J-A28041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: Z.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: L.S.-G.,                        :
                                               :
                                               :
                                               :
                                               :   No. 1815 EDA 2019

                  Appeal from the Order Entered June 13, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-DP-0000084-2018


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 24, 2019

        L.S.-G., the former guardian of Z.M., a minor child, appeals from the

June 13, 2019, order entered in the Court of Common Pleas of Philadelphia

County, Juvenile Division, which denied her motion to vacate a protective

stay-away order entered in a dependency action as to the Child.              After a

careful review, we affirm.

        In its opinion, the juvenile court fully and correctly set forth the relevant

facts and procedural history underlying this appeal.           See Juvenile Court

Opinion, filed 7/16/19, at 2-14. Accordingly, it is unnecessary for us to restate

the facts and procedural history in detail; but rather, we provide a relevant

summary.


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*   Former Justice specially assigned to the Superior Court.
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      On December 5, 2017, the Department of Human Services (“DHS”)

received a general protective services report (“report”) alleging that the

Child’s biological mother (“Mother”) and L.S.-G. shared physical and legal

custody of Z.M. (“the Child”); the Child was in the care of L.S.-G. at the time

of the report; Mother had not seen the Child since November 22, 2017; and

L.S.-G. would not return the Child to Mother or permit the Child to attend

school. Id. at 2. This report was validated.

      Thereafter, on December 6, 2017, DHS received a report that Mother

and her paramour, K.J., smoked marijuana in front of the Child, the Child was

afraid to return to Mother’s home, the Child was residing with L.S.-G., and

L.S.-G. would not permit the Child to attend school as she feared Mother would

remove the Child from school. Id. at 2-3.      This report was validated.

      On January 4, 2018, DHS spoke with L.S.-G., who reported she was in

the process of enrolling the Child in a home-schooling program, and the Child

was afraid to return to Mother’s home. Id. at 5.

      On January 11, 2018, DHS filed a dependency petition seeking to

adjudicate the Child as being a dependent child under the provisions of

Pennsylvania’s Juvenile Act, 42 Pa.C.S. §§ 6301-6365. Id. at 6. Following a

hearing, on February 6, 2018, the Child was adjudicated dependent with legal

and physical custody transferred to guardian, L.S.-G., with Mother having

unsupervised visitation. Id.




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       On February 21, 2018, the juvenile court held a permanency review

hearing, following which the court ordered the Child to remain under the

protective supervision of DHS with legal and physical custody to remain with

L.S.-G. Id. Mother was referred for drug screening and assessments. Id.

       On May 8, 2018, the juvenile court held a permanency review hearing,

at the conclusion of which the court ordered the Child to remain with L.S.-G.

with Mother having visitation. Id. at 7.

       On August 7, 2018, the juvenile court held a permanency review

hearing, at the conclusion of which the court transferred full legal and physical

custody of the Child to Mother.            The juvenile court suspended L.S.-G.’s

guardianship, ordered the Child be returned to Mother’s care, and suspended

visitation between the Child and L.S.-G. until the next court date. Id.

       On November 19, 2018, L.S.-G. filed a motion for rule to show cause as

to why L.S.-G. should not be given visitation. The juvenile court denied the

motion and vacated L.S.-G.’s guardianship.1 Id.




____________________________________________


1 On January 6, 2019, L.S.G. filed an appeal to this Court from the order
denying her motion for rule to show cause as to visitation between her and
the Child. However, while the appeal was pending in this Court, as discussed
infra, the juvenile court determined the Child was no longer dependent and
vacated court supervision. Thus, by per curiam order entered on April 30,
2019, this Court dismissed L.S.G.’s appeal on the basis it was moot. See In
re J.A., 107 A.3d 799 (Pa.Super. 2015) (holding an actual case or controversy
must exist at all stages of the judicial process or a case will be dismissed as
moot).

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         On February 12, 2019, the juvenile court held a combined permanency

review and motions hearing. L.S.-G. and her attorney were initially present

for the hearing, and in their presence, the attorney for DHS requested the

juvenile court enter a protective order directing L.S.-G. to stay away from the

Child. N.T., 2/12/19, at 6. L.S.-G.’s attorney, in turn, indicated L.S.-G. had

filed a motion requesting the juvenile court find Mother in contempt of a prior

custody order.

      The juvenile court permitted L.S.-G. to testify, and at the conclusion of

her testimony, the juvenile court denied L.S.-G.’s petition for contempt. Id.

at 12. The juvenile court then indicated it would proceed with the permanency

review hearing, and the Child Advocate requested L.S.-G. and her attorney

leave the courtroom since L.S.-G.’s guardianship had been previously vacated

by the juvenile court. Id. at 12-13. Indicating L.S.-G. “has no standing[,]”

the juvenile court excused L.S.-G. and her attorney. Id. at 13. L.S.-G. did

not object and left the courtroom.      Id.   The juvenile court then heard

testimony from various witnesses as to whether the Child should remain

dependent, as well as regarding DHS’s motion for a protective stay-away

order.

      At the conclusion of the hearing, the juvenile court concluded the

circumstances which necessitated the dependency adjudication had been

alleviated. Id. at 23. Accordingly, the juvenile court determined the Child

was no longer dependent, vacated court supervision, and directed any custody


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actions to be handled by the domestic relations court.              Id. at 23-24.

Moreover, the juvenile court entered a protective stay-away order.               Id.

