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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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


                       v.

APPEAL OF: J.H.

                                                        No. 1881 MDA 2015


              Appeal from the Order Entered September 23, 2015
             In the Court of Common Pleas of Susquehanna County
              Juvenile Division at No(s): CP-58-DP-0000014-2014

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


                       v.

APPEAL OF: J.H.

                                                        No. 1902 MDA 2015


              Appeal from the Order Entered September 29, 2015
             In the Court of Common Pleas of Susquehanna County
              Juvenile Division at No(s): CP-58-DP-0000015-2014


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED APRIL 20, 2016

        In these consolidated appeals, Appellant, J.H. (Father), appeals from

the       September         23       and       29,    2015    orders    finding


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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aggravated circumstances existed against Father in the dependency cases of

his daughters, N.H., born in February 2007, and P.H., born in March 2009.1

After careful review, we affirm the trial court’s September 29, 2015 order at

1902 MDA 2015 pertaining to P.H.               Additionally, for the reasons set forth

below, we dismiss Father’s appeal at 1881 MDA 2015 pertaining to N.H.

       The certified record reveals that the Children were adjudicated

dependent by the Susquehanna County Services for Children and Youth (the

Agency) on June 17, 2014.            On July 16, 2015, while a petition for goal

change to adoption was pending, the Agency filed a motion for a finding of

aggravated circumstances against Father in the cases of N.H. and P.H.,

alleging that Father “has failed to maintain substantial and continuing

contact with the child[ren] for a period of six months.”                 See Motion,

7/16/15. A hearing occurred on September 23, 2015, during which Senior

Judge Linda Wallach-Miller specially presided.2           The Agency presented the

testimony of its caseworker, Jolene Kelly, and Father testified on his own

behalf.




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1
  See In re R.C., 945 A.2d 182, 184 (Pa. Super. 2008) (holding an appeal
from an aggravated circumstances order “is an appeal as a right from a
collateral order” pursuant to Pa.R.A.P. 313).
2
 In the interim, the permanency goal was changed to adoption on August 3,
2015.




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       That same day, at the conclusion of the hearing, the trial court entered

an order finding aggravated circumstances against Father in N.H.’s case. On

October 23, 2015, Father filed a timely notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a)(2)(i).

       With respect to P.H.’s case, the certified record reveals that an order

was also entered by Senior Judge Wallach-Miller on September 23, 2015,

and on September 29, 2015, Senior Judge Brendan Vanston issued an

amended order finding aggravated circumstances against Father.              On

October 28, 2015, Father filed a timely notice of appeal and a Rule

1925(a)(2)(i) statement.         On December 2, 2015, this Court consolidated

Father’s appeals sua sponte. See generally Pa.R.A.P. 513.

       On appeal, Father raises the following issue for our review.

              Whether the [t]rial [j]udge erred as a matter of law
              and committed an abuse of discretion by issuing an
              order making a finding of aggravated circumstances
              (the Amended Order filed September 29, 2015)
              when he did not preside over the aggravated
              circumstances hearing, the parties did not consent to
              him issuing the order, and there was not a transcript
              of the hearing available for review at the time that
              he issued the order?

Father’s Brief at 2.3

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3
  Father does not assert any error with respect to the order finding
aggravated circumstances against him in N.H.’s case. Accordingly, Father’s
appeal at 1881 MDA 2015 is dismissed.



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     We are guided by the following standard of review.

           [T]he standard of review in dependency cases
           requires an appellate court to accept the findings of
           fact and credibility determinations of the trial court if
           they are supported by the record, but does not
           require the appellate court to accept the lower
           court’s inferences or conclusions of law. Accordingly,
           we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).

