J-S67016/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF T.E.J.-H., JR.,        :   IN THE SUPERIOR COURT OF
                     A Minor              :        PENNSYLVANIA
                                          :
APPEAL OF: J.H. and J.C.R.                :         No. 763 MDA 2015

                 Appeal from the Order entered March 31, 2015
                 In the Court of Common Pleas of Berks County
             Juvenile Court Division, at No. CP-06-DP-0000315-2014

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.:                FILED JANUARY 19, 2016

        J.H. and J.C.R. (Appellants)1 appeal from the order of the Court of

Common Pleas of Berks County, entered March 31, 2015, which denied their

petition to intervene in the matter of the dependency of T.E.H.-J. (Child),

born in August of 2014. We affirm.

        Berks County Children and Youth Services (CYS) assumed emergency

custody of Child and placed him in kinship care with Appellants upon his

discharge from the hospital on August 8, 2014. The trial court adjudicated

Child dependent and awarded temporary custody of Child to CYS on August

20, 2014.      Child’s concurrent goals were reunification and adoption.   CYS

removed Child from Appellant’s home on November 26, 2014, and placed

him in a traditional foster home due to numerous concerns about Appellants.

        Richard F. Small, Ph.D., evaluated Appellants on October 21, 2014.

Dr. Small noted that J.H. demonstrated “great warmth and interest” in Child


    Retired Senior Judge assigned to the Superior Court.
1
    J.H. is Child’s maternal aunt; J.C.R. is her partner.
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while J.C.R. demonstrated none.       See Small Report, at 6.                Dr. Small had

significant    concerns   regarding   the       Appellants’   ability   to    follow   CYS’

directives. Dr. Small opined specifically:

             [Appellants] had a poor experience with a foster child and
      remain bitter. They have unrealistic expectations as to how
      difficult raising [Child] is likely to be. [Appellants] seem to have
      a stable relationship, and raising a child might put great strains
      on that. Given the previous experience, if such strains appear,
      preserving the relationship might prove more important than the
      psychological well-being of [Child].

Id.

      Matt Shollenberger, Ph.D., evaluated J.C.R. on November 14, 19 and

25, 2014. Dr. Shollenberger opined that J.C.R. had severe emotional issues

and needed to be thoroughly assessed for suicidal ideations, depression and

personality disorders. See Schollenberger Report, at 7. He further opined

that J.C.R. had “difficulty simply getting out of a chair,” and therefore she

needed to address the physical issues that inhibit her from normal daily

functioning. Id. Dr. Shollenberger specifically noted that J.C.R. is, “plagued

with mental and physical concerns,” and noted that those concerns were so

profound that he did not believe that J.C.R. was “a suitable foster parent for

any child.” Id.

      On November 18, 2014, Appellants filed a Petition for Placement

Pending Adoption, Intervention and for Custody. The trial court denied that

petition.     Appellants filed their notice of appeal on April 3, 2015, and, in




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response to an order of the trial court, their concise statement of errors

complained of on May 7, 2015.2

       Appellants present the following questions for our review.

       A. Whether the lower court’s refusal to recognize standing of
       family members to intervene in dependency cases is contrary to
       the laws and regulations of the Commonwealth of Pennsylvania
       and the United States[?]

       B. Whether the Pennsylvania courts’ interpretation of ‘party’
       with respect to dependency matters violate[s] the constitutional
       rights of citizens to familial relationships[?]

Appellants’ Brief, at 4.

       Appellants ask us to consider a pure question of law.        “As with all

questions of law, the appellate standard of review is de novo and the

appellate scope of review is plenary.” B.K.M. v. J.A.M., 50 A.3d 168, 172

(Pa. Super. 2012) (citation omitted).

       Dependency proceedings are closed to the public in Pennsylvania and

only a party to a dependency may participate in them. This Court has stated

that

       [u]nder the Juvenile Act [42 Pa.C.S.A. § 6336(d)], 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

2
   There was no objection or claim of prejudice from Appellee as a result of
this late filing, so we have accepted it in reliance on our decision in In re
K.T.E.L., 983 A.2d 745 (Pa. Super. 2009).



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      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.

In the Intertest of L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006)

(citations omitted).

