J-A20032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.A.S., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.S.                            :
                                               :
                                               :
                                               :
                                               :   No. 1750 WDA 2017

                Appeal from the Order Entered October 27, 2017
    In the Court of Common Pleas of Jefferson County Domestic Relations at
                   No(s): Docket No. CP-33-DP-0000014-20,
                           FID: 33-FN-000005-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                          FILED SEPTEMBER 24, 2018

        J.S., paternal grandmother, (Grandmother) appeals from the order,

entered in the Court of Common Pleas of Jefferson County, terminating her

guardianship rights to A.A.S., her five-year-old granddaughter (Child). After

our review, we vacate and remand.

        Following allegations of abuse, and pursuant to an order for emergency

protective custody, the court on February 26, 2017, transferred custody of

Child to Jefferson County Children and Youth Services Agency (CYS). See

Order, 2/16/17. At that time, Grandmother was Child’s legal guardian. That

same day, CYS placed Child with a foster family.             The court ordered

psychological examinations for Grandmother, as well as for mother and

father,1 and ordered Child have no contact with her parents or Grandmother
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1   Father’s parental rights have since been terminated.
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until the psychological evaluations were complete and CYS had completed its

investigation. See Order, 2/16/17.

       CYS filed a dependency petition on February 17, 2017, and the court

held a hearing on April 27, 2017. At the conclusion of the hearing, the court

found Child dependent pursuant to 42 Pa.C.S. § 6302. See Order, 5/4/17. A

permanency hearing was held on July 24, 2017, continuing placement of Child.

See Order, 7/26/17. In her brief, Grandmother, who had recently moved,

claims she provided her new address to CYS. She also claims that neither she

nor counsel received a copy of the July 26, 2017 order continuing placement.

       The court held a permanency review hearing on October 25, 2017.

Grandmother did not appear; Child’s mother, mother’s attorney, and mother’s

husband were in attendance.           CYS caseworker Kristin Moore testified that

Child is doing well with her current foster family and has started pre-

Kindergarten at the local Catholic school. N.T. Hearing, 10/25/17, at 5-7.

       Moore also testified that Grandmother was diagnosed with factitious

disorder imposed on another,2 and that Grandmother’s psychological

evaluation stated that she “is not suitable to care for others especially those
____________________________________________


2  Factitious disorder imposed on another, also known as Münchausen
syndrome by proxy (MSP), is a psychological disorder in which caregivers
fabricate or intentionally cause symptoms in those they are caring for in order
to seek and obtain medical investigation or treatment (i.e., to assume the sick
role by proxy). Typically, the caregiver is the mother, who behaves as if
distressed about her child’s illness and denies knowing what caused it; she is
believed to be motivated by the hope that she will be seen as an exceptionally
attentive parent, and her behavior may be an attempt to arouse sympathy.
https://dictionary.apa.org/munchausen-syndrome-by-proxy           (last  visited
9/10/18).

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of whom are dependent on her care including [Child].” Id. at 10. Moore read

from the evaluation, which was admitted into evidence as CYS Exhibit 1:

       The factitious disorder imposed on another has been assigned due
       to [Grandmother’s] exaggerating and fabricating symptomology
       in [Child] with several noted instances of possible deception.
       She’s involved [Child] in the role of requiring and receiving
       unnecessary medical and psychiatric treatment and has presented
       herself as a helpful, attentive, and excessively present caregiver;
       and she had knowingly used several healthcare providers at the
       same time without informing the providers. And she’s reportedly
       coaching [Child] to behave inappropriately to say that certain
       people have abused her possibly causing confusion in [Child].

Id. at 12, 14.

       At the conclusion of the hearing, the court terminated Grandmother’s

guardianship, ordered further evaluations for mother and Child in order to

determine when supervised visitation with mother would be appropriate, and

ordered a permanency review in three months.3 Id. at 14-15.

       On appeal, Grandmother raises the following issues for our review:

          1. Whether the trial court erred by holding a permanency
             review hearing without due and proper notice being given
             to [Grandmother] as to the date and time of hearing?

          2. Whether the trial court erred by issuing a permanency
             review order terminating all guardianship rights of
             [Grandmother] and ordering that she no longer receive
             notice of future hearings without first granting appellant the
             opportunity of a full hearing on the matter?

          3. Whether the trial court erred by issuing a permanency
             review order based on a psychological evaluation of

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3 CYS had no address for father. The court noted that father has had no
involvement with Child for at least eight months. N.T. Hearing, supra at 24.

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            [Grandmother] without first granting [Grandmother] the
            opportunity of a full hearing on the contents of the report?

Appellant’s Brief, at 5-6.

