J-A20036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF G.L.P., A MINOR                    IN THE SUPERIOR COURT OF
IN THE INTEREST OF C.L.P., A MINOR                          PENNSYLVANIA



APPEAL OF: G.P.T. AND C.L.R.,
BIOLOGICAL PARENTS

                           Appellant                      No. 3485 EDA 2014


             Appeal from the Order Entered on October 31, 2014
            In the Court of Common Pleas of Philadelphia County
           Juvenile Division at Nos.:   CP-51-DP-0002355-2013
                                        CP-51-DP-0002361-2013


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                 FILED AUGUST 12, 2015

      G.P.T. (“Mother”) and C.L.R. (“Father”) (collectively “Parents”) appeal

the October 31, 2014 order that denied their motion in this dependency case

involving their children, C.L.P. (born in January 2010) and G.L.P. (born in

June 2013) (collectively “Children”).            In the motion, Parents sought to

vacate   the   trial   court’s   findings   of    dependency   and   of   aggravated

circumstances, to re-open the record for the dependency hearing, and for

reconsideration of the court’s order denying the entry of an appearance by

one of Parents’ attorneys.         After careful review, we affirm in part and

reverse in part.

      The trial court set forth the factual and procedural history as follows:

      On November 22, 2013, the Department of Human Services
      (“DHS”) received a Child Protective Services (“CPS”) report
      alleging that [G.L.P.] was taken to the Children’s Hospital of
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     Philadelphia (“CHOP”) Emergency Room for a seizure-like
     episode. The report further alleges that Mother took [G.L.P.] to
     CHOP Emergency Room because on November 21, 2013,
     [G.L.P.] was having difficulty opening his eyes, was non-
     responsive, and was stiff when Mother picked him up. The
     report allege[d] that Mother stated that [G.L.P.’s] two-year-old
     cousin had pulled [G.L.P.] off the bed two months prior to this
     incident causing [G.L.P.] to hit his head on a wooden floor. The
     report alleged that [G.L.P.] was found to have a mixed brain
     density subdural hematoma with a mid-line shift. The findings at
     CHOP were indicative of non-accidental trauma. [G.L.P.] was
     given a full physical at CHOP by Dr. Stephanie Deutsch. Dr.
     Deutsch determined that [G.L.P.] was in critical condition but
     was expected to survive and the injury was certified as a near
     fatality. Subsequently, [G.L.P.] was admitted to the Intensive
     Care Unit (“ICU”) at CHOP.           Parents did not have any
     explanation for the recent trauma to [G.L.P.]. The CPS Report
     also alleged that Mother stated that she is the primary caregiver
     for [Children] and that both parents live with both children. On
     November 22, 2013, an Order for Protective Custody (“OPC”)
     was obtained for [C.L.P.] due to [G.L.P.’s] unexplained injuries.
     On November 26, 2013, an OPC was obtained for [G.L.P.] since
     DHS learned that he would be discharged from CHOP that day.
     DHS further learned that maternal cousin, and his wife, were
     willing to care for [Children] and that Father had also agreed to
     a home assessment. On November 27, 2013, DHS visited
     Parents’ home and learned that three other adults lived in the
     home, [and] that the adults rented rooms within the home. On
     November 27, 2013, DHS visited the home of maternal cousin
     and learned that the home was appropriate, that there were two
     additional children in the home, and that there was a room ready
     for [Children,] but DHS was unable to clear the family members
     because they did not have social security numbers.

     On November 29, 2013, a shelter care hearing was held and the
     trial court lifted the OPC and ordered the temporary commitment
     to DHS to stand.          On December 3, 2013, DHS filed a
     Dependency Petition indicating that there was a sufficient basis
     to find that aggravated circumstances exist[ed] pursuant to 42
     Pa.C.S.A. § 6302(2).        On March 24, 2013, the trial court
     adjudicated the [Children] dependent pursuant to paragraph[]
     (1) of the definition of a “Dependent Child” under 42 Pa.C.S.A.
     § 6302. The court found aggravated circumstances pursuant to
     the Juvenile Act[,] 42 Pa.C.S.A. § 6302(2)[,] and found Parents


