 1984).

In Re D.A., 801 A.2d at 616.

     In this case, the dependency order entered on September 24, 2018,

which Parents have not appealed, has rendered the instant order, entered on

August 27, 2018, moot. While the August order did adjudicate the Children to

be dependent, the September order also concluded that the Children were

dependent, after even more findings regarding Parents actions after the entry

of the August order, and moreover took the additional step of removing

physical custody of the Children from Parents. Thus, the intervening

September order rendered the August order here at issue moot because even

if this Court were to reverse the August order, the September order, which




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also adjudicated the Children to be dependent and removed the Children from

Parents’ custody would remain in effect.

      Thus, due to intervening events, this Court cannot render a decision on

the August dependency order which would have any legal effect on the rights

of the parties and therefore the order is moot. See In Re D.A., 801 A.2d at

616. Accordingly, because we deem the order at issue to be moot and because

we do not conclude that any exception to the mootness doctrine applies, we

dismiss Parents’ instant appeal.

      Appeal dismissed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/04/2019




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