     In his appeal involving P.H.’s case, Father argues that Senior Judge

Vanston committed an abuse of discretion and an error of law by entering

the September 29, 2015 amended order, without having presided over the

hearing on the Agency’s motion for a finding of aggravated circumstances or

with the benefit of the hearing transcript.     Father’s Brief at 5.   Further,

Father asserts that the parties did not consent to Senior Judge Vanston

issuing the amended order. Id. In support of his argument, Father relies on

Hyman v. Borock, 235 A.2d 621 (Pa. Super. 1967), Ciaffoni v. Ford, 237

A.2d 250 (Pa. Super. 1968), and Wasiolek v. City of Philadelphia, 606

A.2d 642 (Pa. Cmwlth. 1992).          In those cases, this Court and the

Commonwealth Court determined that “in the absence of the parties’

consent, a court may not substitute another judge for the trial judge where




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the testimony has been heard without a jury and the trial judge has not

rendered a decision on the factual issues.”4 Wasiolek, supra at 644.

       In response to Father’s averments, the Agency explains as follows.

                    For N.H., the [trial c]ourt found for aggravated
              circumstances against Appellant. For P.H., the [trial
              c]ourt found for aggravated circumstances against
              Appellant; however, there were defects in the Order.

                    First, the supposed date of the Order was
              October 23, 2015. Next, under Section One entitled
              “Findings,” the boxes making the specific findings, as
              were found in N.H.’s Order, were not checked.

                    As a result, an Amended Order was prepared,
              correcting the date and checking the boxes as was
              done with N.H. The Order was signed by Senior
              Judge Brendan J. Vanston.

                     In 2015, Susquehanna County was without a
              full-time judge. Therefore, the County relied on the
              assignment of Senior Judges to handle the caseload
              for the year while the election process went forward
              for [the] current President Judge.

                      For one year the County faced the reality of a
              court calendar that was uncertain at best. Litigants
              could and would be notified a week before their
              hearing that there was no judge available. Senior
              Judges would be available for a day or two and then
              not be back in the county for weeks or months or not
              at all.

____________________________________________


4
  We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super.
2010) (citations omitted), appeal denied, 12 A.3d 371 (Pa. 2010).



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                    As a result, Senior Judge Brendan J. Vanston
              issued an amended P.H. Order that corrected the
              unintentional defects in the original P.H. Order.

Agency’s Brief at 2-3.

       Father acknowledges in his brief that Senior Judge Wallach-Miller

issued two separate orders finding aggravated circumstances against him,

one in N.H.’s case, and one in P.H.’s case.5 Father states, “[a]fter the orders

were issued, [Senior Judge] Vanston [ ] issued an ‘Amended Order’ finding

that there was [sic] aggravated circumstances with respect to P.H.” Father’s

Brief at 3.

       We conclude that, because Father acknowledges that Senior Judge

Wallach-Miller found aggravated circumstances against him in P.H.’s case,

the case law he relies upon, as cited above, is not controlling. The General

Assembly and our cases permit a trial court generally to enter an amended

order to correct obvious typographical errors. See 42 Pa.C.S.A. § 5505 (“a

court upon notice to the parties may modify or rescind any order within 30

days after its entry … if no appeal from such order has been taken or

allowed[]”); Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997)

(holding the trial court’s “authority under 42 Pa.C.S.A. § 5505 to modify or

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5
   The order issued by Senior Judge Wallach-Miller finding aggravated
circumstances against Father in P.H.’s case is not included in the certified
record. However, Father included a copy of the order in his brief. See
Father’s Brief at Appendix A. Notably, the order finds, from clear and
convincing evidence, aggravated circumstances against Father. Id.



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rescind an order ‘is almost entirely discretionary; this power may be

exercised sua sponte, or may be invoked by a request for reconsideration

filed by the parties, and the court’s decision to decline to exercise such

power will not be reviewed on appeal[]’”) (citation omitted). Furthermore,

Father does not assert prejudice as a result of the entry of the amended

order, nor are we aware of any. Therefore, it follows that the trial court did

not commit an abuse of discretion in this case. See R.J.T., supra.

      Based on the foregoing, we dismiss Father’s appeal at 1881 MDA

2015, and conclude that Father’s sole issue in his appeal at 1902 MDA 2015

is devoid of merit. Accordingly, the trial court’s September 29, 2015 order is

affirmed.

      Appeal at 1881 MDA 2015 dismissed.         Order at 1902 MDA 2015

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2016




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