Specifically, the juvenile court directed L.S.-G. to refrain from any contact

directly or indirectly with Child, as well as refrain from any and all intimidation

personally or by family and friends. Id. The juvenile court concluded the

protective stay-away order was in the best interest of the Child and necessary

to ensure the safety of the Child. Juvenile Court Opinion, filed 7/16/19, at 15.

      On June 5, 2019, L.S.-G. filed a motion to vacate the juvenile court’s

February 12, 2019, protective stay-away order, which was entered in the

underlying dependency action. L.S.-G.’s motion in its entirety provided the

following:

   1) On February 12, 2019, an order titled “Dependency Court
      Protective Order” was issued by [the juvenile court], prohibiting
      contact between [L.S.-G.] and [Z.W.], the minor child[.]
   2) [L.S.-G.] and her attorney…were present in the courtroom on
      02/12/2019; however, both were vacated and dismissed from the
      proceedings, and not present for any testimony relevant to the
      need for protection of [the Child]. The ex-parte “Dependency
      Court Protective Order” was not served [on] [L.S.-G.].
   3) Ex parte communications between judges and parties are widely
      forbidden as a matter of procedure, due process, and ethics, as
      they deprive a litigant of the right to a fair trial before an impartial
      tribunal.
      [L.S.-G.] respectfully requests that the above-mentioned order be
      vacated pursuant to and in accordance with the above-mentioned
      rule of law.

L.S.-G.’s Motion to Vacate Dependency Court Protective Order, filed 6/5/19

(citations omitted).



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      By order entered on June 13, 2019, the juvenile court denied L.S.-G.’s

motion, and on June 20, 2019, L.S.-G. filed the instant notice of appeal. All

Pa.R.A.P. 1925 requirements have been met.

      On appeal, L.S.-G. contends the juvenile court violated her due process

rights by excusing her from the dependency hearing prior to the taking of

testimony related to DHS’s request for a protective stay-away order. Initially,

we note the record reflects that L.S.-G. and her attorney were present when

DHS made a motion for a protective stay-away order, and, thereafter, when

the juvenile court granted the Child Advocate’s request that L.S.-G. and her

attorney leave the courtroom due to L.S.-G.’s lack of standing, L.S.-G. did not

object. Accordingly, L.S.-G. has waived her allegation that the juvenile court

violated her due process rights by excusing her from the dependency hearing.

See Tecce v. Hally, 106 A.3d 728, 732 (Pa.Super. 2014) (“Parties may waive

rights, even due process rights and other rights of constitutional magnitude.”)

(citation omitted)).

      Next, L.S.-G. contends the juvenile court erred in holding she did not

have standing as a party in the dependency proceeding, and accordingly, the

juvenile court’s protective stay-away order was the result of improper ex parte

communications, which occurred at the permanency review hearing after she

and her attorney left the courtroom.     Consequently, L.S.-G. contends the

juvenile court erred in failing to grant her motion to vacate the protective

stay-away order.


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      Initially, we note that, as indicated supra, L.S.-G. did not object at the

hearing when the juvenile court indicated she did not have standing.

Accordingly, her challenge to the juvenile court’s holding that she did not have

standing is waived. See Pa.R.A.P. 302(a) (providing for waiver of issues not

first raised in lower court); In re S.H.J., 78 A.3d 1158, 1161–63 (Pa.Super.

2013) (finding that the children’s maternal aunt waived her argument that she

should have been granted standing as a prospective adoptive parent). In any

event, we conclude the issue is meritless.

      An issue regarding standing to participate in dependency proceedings is

a question of law warranting plenary review, and our standard of review is de

novo. In re J.S., 980 A.2d 117, 120 (Pa.Super. 2009).

             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) (citations omitted). The

Juvenile Act provides that all parties to a dependency proceeding are entitled


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to counsel and have the right to present evidence and cross-examine

witnesses. 42 Pa.C.S.A. §§ 6337, 6338.

         Here, L.S.-G. is not the parent of the Child. Further, inasmuch as the

juvenile court granted full physical and legal custody of the Child to Mother on

August 7, 2018, L.S.-G. was not the legal custodian of the Child. Moreover,

she is not the person whose care and control of the Child were in question

during the dependency proceedings. Therefore, L.S.-G. was not entitled to

legal status as a party in the dependency proceedings. See In re A.J., 29

A.3d 1, 3 (Pa.Super. 2011).2 Accordingly, the juvenile court did not err in

denying L.S.-G.’s motion to vacate the protective stay-away order as to the

Child.

         For all of the foregoing reasons, we affirm.

         Affirmed.


____________________________________________


2 We note Section 6336.1 of the Juvenile Act entitled “Notice and Hearing”
provides the following:
      The court shall direct the county agency or juvenile probation
      department to provide the child’s foster parent, preadoptive
      parent or relative providing care for the child with timely notice of
      the hearing. The court shall provide the child’s foster parent,
      preadoptive parent or relative providing care for the child the
      opportunity to be heard at any hearing under this chapter. Unless
      a foster parent, preadoptive parent or relative providing care for
      a child has been awarded legal custody pursuant to section 6357
      (relating to rights and duties of legal custodians), nothing in this
      section shall give the foster parent, preadoptive parent or relative
      providing care for the child legal standing in the matter being
      heard by the court.
42 Pa.C.S.A. § 6336.1. Here, L.S.-G. does not argue that she met the
requirements of Section 6336.1.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/19




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