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     as perpetrators of child abuse pursuant to 23 Pa.C.S.A.
     § 6303(b)(i) and 23 Pa.C.S.A. § 6303(d). It should be noted
     that at the adjudication trial on March 24, 2014, both Father and
     Mother were represented by privately retained counsel, Donald
     Benedetto and Clint Orem respectively. On April 23, 2014,
     Father’s privately retained attorney, Mr. Benedetto, Esquire, filed
     a Notice of Appeal appealing the Order entered on March 24,
     2014. Mr. Benedetto also filed a Motion for Reconsideration,
     which was denied on April 29, 2014. On May 20, 2104, Mr.
     Benedetto withdrew Father’s Notice of Appeal and requested to
     withdraw his representation of Father.        Thereafter, Parents
     obtained private counsel Karenina Wolff, Esquire, to represent
     both Mother and Father. On June 20, 2014, three months after
     the Order adjudicating the [Children] dependent, Ms. Wolff filed
     an untimely Motion for Reconsideration to Reopen Order of
     Aggravated Circumstances and Adjudication, which was denied
     on August 7, 2014. On October 23, 2014, an unknown attorney,
     Mark D. Freeman, Esquire, sent an inappropriate email to Judge
     Fernandes, the law clerk to Judge Fernandes, the City Solicitor,
     the Child Advocate, Grandparent’s attorney, and Ms. Wolff. The
     law clerk to Judge Fernandes intercepted the email and gave
     notice to the Judge.          This email contained confidential
     information that attorneys of record in this matter had not seen
     before and unsubstantiated allegations. Mr. Freeman claimed
     that he “intended to enter his appearance to represent Parent[s’]
     along with Ms. Wolff,” although Mr. Freeman was unknown to
     the court and never attended any hearings on behalf of Parents.
     On October 28, 2014, over five months after the March 24,
     2014, Order was entered, Ms. Wolff again filed another untimely
     Motion to Vacate the Court’s Finding of Dependent, Vacate the
     Court’s Finding of Aggravated Circumstances, and Reopen the
     record for the dependency hearing [“Motion to Vacate”],
     essentially, a third Motion for Reconsideration. On October 31,
     3014, a permanency review hearing and a hearing for the Motion
     were held. At this hearing, Ms. Wolff stated that Mr. Freeman
     was her co-counsel.          However, the trial court denied
     appointment of co-counsel because Ms. Wolff did not follow the
     proper procedures nor did she comply with the rules to have Mr.
     Freeman as co-counsel. Parents[’] Motion before the court was
     denied with prejudice.




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Trial Court Opinion (“T.C.O.”), 3/16/2015, at 1-3 (citations to record

omitted).

       On November 26, 2014, Parents filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On March 16, 2015, the trial court filed a Pa.R.A.P.

1925(a) opinion.1

       Parents raise two issues for our review:

       I.     Did the trial court violate Parents’ due process rights, the
              expressly stated purposes of the Juvenile Act, and Title 42
              Pa.C.S.A. § 6351(e)(1), relating to Permanency Review
              hearings by dismissing Parents’ Motion to Vacate the
              Court’s Findings of Dependency, to Vacate the Court’s
              Finding of Aggravated Circumstances and to Reopen the
              Record for the Dependency Hearing Based on Dr.
              Deutsch’s Fraudulent Testimony to the Court and New
              Evidence Obtained by Natural Parents?

       II.    Did the trial court violate Parents’ due process right to an
              attorney under 42 [Pa.]C.S.A. § 6337 and abuse its
              discretion by denying Attorney Mark Freeman’s Entry of
              Appearance?

Parents’ Brief at 8 (issues reordered).




____________________________________________


1
      The Rule 1925(a) opinion and certified record were due to this Court
on December 26, 2014, pursuant to the rule for Children’s Fast Track cases.
See Pa.R.A.P. 1931(a)(2).        However, the trial court, despite repeated
delinquent record notices and requests from this Court, did not file its
opinion until March 16, 2015. This Court received the certified record two
days later. The trial court’s inaction resulted in an almost three-month delay
in the scheduling of this case.



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J-A20036-15



      Parents challenge the denial of their motion to vacate the dependency

and the finding of aggravated circumstances. The trial court, relying upon

42 Pa.C.S.A. § 5505, found that the motion was filed more than thirty days

after entry of the order and that it did not have jurisdiction to modify or

vacate the dependency adjudication.     T.C.O. at 6-7.   Here, Children were

adjudicated dependent on March 24, 2013. The instant motion was filed on

October 28, 2013, seven months after the adjudication and three months

after Parents’ second motion for reconsideration.

      Parents provide no specific authority to support their position that the

trial court could vacate the order seven months after its entry.      Instead,

Parents argue generally that a court may grant a new trial upon the basis of

after-discovered evidence. Parents’ Brief at 46-48. Parents also argue that

the trial court may reopen an order for extraordinary cause. Id. at 49-50.

