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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.I., A MINOR                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


APPEAL OF: B.B., MOTHER
                                                         No. 949 EDA 2015


                Appeal from the Order Entered March 27, 2015
                In the Court of Common Pleas of Wayne County
                Civil Division at No(s): CP-64-JM-0000007-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 23, 2015

        B.B. (“Mother”) appeals from the order entered in the Court of

Common Pleas of Wayne County denying her petition to vacate an order for

evaluation and/or treatment of her child.      We vacate the trial court’s order.

        Wayne County Children and Youth Services (“WCCYS”) filed its

application to have the child evaluated in light of a ChildLine report that

Mother was causing or contributing to her child’s mental injury.          WCCYS

alleged that Mother was interfering with the mental health treatment her

child was receiving and that she was refusing to comply with the child’s

treatment plan. WCCYS sought to have the child examined by a physician or

a psychologist.      The trial court entered the order requiring psychological

evaluation for the child.       In the Application/Motion for Evaluation and/or

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Treatment, WCCYS averred the case was registered as “Child Protective

Service Investigation[,] and that pursuant to the Child Protective Services

Law (“CPSL”), 23 Pa.C.S. §§ 6301 et seq.,1 “serious mental injury must be

diagnosed by a Physician or Licensed Psychologist, therefore, in order to

complete the investigation of severe mental injury, the child must have an

evaluation performed by a professional mental health provider or physician

as described in the law.”              Application/Motion for Evaluation and/or

Treatment of a Child, 3/24/15, at ¶2.2

        On March 25, 2015, Mother filed a Petition to Vacate the court’s order

granting the Application/Motion.          The court held a hearing on March 27,

2015.    At the hearing, Mother argued that the court lacked jurisdiction to

order an evaluation of the child, or to order treatment without evidence that



____________________________________________


1
   The purpose in the CPSL is to “encourage more complete reporting of
suspected child abuse” and to provide “protection for children from further
abuse.”    23 Pa.C.S. § 6302(b). See P.R. v. Department of Public
Welfare, 801 A.2d 478, 483 (Pa. 2002) (discussing the underlying purpose
of the CPSL and stating that “[t]he need to prevent child abuse and to
protect abused children from further injury is critical.”). Additionally, the
purpose of the CPSL is to “ensure that each county children and youth
agency establish a program of protective services with procedures to assess
risk of harm to a child and with the capabilities to respond adequately to
meet the needs of the family and child who may be at risk and to prioritize
the response and services to children most at risk. 23 Pa.C.S. § 6302(b).
2
  We note that the Application/Motion is not date-stamped; however the
docket indicates that the Application/Motion was filed on 3/24/15, the same
date as the court’s order granting it.



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prompt treatment was necessary. See N.T. Hearing, 3/27/15, at 3-6. The

court denied Mother’s petition to vacate. This appeal followed.3

       Rule 1145A of the Pennsylvania Rules of Juvenile Court Procedure

provides that an application to the court may be made for examination or

treatment of a child prior to the filing of a dependency petition “when

prompt treatment is necessary.” See Pa.R.J.C.P. 1145A (emphasis added).4

WCCYS, in its “Application/Motion,” averred that the child was in need of

prompt treatment.        See WCCYS Application/Motion for Evaluation and/or

Treatment. Mother objected to WCCYS’ use of Rule 1145 when there was no

showing that prompt treatment was necessary.           The trial court’s order

reads:

             AND NOW, this 23rd day of March, 2015, upon
          consideration of Wayne County Children and Youth’s
          Motion for Evaluation and/or Treatment of a child it is here
          ORDERED AND DECREED that the Application/Motion for
          Evaluation and/or Treatment is hereby GRANTED, and that
          the child be examined by a Physician or Psychologist and
____________________________________________


3
  In her brief, Mother states that after she filed her appeal, a psychologist
retained by WCCYS did examine the child and, according to Mother’s brief,
“Mother was informed that the allegations were reported as unfounded.”
See Appellant’s Brief, at 8. Although this would moot the appeal before us,
there is no indication in the certified record on appeal that the evaluation
was performed. An appellate court may consider only the facts which have
been duly certified in the record on appeal. See Pa.R.A.P. 1921-Note; see
also Commonwealth v. Young, 317 A.2d 258 (Pa. 1974).
4
  The Comment to Rule 1145 specifies that after a dependency petition has
been filed, the proper course of action for seeking examination and
treatment of a child is to file a motion pursuant to Pa.R.J.C.P. 1145B. See
Pa.R.J.C.P. 1145-Comment.