      Under the Juvenile Act, attendance at and participation in
      dependency proceedings are restricted. Dependency hearings are
      closed to the general public. Only a “party” has the right to
      participate, to be heard on his or her own behalf, to introduce
      evidence, and/or to cross-examine witnesses. Although the
      Juvenile Act does not define “party,” case law from this Court has
      conferred the status of party to a dependency proceeding on three
      classes of persons: (1) the parents of the juvenile whose
      dependency status is at issue; (2) the legal custodian of the
      juvenile whose dependency status is at issue [;] or (3) the
      person whose care and control of the juvenile is in question. These
      categories logically stem from the fact that upon an adjudication
      of dependency, the court has the authority to remove a child from
      the custody of his or her parents or legal custodian. 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.

In re L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006) (emphasis added)

(citations omitted). There is no dispute that Grandmother is a “party” to this

action under the Juvenile Act; Grandmother was Child’s legal guardian prior

to the dependency disposition. See generally 42 Pa.C.S.A. § 6336.1 (Notice

and hearing).

      With respect to procedural due process, this Court has stated: “Due

process requires nothing more than adequate notice, an opportunity to be

heard, and the chance to defend oneself in an impartial tribunal having

jurisdiction over the matter.” In re J.N.F., 887 A.2d 775, 781 (Pa. Super.

2005). “Due process is flexible and calls for such procedural protections as

the situation demands.” In re Adoption of Dale A., II, 683 A.2d 297, 300

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(Pa. Super. 1996), citing Mathews v. Eldridge, 424 U.S. 319 (1976).        See

also In re R.M., 790 A.2d 300, 307 (Pa. 2011) (“In the due process notice

context, [] the United States Supreme Court has emphasized procedure over

salutary result, to assure necessary accommodation of all constitutionally

protected interests involved.”).

        Grandmother argues she was never notified of the October 25, 2017

permanency hearing in accordance with the Rules of Juvenile Court Procedure

and that the court erred in allowing the hearing to proceed without her or her

counsel in attendance.        She also argues the court erred in presenting her

psychological evaluation, without cross-examination, and in terminating her

guardianship without a full hearing. CYS contends that the record reflects that

Grandmother did receive notice. That contention, however, is not supported

in the record.

        The notice of the October 25, 2017 Permanency Review Hearing listed

both Grandmother and her attorney, Frederick M. Neiswender, Esquire,4 as

persons to be served. That notice was filed on October 10, 2017. However,

the October 10, 2017 docket entry indicates notice of the hearing was served

to “Jefferson County Children and Youth Services.” There is no indication in

the docket that notice was sent to Grandmother or her attorney.5

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4   Attorney Neiswender entered his appearance on March 10, 2017.

5Our rules of court provide that “[t]he date of entry of an order is “the day
on which the clerk makes the notation in the docket that notice of



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       Pennsylvania Rule of Juvenile Court Procedure 1601 provides: “At least

fifteen days prior to the hearing, the court or its designee shall give notice

of the permanency review hearing[.]”)(emphasis added).          Rule 1345(A)(2)

provides, in relevant part:

       Clerk of courts’ duties. [T]he clerk of courts shall docket a written
       motion, notice or document when it is received and record the
       time of filing in the docket. The clerk of courts promptly shall
       transmit a copy of these papers to such person as may be
       designated by the court.

Pa.R.J.C.P. 1345(A)(2) (emphasis added). The docket entries indicate that

the October 10, 2017 notice was sent to CYS; the court notice, filed of record,

is addressed to CYS and includes a “cc: to Grandmother and her attorney,

among others. The court designated that notice be sent to Grandmother and

her attorney, among others. See id.; see also Pa.R.J.C.P. 1167(B) (“A copy

of any order or court notice shall be served promptly on each party’s

attorney, and the party, if unrepresented. The clerk of courts shall serve the

order or court notice, unless the president judge has promulgated a local rule

designating service to be by the court or its designee.”) (emphasis added).
____________________________________________


entry of the order has been given as required by Pa.R.C.P. 236(b).”
Pa.R.A.P. 108(b) (emphasis added). Rule 236 requires that notice be given
to either the party or the party’s attorney of record, and that such be noted
in the docket. However, pursuant to Pa.R.J.C.P. 1100, Scope of Rules, “All
dependency matters are governed by Chapters Eleven through Twenty [of the
Juvenile Court Rules-Dependency Matters] (Rules 1100--2099).” Pa.R.J.C.P.
1100. Further, Rule 1100 states: “Unless specifically provided in these rules,
the Pennsylvania Rules of Civil Procedure and the Pennsylvania Rules of
Criminal Procedure do not apply to dependency proceedings
commenced pursuant to Rule 1200 and 42 Pa.C.S. § 6301 et seq.”
Pa.R.J.C.P. 1100B (emphasis added).