Finally, Parents argue that the court refused to hear new evidence at the

permanency review hearing in violation of 42 Pa.C.S.A. § 6351. Id. at 55-

56. We address these arguments in turn.

      In arguing that the order could be rescinded upon the basis of after-

discovered evidence, Parents rely upon In re Estate of Roart, 568 A.2d

182, 187-88 (Pa. Super. 1989). In that case, in which a petitioner sought

review of an orphans’ court adjudication, this Court stated:

      The grant or refusal of a new trial or by analogy the opening of
      an adjudication in the orphans’ court on the grounds of after-
      discovered evidence is discretionary with the trial court and will
      not be reversed on appeal except for an abuse of discretion. To
      justify the grant of a new trial on the basis of after[-]discovered

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J-A20036-15


      evidence, the evidence must have been discovered since the trial
      and must be such as would not have been obtainable by the use
      of reasonable diligence and must not be cumulative or merely go
      to impeach the credibility of a witness. The after-discovered
      evidence must also be likely to have compelled a different result.
      In addition, a review of an adjudication based on after-
      discovered evidence is not a matter of right, but rests in the
      sound discretion of the court. This discretion is to be exercised
      cautiously and sparingly and only under circumstances which
      demonstrate it to be indispensable to the merits and justice of
      the cause.

Id. at 187-88 (citations and quotation marks omitted).

      The “after-discovered evidence” at issue here is an expert report

obtained by Parents on October 25, 2014.           Motion to Vacate, 10/28/2014,

¶¶ 2-3. The report allegedly contradicted Dr. Deutsch’s testimony regarding

the etiology of G.L.P.’s injuries. Id. at ¶¶ 15-20, 22-24, 26-29. Although

this report was obtained after the dependency adjudication, Parents have

presented no argument why it “would not have been obtainable by the use

of reasonable diligence” prior to trial. See Roart, supra. In fact, Parents

concede that it could have been obtained prior to trial. Parents’ Brief at 47.

      Instead,   Parents   assert   that   prior    counsel   “failed   to   exercise

reasonable due diligence.”    Id.   We may regard this as a claim that prior

counsel provided ineffective counsel. However, Parents have not developed

this argument. Instead, Parents merely state that prior counsel could have

obtained an expert to dispute Dr. Deutsch’s testimony and that Parents’ lack

proficiency in the English language meant that they did not understand the

proceeding or counsels’ deficiency. Id.



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       We require more to entertain such an argument. Parents do not cite

any case law suggesting the standard for ineffective assistance of counsel or

supporting their position that counsel was ineffective. For lack of citation to

authority and development, we must find any argument that prior counsel

was ineffective to be waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.

Super. 2011) (“[W]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”).2

Because their ineffectiveness of counsel argument is waived and Parents

offer no other valid reason why the expert report could not have been

obtained before trial, we find no merit to the argument that a new hearing

should have been granted upon the basis of after-discovered evidence.

       Parents also argue that, pursuant to section 5505, an order may be

revisited beyond thirty days for extraordinary cause.       We have defined

extraordinary cause as “an oversight or action on the part of the court or the

judicial process which operates to deny the losing party knowledge of the

entry of final judgment so that the commencement of the running of the

appeal time is not known to the losing party.” Manufacturers & Traders


____________________________________________


2
       If the claim were not waived for lack of development, we would also
find it waived because Parents did not include any claim of ineffectiveness of
counsel in their Rule 1925(b) concise statement.              See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the [concise statement] . . . are
waived”).



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J-A20036-15



Trust Co. v. Greenville Gastroenterology, SC, 108 A.3d 913, 919 (Pa.

Super. 2015). “[M]istakes or ordinary neglect by counsel do not constitute

extraordinary circumstances. . . .    We have also held that extraordinary

cause does not exist where a party has notice of the entry of a final order.”

Id.

      Here, the only extraordinary cause cited by Parents is the medical

report that disputes Dr. Deutsch’s testimony.     This material, which could

have been obtained earlier, does not constitute the type of extraordinary

cause as defined in our precedent. Parents were aware of the dependency

adjudication.   In fact, they filed a notice of appeal from that order before

withdrawing their appeal. This claim does not merit relief.

      Finally, Parents assert that the trial court violated 42 Pa.C.S.A.

§ 6351(e)(1), because the statute provides that the court shall determine

“the extent of progress made toward alleviating the circumstances that

necessitated the original placement of the children.”   Parent’s Brief at 55.