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         if, in the opinion of the same, the child requires prompt
         treatment that Wayne County Children and Youth Services
         be authorized to consent to the same, even if the
         parent/guardian has not been given notice of said
         Application/Motion, Petition for Dependency or Application
         for Shelter Care, or if after notice as aforesaid the
         parent/guardian, without good cause, refuses to consent to
         the child’s treatment.

Trial Court Order, docketed 3/24/2015.

      The record of the hearing, and the documents included in the certified

record, however, offer no support for a finding that prompt treatment is

necessary. If there is no indication that prompt treatment is necessary, the

agency cannot use this rule to seek evaluation in order to support a

determination that prompt treatment is necessary.

      Further, the trial court supports its decision to grant WCCYS’

application by referring to section 6339(b) of the Juvenile Act, which states:

         Physical and mental examinations and treatment.--
         During the pendency of any proceeding the court may
         order the child to be examined at a suitable place by a
         physician or psychologist and may also order medical or
         surgical treatment of a child who is suffering from a
         serious physical condition or illness which in the opinion of
         a licensed physician requires prompt treatment, even if the
         parent, guardian, or other custodian has not been given
         notice of a hearing, is not available, or without good cause
         informs the court of his refusal to consent to the
         treatment.

42 Pa.C.S. § 6339(b) (emphasis added).

      The Juvenile Act applies “exclusively” to:

         (1) Proceedings in which a child is alleged to be delinquent
         or dependent.


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          (2) Transfers under section 6322 (relating to transfer from
          criminal proceedings).

          (3) Proceedings arising under Subchapter E (relating to
          dispositions affecting other jurisdictions).

          (4) Proceedings under the Interstate Compact on
          Juveniles, as set forth in section 731 of the act of June 13,
          1967 (P.L. 31, No. 21), known as the Public Welfare
          Code.1

          (5) Proceedings in which a child is charged with a
          summary offense arising out of the same episode or
          transaction involving a delinquent act for which a petition
          alleging delinquency is filed under this chapter. The
          summary offense shall be included in any petition
          regarding the accompanying delinquent act. Upon finding a
          child to have committed a summary offense, the court may
          utilize any disposition available to the minor judiciary
          where a child is found to have committed a summary
          offense, including a finding of guilt on the summary
          offense.

42 Pa.C.S. § 6303 (Scope of Chapter).                     See 42 Pa.C.S. § 6321

(Commencement of Proceedings).                 As Mother points out, WCCYS has not

filed a dependency petition, nor have proceedings been commenced

pursuant to any other method listed in section 6321.5 See also In re A.L.,
____________________________________________


5
    (a) General rule. – A proceeding under this chapter may be commenced:


          (1) By transfer of a case as provided in section 6322
          (relating to transfer from criminal proceedings).

          (2) By the court accepting jurisdiction as provided in
          section 6362 (relating to disposition of resident child
          received from another state) or accepting supervision of a
          child as provided in section 6364 (relating to supervision
          under foreign order).
(Footnote Continued Next Page)


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779 A.2d 1172 (Pa. Super. 2001) (in child custody hearing during divorce

proceeding, trial court lacked jurisdiction to evaluate and rule upon any issue

of dependency where there was no evidence that dependency petition was

filed or that children were appointed counsel for delinquency proceeding).

      Thus, WCCYS has not complied with either Pa.R.J.C.P. 1145A or the

Juvenile Act, 23 Pa.C.S. §§ 6301 et seq.          WCCYS failed to present any

evidence that prompt treatment was necessary, and it failed to file a

dependency petition under the Juvenile Act.

      Finally, WCCYS avers in its petition that this case “was registered as a

Child Protective Services Investigation.” See Application/Motion, supra at ¶

There is nothing in the record to suggest to this Court that the procedures

set forth in the CPSL, in particular section 6368 (Investigation of reports) ,

have been invoked or followed.

      Accordingly, the trial court’s order is vacated.     Case remanded for

disposition in accordance with this opinion. Jurisdiction relinquished.


                       _______________________
(Footnote Continued)

          (2.1) By taking a child into custody in accordance with the
          provisions of section 6324 (relating to taking into custody).

          (3) In other cases by the filing of a petition as provided in
          this chapter. The petition and all other documents in the
          proceeding shall be entitled “In the interest of
          ...................., a minor,” and shall be captioned and
          docketed as provided by general rule.

42 Pa.C.S. § 6321.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015




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