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Rule 1166(C) (Contents of docket entries) provides that the docket entries

“shall include, at a minimum, the following information: “the date and

manner of service of the order or court notice[.]” Pa.R.J.C.P.

1166(C)(8)(c) (emphasis added).

       As noted above, the docket entry of October 10, 2017 indicates only

that notice was sent to CYS. Neither party has indicated whether the president

judge has promulgated a local rule designating CYS as its designee to provide

service to the parties, however, even if that were the case, CYS’s attempt at

eleventh-hour notice is defective as well.          Although Attorney Neiswender

acknowledges       receipt    of    two    emails   from   CYS,   see   Pa.R.J.C.P.

1167(B)(3)(a)(v) (service may be provided by electronic mail), one of which

had the title, “Court Summary, Permanency Review, October 25, 2017[,]” CYS

concedes that these emails were sent on October 20, 2017 and October 24,

2017.6 Neither date meets the 15-day notice requirement in Rule 1601.7 Cf.

In re J.F., 27 A.3d 1017 (Pa. Super. 2011) (stating that “b]ut for the

____________________________________________


6  There is no indication in the record that counsel provided CYS with
authorization for service by fax or email, in accordance with Rule 1167. See
Pa.R.J.C.P. 1167-Comment (“A facsimile number or electronic address set
forth on the letterhead is not sufficient to authorize service by facsimile
transmission or other electronic means under paragraph (B)(3)(a)(v)”).

7In Grandmother’s brief, counsel acknowledges that had he seen these emails
he would have inquired further; however, he did not receive the emails until
October 27, 2017, two days after the hearing, as the emails “were
automatically placed in the junk folder of the firm’s email and were only
retrieved by coincidence during normal computer maintenance.” Appellant’s
Brief, at 16.


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particular circumstances of this case, we would find the lack of notice to be a

fatal defect requiring remand[;]” record reflected foster mother attended

hearing, was aware of purpose of hearing, and meaningful hearing was

conducted, despite notice received one day prior). Moreover, the fact that the

CYS solicitor stated at the hearing that Grandmother and her attorney

received notice, or the fact that the CYS caseworker stated that she spoke

with Grandmother’s counsel’s secretary, does not satisfy the notice

requirements. N.T. Hearing, supra at 4. See Fischer v. UPMC Northwest,

34 A.3d 115 (Pa. Super. 2011) (prothonotary staff member’s conversation

with appellant’s counsel’s secretary regarding entry of order denying post-trial

motion did not provide requisite notice of entry of order); see also In re J.F.,

supra at 1024, n.10 (this Court may only consider items included in the

certified record on appeal; those items that do not appear of record do not

exist for appellate purposes).

      We note that CYS filed a two-page letter in lieu of an appellee’s brief,

stating simply that Grandmother’s counsel received notice by email

correspondence and “stands by the Trial Court’s Opinion[.]” Appellee’s Letter,

4/16/18, at 1. The court’s opinion, however, is imprecise on this issue and

relies on the solicitor’s statement at the hearing that “they [Grandmother and

her attorney] did in fact receive notice[.]” Trial Court Opinion 1/18/18, at 1,

citing N.T. Hearing, 10/25/17, at 4. The court’s opinion does not mention the

two emails. The opinion also states that, “Having spoken to [counsel’s]

secretary, he was certain that the notice had been received at least by

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counsel.” Id. In fact, it was caseworker Kristen Moore, not the solicitor, who

testified that she spoke with Grandmother’s counsel’s secretary. N.T. Hearing,

supra at 4.

        The trial court states that “[t]he record reflects that [Grandmother] did

received notice [since] the notice . . . filed October 10, 2017 listed both her

and her attorney . . . as persons to be served.” Trial Court Opinion, supra at

1. Although that is correct, we are unable to conclude that a “cc:” list in a

filed notice of hearing supports a finding that the order was served to

Grandmother and/or her attorney without a separate docket entry indicating

such.

        The Pennsylvania Rules of Juvenile Court Procedure require notice of a

permanency hearing to be given at least fifteen days in advance. Pa.R.J.C.P.

1601.     We conclude, therefore, that the record does not support a finding of

“adequate notice.” In re J.N.F., supra. We vacate the trial court’s order and

remand for an expedited permanency review hearing.8

        Vacated and remanded. Jurisdiction relinquished.




____________________________________________


8 In light of our disposition we need not address Grandmother’s remaining
claims.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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