      In their first claim, Appellants argue that persons who are “family

members,” and bear no other relation to a dependent child, should be

allowed to intervene in dependency proceedings. In support of this claim,

Appellants cite a section of the Pennsylvania Code and a section of the Social

Security Act that each speak of reuniting a child with his or her family.

      The Appellants first cite     to Chapter 55, section 3130 of the

Pennsylvania Code that provides, in relevant part:

      (c) Each county is responsible for administering a program of
      children and youth social services that includes:

                                           ...

        (3) Services designed to reunite children and their families
        when children are in temporary, substitute placement.

55 Pa. Code § 3130.12(c)(3).

      Appellants then cite to sections of the Social Security Act 3 that they

claim, “in relevant part, require that a judge must find that the state has

made ‘reasonable efforts’ to prevent placement of the child or to reunite the


3
  We have attempted, without any success, to locate the parts of the Social
Security Act to which Appellants refer from the citations in their brief. We
assume, for the sake of argument, that the referenced statutes say what
Appellants claim they say.


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child with his or her family.”    Appellants’ Brief, at 8 (emphasis added by

Appellants).

      Appellants conclude their first argument by stating,

             Petitioners argue that as demonstrated by the above
      citations, the term ‘family’ is used frequently in both the Federal
      and Pennsylvania statutes relating to dependent children.
      Therefore, Petitioners seek standing to proceed in the
      dependency hearings for the purposes of having T.J.-H. continue
      to be placed in their care.

Appellants’ Brief, at 8.

      Appellants argue that they should be given party status because our

law encourages the reuniting of children with their families. Their argument,

however, fails to address the question of why we should expand the

definition of party in L.C., II, above, to permit individuals who are no more

than members of a dependent child’s family to participate in that child’s

dependency proceeding. Appellants’ first argument is without merit.

      In their second issue, Appellants claim that this Court’s definition of,

“whom [sic] is a proper party with standing to intervene in dependency

matters violates the constitutional rights of citizens to familial relationships.”

Appellants’ Brief, at 8.4 To support this claim, Appellants cite cases ranging

from Loving v. Virginia, 388 U.S. 1 (1967), which struck down race-based

barriers to marriage, to Smith v. Organization of Foster Families, 431

U.S. 816 (1977), in which the United States Supreme Court stated that the

4
  We note that Appellants fail to state whether their exclusion from Child’s
dependency proceeding violates the constitution of this Commonwealth or of
the United States.


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“liberty interest in family privacy has its source . . .   in intrinsic human

rights,” 431 U.S. 816, 845, while again including the Pennsylvania Code

section cited above for good measure.      Citing cases, however, is all that

Appellants do to support their argument; they fail to relate those cases to

the facts of this case to develop a coherent legal argument in support of

their claim that we should grant them party status simply because they are

members of Child’s family.

      They conclude by claiming they

      were never afforded an opportunity to become a member of the
      classes of individuals currently recognized and granted party
      status in dependency proceedings because CYS gained custody
      of the child through a Dependency Petition and Order prior to
      [Child] being released from the hospital. Thus, it was impossible
      for any family member desirous of caring for the child and
      becoming the legal custodian of the child to exercise the right to
      do so. Since an order was already in place declaring [Child]
      dependent and giving CYS legal custody of [Child], no family
      member (other than the parents) was able to gain standing to
      intervene in the dependency proceedings. Here, the Appellants
      are Maternal Aunt and her partner, clearly within the familial
      bloodline and the definition of ‘family’ as defined by the Courts.
      In refusing to grant standing to Appellants to Intervene and
      participate in the Dependency Matter, the lower court has
      applied the laws and regulations in such a way that it violates
      the Constitutional Rights of Appellants.

Appellants’ Brief, at 16.

      Our case law confers party status on three classes of individuals in a

dependency proceeding: “(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



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in question.” L.C., II, supra. Appellants admit that they are not members

of any of those classes. And they fail to demonstrate how the law they cite

supports their contention that persons who are no more than family

members of dependent children have a constitutional right to party status in

a dependency proceeding. Appellants’ second argument is without merit.

     Accordingly, for the reasons stated, we affirm the trial court’s order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2016




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