J-S56001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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


                    v.

APPEAL OF: M.J., LEGAL GUARDIAN

                                                     No. 3002 EDA 2016


             Appeal from the Order Entered September 1, 2016
            In the Court of Common Pleas of Philadelphia County
            Juvenile Division at No(s): CP-51-DP-0001823-2016
                          FID: 51-FN-001814-2016


BEFORE: BOWES, J., STABILE, J., AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 18, 2017

      M.J. (“Grandmother”) appeals the juvenile court order adjudicating her

grandson and ward, S.S., dependent pursuant to two separate facets of the

statutory definition of “Dependent child” that relates to children who (1) lack

proper parental care and control and/or (2) are habitually truant from school

without justification. We reverse.

      The certified record lacks any evidentiary foundation. For the ease of

our disposition, we reiterate the juvenile court’s factual summary as derived

from the dependency petition filed by the Philadelphia Department of Human

Services (“DHS”):

      On May 12, 2016, a truancy hearing was held for S.S. before
      [Juvenile] Master [Ruth] Pearson pursuant to a truancy petition
      filed by the School District of Philadelphia. Master Pearson

* Retired Senior Judge specially assigned to the Superior Court.
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      ordered that S.S. attend school day with no lateness, cutting or
      suspensions. Master Ruth Pearson further ordered that absences
      may only be excused with a physician's note. . . . The Court
      ordered the Department of Human Services (DHS) [to] file a
      dependen[cy] petition based on excessive truancy for S.S. The
      court noted S.S. resided with his maternal grandmother and
      maternal aunt.

      Despite being mandatory school age, the Petition reported and
      alleged S.S. was excessively and consistently truant. S.S. had 41
      unexcused absences for the 2015-2016 school year and 38
      unexcused absences for the 2014-2015 school year. S.S. had 11
      unexcused absences from March 7, 2016 to May 12, 2016.

Trial Court Opinion, 5/12/17, at 1.

      DHS complied with Master Pearson’s directive and filed a petition for

dependency.    Significantly, the agency did not seek to remove S.S. from

Grandmother’s home.      Instead, it recommended that he be permitted to

remain with his parents, guardian, or custodian, i.e., Grandmother, with the

agency’s continuing supervision.

      At the outset of the ensuing juvenile court hearing, the trial court

summoned counsel to sidebar for a discussion that was not transcribed.

N.T., 9/1/17, at 1.    When the dependency proceedings reconvened, the

juvenile court immediately discussed the allegations set forth in DHS’s

petition as if it had adopted those facts as its own, summarized that

information, and announced its intent to adjudicate S.S. dependent and

remove him from Grandmother’s care.          In pertinent part, the court

announced:




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             We’re back on the record.       So I’m going to re-work
      this . . . Let me say this, this case is before me because of a
      truancy matter that was heard by [M]aster Ruth Pearson on May
      12. The reality of it is, this young man is excessively truant.

            Now, in the petition it says that [S.S.] had 41 un-excused
      absences for 2015[-]2016. I hear it’s closer to 79. Be that as it
      may, not on my watch. He’s to be placed today out of the
      home. That’s very black and white for me. . . . So let me say
      this, because I am adjudicating him dependent with a full
      commitment to the department today, it’s not that I think that
      [S.S.] is necessarily doing it, it might be circumstances within
      the home, but whatever it is, he is mandated to go to school,
      and he hasn’t been. So, I’m going to put him in a situation
      where he’s going to go to school.

Id. at 2.

      Thereafter, the following exchange occurred between Grandmother’s

counsel and the trial court:

           [Counsel]: I know we had a sidebar, is there any evidence
      you want me to put on the record, your Honor[?]

            The Court: [U]nless you have any documentation – I will
      accept any documentation saying that he wasn’t excessively
      truant, so, if you can explain away where 79 – 71 absences for
      the school year, I’ll absolutely hear that.       So, I need
      documentation because I just don’t want testimony. I want
      documentation.

            [Counsel]: I have no documentation.

            The Court: Okay, so as far as I’m concerned there’s no
      explanation for it.

Id. There was no further discussion regarding the sidebar or the dearth of

evidence introduced in favor of DHS’s dependency petition.      The juvenile

court placed S.S. in foster care, and directed DHS to explore admitting him



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in George Junior Republic or ChildFirst Services, two residential juvenile

facilities.   The goal was reunification.      DHS objected to S.S.’s placement.1

Id. at 3.

        Grandmother filed a timely appeal from the order adjudicating S.S.

dependent, and she complied with Pa.R.A.P. 1925(a)(2)(i) by concurrently

filing a concise statement of errors complained of on appeal. She presents

two questions for our review:

        A.    Whether the trial court abused its discretion when it
        adjudicated the child dependent without clear and convincing
        evidence because no evidence was taken on the record to
        support such a finding?

        B.    Whether the trial court abused its discretion when it
        alluded to the fact that it was informed of a certain amount of
        absences for the child, again no testimony was taken on the
        record. The court must have had predisposed information that
        was not provided to counsel nor testified to in open court?

Grandmother’s brief at 5.2 We address the issues collectively.

        The following principles are pertinent.      In In re A.B., 63 A.3d 345,

349 (Pa.Super. 2013) (quoting In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)),

we explained,


____________________________________________


1 As of the March 2, 2017, permanency review hearing, the most recent
juvenile proceeding in the certified record, S.S. remained in kinship foster
care with his paternal great aunt, and he exercised liberal unsupervised
visitations with his family.

