J-S07030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: M.D. AND               :   IN THE SUPERIOR COURT OF
    Z.F., MINORS                               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: B.F. AND A.D.                   :
                                               :
                                               :
                                               :
                                               :   No. 1523 MDA 2018

          Appeal from the Dispositional Order Entered August 27, 2018
     In the Court of Common Pleas of Schuylkill County Juvenile Division at
                       No(s): CP-54-DP-0000200-2018,
                           CP-54-DP-0000323-2015


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED MAY 30, 2019

       B.F. (“Father”) and A.D. (“Mother”) (collectively “parents”) appeal from

the August 27, 2018 order adjudicating M.D. (d.o.b. 1/27/08) and Z.F. (d.o.b.

2/16/17) (collectively “children”) to be dependent.1 We conclude that the

record does not reflect whether parents properly waived their right to counsel.

Therefore, we remand for purposes of a determination of the same by the trial

court and retain jurisdiction.

       The underlying facts, as noted by the trial court, are as follows:

             [Mother] is the natural mother of both M.D. and Z.F.
       [Father] is the biological father of Z.F. and currently resides with
       [Mother], however has no biological relationship with the minor
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 We note that the trial court, in a subsequent order issued September 24,
2018, once again adjudicated the children to be dependent and removed the
children from parents’ physical custody.
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      M.D. M.D.’s father is deceased, and custody of M.D., pursuant to
      a Carbon County custody order, is vested with [Mother] and her
      mother, C.K. which orders shared legal and physical custody. The
      physical custody is to be shared by [Mother] and C.K. on alternate
      weeks. Essentially [Father] participated in the dependency
      hearing on behalf of both he and [Mother], and the fillings
      reviewed by this Court appear to reflect that most of the materials
      submitted were by [Father]. Although there is no biological
      relationship which would afford [Father] standing as to issues
      regarding the minor M.D., no objection was made by the agency,
      likely because of his living in the same household as [Mother] and
      having been in that household for several years.

             At the August 27, 2018 dependency hearing[,] the agency
      sought a finding of dependency as to both children. The agency
      had been involved with M.D. since October of 2015, addressing
      apparent drug and alcohol use, medical issues, discipline issues,
      inappropriate caretaking, and inadequate parenting. M.D. and his
      sister, who is now deceased, were temporarily placed in the care
      of their maternal grandmother, identified here as C.K., on August
      29, 2016[,] following an adjudication hearing in this Court.
      Following several placement review hearings in which affidavits
      were admitted into the record outlining the testimony of the
      agency, and testimony having been taken, the children were
      returned to [Mother] in January of 2017 with court ordered
      services. As reflected in prior Dependency Orders the family
      moved to Carbon County at some point after January of 2017, and
      the court ordered services in Schuylkill County were vacated on
      July 17, 2017 with a referral being made to Carbon County
      Children and Youth. Prior to the current dependency petition
      related to both children, there was no dependency involvement by
      the agency with Z.F. The agency had been providing services on
      a voluntary basis to [parents].

Tr. Ct. Op., 11/13/18, at 2-3.

      The dependency petitions here at issue were filed by the Schuylkill

County Children and Youth Services (“Agency”) on July 16, 2018. The Agency

contends that they provided proper notice to parents, including notification

regarding their right to counsel. By order of court, the initial adjudicatory



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hearing, scheduled for August 6, 2018, was continued until August 13, 2018,

specifically for purposes of allowing Father to obtain counsel. See Tr. Ct.

Order, 8/8/18. However, the August 13 hearing was also continued due to

apparent flooding. Ultimately, the trial court conducted an adjudicatory

hearing on August 27, 2018, but both Father and Mother were pro se with no

explanation on the record as to when or how either parent waived the right to

counsel. Indeed, the trial court notes that Mother appeared only briefly at the

hearing, appeared disoriented, and left the courtroom shortly after the hearing

began and never returned.

      Our standard of review regarding 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.”

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

      The Juvenile Act provides parents with a right to counsel in dependency

cases:

      [A] party is entitled to representation by legal counsel at all stages
      of any proceedings under this chapter and if he is without financial
      resources or otherwise unable to employ counsel, to have the
      court provide counsel for him. If a party other than a child appears
      without counsel the court shall ascertain whether he knows of his
      right thereto and to be provided with counsel by the court if
      applicable.

42 Pa.C.S.A. § 6337; see In the interest of: S.U., --- A.3d ---, 2019 WL

763579 at *10 (Pa.Super. 2019) (en banc) (Bowes, J., concurring) (stating



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that because the right to counsel is statutorily mandated in dependency

proceedings, this Court may raise the issue sua sponte).

       This Court has held that “parents of a child sought to be adjudicated

dependent are parties entitled to court-appointed counsel.” In re Michael Y.,

530 A.2d 115, 120 (Pa.Super. 1987). In addition, Pennsylvania Rule of

Juvenile Court Procedure 1152(B) states, “a party may waive the right to

counsel if: (1) the waiver is knowingly, intelligently, and voluntarily made;

and (2) the court conducts a colloquy with the party on the record.” Pa.R.J.C.P.

1152(B); see In re Michael Y., 530 A.2d at 120-21 (remanding for counsel

waiver colloquy in dependency proceeding where trial court noted, on the

record, that party had right to counsel but did not discuss the ramifications of

waiving counsel and party did not respond that she did or did not want

counsel).

       In the case sub judice, it is not discernable from the record whether

Mother or Father were properly apprised of that right to counsel, or whether

they properly waived that right. Although the trial court did grant Father a

continuance to procure counsel, neither Mother nor Father had counsel at the

pivotal August 27, 2018 hearing, and there is no mention on the record

regarding whether they waived their right to counsel.2 Therefore, we remand

to the trial court with instructions to clarify whether proper procedures were

followed regarding the parent’s right to counsel.
____________________________________________


2We note that we raise the issue of the parties’ statutorily mandated right to
counsel sua sponte. See In re S.U., 2019 WL 763579 at *10.

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     Order remanded. Jurisdiction retained.

Judge Olson joins the Memorandum.

Judge Pellegrini files a Dissenting Memorandum.




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