Parents argue that the medical report is evidence that G.L.P.’s injuries were

not caused by abuse, which alleviates the need for placement. Id. at 55-56.

      The statute provides as follows:

      (1) The court shall conduct a permanency hearing for the
      purpose of determining or reviewing the permanency plan of the
      child, the date by which the goal of permanency for the child
      might be achieved and whether placement continues to be best
      suited to the safety, protection and physical, mental and moral
      welfare of the child. In any permanency hearing held with
      respect to the child, the court shall consult with the child
      regarding the child’s permanency plan in a manner appropriate
      to the child’s age and maturity. If the court does not consult

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     personally with the child, the court shall ensure that the views of
     the child regarding the permanency plan have been ascertained
     to the fullest extent possible and communicated to the court by
     the guardian ad litem under section 6311 (relating to guardian
     ad litem for child in court proceedings) or, as appropriate to the
     circumstances of the case by the child’s counsel, the court-
     appointed special advocate or other person as designated by the
     court.

42 Pa.C.S.A. § 6351(e).

     Our review of the hearing transcript demonstrates that the trial court

reviewed the placement of Children, their safety in their current placement,

their developmental and medical progress, and C.L.P.’s wishes regarding

reunification with Parents.   Further, the court heard testimony regarding

Parents’ compliance with their service plans and the difficulty that DHS had

in obtaining services for Parents given their lack of English proficiency and

their lack of social security numbers.   We find nothing unusual about the

permanency hearing and find no error by the trial court in its compliance

with section 6351(e).

     Further, during the dependency hearing, which was held prior to

arguments on Parents’ motion, Parents did not attempt to introduce their

expert’s report or testimony. Parents cannot claim that the trial court erred

in failing to consider the report in determining whether placement was still

necessary at the permanency hearing when Parents did not even attempt to

introduce the evidence.

     Finding no merit in Parents’ arguments, the trial court necessarily did

not err in denying Parents’ motion to vacate the dependency adjudication or


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the finding of aggravated circumstances when it was filed more than thirty

days after entry of the orders.

      Parents also challenge the denial of Attorney Freeman’s entry of

appearance.    Parents argue that the trial court denied them due process

when it denied his entry of appearance.             Parents assert that Attorney

Freeman complied with Pa.R.J.C.P. 1150 when he entered his appearance

and that the trial court did not specify what rules Attorney Freeman did not

follow when it denied his appearance. Parents contend that no rules related

to confidentiality or conflicts of interest were violated by Attorneys Freeman

and Wolff. Finally, Attorney Freeman contends that he did not engage in ex

parte communication with the court, because the email he sent was copied

to all relevant parties. Parents’ Brief at 33-41.

      “When reviewing a trial court’s order on disqualification of counsel, we

employ a plenary standard of review.”         Vertical Res., Inc. v. Bramlett,

837 A.2d 1193, 1201–02 (Pa. Super. 2003). We agree with Parents that the

trial court has cited no authority by which it could deny Attorney Freeman’s

appearance. However, we have held that:

      [c]ourts may disqualify attorneys for violating ethical rules. On
      the other hand, courts should not lightly interfere with the right
      to counsel of one’s choice. Thus, disqualification is appropriate
      “only when both another remedy for the violation is not available
      and it is essential to ensure that the party seeking
      disqualification receives the fair trial that due process requires.”

Weber v. Lancaster Newspapers, Inc., 878 A.2d 63, 80 (Pa. Super.

2005) (citations omitted).

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     In discussing the disqualification of an attorney, we said:

     a trial court’s ability to disqualify counsel based on . . . a
     violation of the Rules of Professional Conduct is severely limited
     and can be exercised only when both another remedy for the
     violation is not available and it is essential to ensure that the
     party seeking disqualification receives the fair trial that due
     process     requires.      [In   McCarthy      v.   Southeastern
     Pennsylvania Transportation Authority, 772 A.2d 987 (Pa.
     Super. 2001)], we examined the pertinent law regarding a trial
     court’s power to disqualify a party’s counsel of choice:

        We recognize a trial court’s authority to sanction counsel
        based on violations of the Rules of Professional Conduct.
        In Commonwealth v. Lambert, 765 A.2d 306 (Pa.
        Super. 2000), this Court recently stated that a trial court
        may sanction, warn or recommend disciplinary action
        against an attorney who has violated a Rule of Professional
        Conduct.      Lambert, 765 A.2d at 345-46.         Although
        disqualification and removal is an appropriate sanction in
        some cases, it is a serious remedy “which must be
        imposed with an awareness of the important interests of a
        client in representation by counsel of the client’s choice.”
        Slater v. Rimar, Inc., 338 A.2d 584, 590 (Pa. 1975). . . .