2   DHS declined to file a brief.



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         Our Supreme Court set forth our standard of review for
      dependency cases as follows.

         [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 A.B., supra, at 349.

      Dependency hearings are governed by 23 Pa.C.S. § 6341(a) and (c).

Pursuant to those provisions, the trial court is required to consider the

evidence adduced at the dependency hearing and determine by clear and

convincing evidence whether the child meets the definition of a dependent

child under § 6302.    See § 6341(a) (“After hearing the evidence on the

petition the court shall make and file its findings as to whether the child is a

dependent child.”); see also § 6341(c) (requiring court to find child

dependent from clear and convincing evidence).         Thus, based upon the

averments alleged in the dependency petition, DHS was required to prove by

clear and convincing evidence that S.S. was “subject to compulsory school

attendance [and] is habitually and without justification truant from school[.]”

42 Pa.C.S. § 6302.     We have defined clear and convincing evidence as

“testimony that is ‘so clear, direct, weighty, and convincing as to enable the

trier of facts to come to a clear conviction, without hesitancy, of the truth of




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the precise facts in issue.’” In re A.B., supra at 349 (quoting In re C.R.S.,

696 A.2d 840, 843 (Pa.Super. 1997)).

      Instantly, the juvenile court characterized the off-the-record discussion

with counsel at sidebar as a stipulation to the facts in DHS’s petition, and it

determined that the agency’s allegations provided clear and convincing

evidence that S.S. was excessively truant. Thus, it determined that it was

contrary to the child’s safety and welfare to remain in Grandmother’s care.

      Grandmother assails the juvenile court’s characterization of the

sidebar discussion, and she contests the court’s statement that the parties

stipulated to the facts asserted in the petition.      Her position accurately

highlights the fact that the putative stipulation is not reflected in the record,

and stresses that DHS neglected to introduce any evidence to sustain its

burden of proof that S.S. is a dependent child. For the reasons explained,

infra, we agree, and we find that the juvenile court erred in adjudicating S.S.

dependent without any record evidence to support the conclusion that DHS

sustained its burden of proof.

      The juvenile court and Grandmother have divergent perspectives of

the sidebar discussion, and while DHS objected to placement, it declined to

file a brief taking any position in this appeal. Although we would look to the

certified record to resolve the apparent dichotomy, the record is silent as to

any agreement in the case at bar. That silence is deafening.




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      Stated plainly, the certified record will not sustain the trial court’s

assertion that the parties stipulated to either the accuracy of the facts as

alleged in the petition or even agreed that DHS would present a witness to

testify consistent with those allegations.   The conference at sidebar is not

part of the certified record, and we cannot justifiably rely upon the juvenile

court’s recollection of the discussion in rendering our decision without the

purported stipulation or other clear and convincing evidence presented at a

hearing. See New London Oil Co., Inc., v. Ziegler, 485 A.2d 1131, 1133

(Pa.Super. 1984) (refusing to consider alleged statements defining scope of

stipulation where those statements occurred off-the-record).     In sum, the

allegations in DHS’s petition cannot be deemed facts unless Grandmother

stipulated to their veracity or DHS presented credible testimony during a

hearing. Neither occurred herein.

      Moreover, the juvenile court not only failed to outline the purported

stipulation on the record, it neglected to mention that the parties had

entered any agreement as to the facts. We note that Grandmother carried

no burden of proof during the proceeding and she was not obligated to

present any evidence or complain about the state of the record. It was up to

DHS to satisfy the burden of proof and it was the juvenile court’s obligation

to ensure that the evidence actually introduced on the record supported its

adjudication of delinquency.




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       Indeed, not only is the record lacking as to any specific agreement

about the veracity of the allegations in the petition, the trial court’s reaction

to Grandmother’s inquiry concerning whether to present her own evidence

militates against finding that the agreement was implicit.       It is axiomatic

that, if Grandmother had agreed to the facts asserted in the petition, she

would not have sought to introduce contrary evidence. To be sure, the mere

fact that the juvenile court invited Grandmother to submit “documentation

saying that he wasn’t excessively truant,” belies the trial court’s subsequent

assertion that the case was submitted on stipulated facts.

       Likewise, to the extent that the parties could have simply agreed to

the content of a DHS witness’s testimony if called to the stand, the certified

record does not identify the putative witness or outline his or her testimony.

Again, the only “evidence” in the record currently before this Court is the

juvenile court’s inexplicable but obvious wholesale acceptance of the truancy

allegations that DHS had leveled in its petition.3

       Our review of the certified record reveals no agreement whereby

Grandmother stipulated to the facts in DHS’s dependency petition. If there
____________________________________________


3 We observe that, while the trial court found that S.S. missed “closer to 79”
days of school during the 2015-2016 academic year, the petition which
ostensibly formed the bases of the purported stipulation averred that S.S.
missed no more than fifty-two days of school. N.T., 9/1/17, at 2. Hence,
assuming that the parties agreed to submit the case on stipulated facts, and
there is no evidence to suggest that they did, the record still would not
sustain that aspect of the juvenile court’s determination.



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was an agreement among the parties, it was not on the record, and does not

exist for the purpose of our review.

      Since no evidence exists in the certified record to support the trial

court’s adjudication of dependency, we reverse the adjudication and

disposition entered on September 1, 2016. DHS is to maintain supervision

until discharged by the juvenile court. If DHS believes that S.S. meets the

statutory definition of a dependent child, it can petition the juvenile court to

take appropriate measures to ensure the protection of his physical, mental,

and moral welfare.

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/17




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