        A court’s authority to disqualify counsel based on Rules of
        Professional Conduct is limited.     In In re Estate of
        Pedrick, 482 A.2d 215 (Pa. 1984), our Supreme Court
        stated that “this court has held in several cases that
        counsel can be disqualified for violations of the Rules of
        Professional Conduct where disqualification is needed to
        ensure the parties receive the fair trial which due
        process requires.” Pedrick, 482 A.2d at 221 (emphasis
        added). Our Supreme Court continued:

           Thus, while it may be appropriate under certain
           circumstances for trial courts to enforce the Code of
           Professional Responsibility by disqualifying counsel
           or otherwise restraining his participation or conduct
           in litigation before them in order to protect the rights
           of litigants to a fair trial, we are not inclined to
           extend that enforcement power and allow our trial
           courts themselves to use the Canons to alter
           substantive law or to punish attorney misconduct.

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      Id.

Vertical Res., Inc., 837 A.2d at 1201 (citations modified, emphasis in

original).

      Instantly, the trial court stated that it disqualified Attorney Freeman

because he sent an ex parte email to the court, and because he did not have

a retainer agreement with Parents.          The trial court also reprimanded

Attorney Wolff for sharing information with Attorney Freeman and for failing

to obey the rules of court and professional conduct.     The court also cited

Parents’ limited proficiency in English and a need to protect Parents’

interests. T.C.O. at 5.

      First, any alleged violations of the rule of professional conduct by

Attorney Wolff would go to her disqualification or reprimand, not to Attorney

Freeman’s appearance.     Thus, we reject those findings by the trial court.

Second, we can find no case law that supports a disqualification for ex parte

communication by an attorney with the court.           Furthermore, Attorney

Freeman disputes that the communication was ex parte, stating that it was

sent to all counsel along with the court. Parents’ Brief at 40-41. Indeed, as

demonstrated by the fact that the child advocate raised the issue of the

email, at least one other party actually received it.    Notes of Testimony

(“N.T.”), 10/31/2014, at 6-7. The trial judge also noted that his law clerk




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intercepted the email. T.C.O. at 3. Therefore, we must conclude that that

email, even if inappropriate,3 did not influence the trial court.

        The trial court stated that co-counsel are not permitted.     N.T. at 8.

However, the trial court cites no rule for that conclusion, and we can find

none.      Further, had the court been concerned that Parents did not

understand fully the implication of having co-counsel and any conflicts that

could arise from such an arrangement, the trial court had the opportunity to

colloquy Parents because they and their interpreter were present at the

permanency review hearing. The trial court did not do so.

        Disqualification of a party’s chosen counsel is a severe act. There is no

evidence in this record that court did not have other less dramatic options.

Given the record before us, we cannot conclude that disqualifying Attorney

Freeman was a remedy commensurate with any alleged ethics violations or

necessary to ensure a fair hearing. Thus, we find that the trial court erred.

        The next question concerns the correct remedy.        Although we have

ordered a new trial in prior cases, we held that “if that ruling [to disqualify

counsel] had a harmful effect upon the outcome of the case, the only

remedy is to grant a new trial.” McCarthy v. Se. Pennsylvania Transp.

____________________________________________


3
      The email was       not made part of the certified record and therefore,
cannot be considered      by this Court. See Commonwealth v. McBride, 957
A.2d 752, 757 (Pa.         Super. 2008) (“[A]n appellate court is limited to
considering only the      materials in the certified record when resolving an
issue.”).



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Auth., 772 A.2d 987, 995 (Pa. Super. 2001).         Here, however, Attorney

Freeman’s presence or absence could not change the fact that Parents’

motion was filed outside of the time in which the trial court could modify its

order.     Because Attorney Freeman’s exclusion could have had no harmful

effect on the outcome at the permanency hearing, we will not grant a new

hearing.     However, going forward and provided that Attorney Freeman

complies with all relevant rules and procedures to enter his appearance,

Attorney Freeman may appear as co-counsel for Parents.            Therefore, we

reverse the trial court’s October 31, 2014 order denying Attorney Freeman’s

entry of appearance and affirm the order in all other respects.

      Order affirmed in part, reversed in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




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