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                                   2019 PA Super 48

    IN THE INTEREST OF: S.U., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: R.U., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 888 MDA 2017

                  Appeal from the Orders Entered May 4, 2017
     In the Court of Common Pleas of Lancaster County Juvenile Division at
                       No(s): CP-36-DP-0000083-2017


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
        LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
        McLAUGHLIN, J.

CONCURRING STATEMENT BY DUBOW, J.:                   FILED FEBRUARY 21, 2019

       I agree with the Majority Opinion that Father failed to appear at a

hearing and thus, lost his right to representation by counsel.           I write

separately, however, because we are raising this issue sua sponte.1 Although

the Supreme Court has not authorized us to raise sua sponte the issue of

whether a parent is represented by counsel during dependency hearings, the

right to counsel is statutorily mandated and the Superior Court should ensure

that the trial court follows that mandate. Thus, the Superior Court should

have the authority to raise sua sponte the failure of the trial court to do so.


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1 When an appellate court raises an issue that the parties did not raise before
the trial court or the appellate court, the appellate court is raising the issue
“nostra sponte,” as opposed to “sua sponte” because the appellate court sits
in multi-judge panels. Black’s Law Dictionary (10th ed. 2014). For the sake
of convenience, however, we will use the term “sua sponte” because the cases
that address this issue for appellate courts consistently use this term.
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      It is axiomatic that an appellate court may not raise an issue sua sponte,

except when the issue addresses the subject-matter jurisdiction of the court.

In re Angeles Roca First Judicial Dist. Philadelphia Cty., 173 A.3d 1176,

1197 (Pa. 2017) (“It is foundational that jurisdictional questions may be raised

sua sponte.”); Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super.

2017) (“A court may consider the issue of jurisdiction sua sponte.”).

      In fact, our Supreme Court has specifically prohibited the Superior and

Commonwealth Courts from deciding certain issues sua sponte. For instance,

the Superior Court cannot address constitutional issues sua sponte.        See

Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975) (criticizing the Superior

Court’s sua sponte consideration of a constitutional issue, which “exceeded its

proper appellate function of deciding controversies presented to it.”).

      Similarly, the intermediate appellate courts may not consider sua sponte

standing and recusal issues. See In re Nomination Petition of deYoung,

903 A.2d 1164, 1168 (Pa. 2006) (noting that our Supreme Court “has

consistently held that a court is prohibited from raising the issue of standing

sua sponte.”); Commonwealth v. Whitmore, 912 A.2d 827, 833 (Pa. 2006)

(concluding that the Superior Court erred when it sua sponte removed the

trial judge where recusal had never been raised by the parties). See also

Fallaro v. Yeager, 528 A.2d 222, 228 (Pa. Super. 1987) (finding that a court

may not make a sua sponte determination of dependency in a custody action

where no dependency petition has been filed or in an action under the Child

Protective Services Law).

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      The Supreme Court disfavors the intermediate appellate court’s

consideration of issues sua sponte because it is more important to respect

orderly judicial decision-making, afford counsel the opportunity to brief and

argue issues, permit the court to benefit from counsel’s advocacy, and uphold

issue preservation rules. Wiegand, supra.

      There are, however, a few discrete, limited non-jurisdictional issues that

the Supreme Court has authorized the appellate courts to raise sua sponte,

such as waiver as a result of various briefing defects.              See, e.g.,

Commonwealth v. Passaro, 476 A.2d 346, 348 (Pa. 1984) (describing

Pennsylvania’s practice of dismissing pending appeals of escaped prisoners,

which the court may do sua sponte); Berg v. Nationwide Mut. Ins. Co.,

Inc., 6 A.3d 1002, 1015 (Pa. 2010) (“failure to include issues in a Rule

1925(b) statement resulted in ‘automatic’ waiver, which could be found sua

sponte by courts.”).

      Additionally, the Superior Court has held that it has the authority to

raise sua sponte the failure of the trial court to appoint any counsel for a child

in a termination hearing because 23 Pa.C.S. § 2313(a) mandates that the trial

court appoint counsel for a child in a termination hearing. In re K.J.H., 180

A.3d 411 (Pa. Super. 2018).

      Similarly, the Superior Court has found that it has the authority to

consider sua sponte the failure of the trial court to conduct a Grazier hearing

to ensure that a defendant has knowingly and voluntarily waived his right to

counsel for his first PCRA petition.    Commonwealth v. Stossel, 17 A.3d

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1286, 1290 (Pa. Super. 2011). This Court based this conclusion on the fact

that the PCRA statute entitles an indigent defendant to counsel for his first

PCRA petition, and our Supreme Court has acknowledged that “PCRA relief

cannot stand unless the petitioner was afforded the assistance of counsel.”

Id. (quoting from Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa.

1998)).2

       Applying these principles to a dependency hearing, it is important to

note that the Juvenile Act authorizes the appointment of counsel in

dependency cases when a parent cannot afford counsel and appears at a

hearing. In particular, Section 6337 of the Juvenile Act provides that “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.” 42 Pa.C.S. § 6337 (emphasis added). Section 6337, however, has an

exception for parties other than children, when it provides “if a party . . .

appears at a hearing without counsel the court shall ascertain whether he

knows of his right thereto and to be provided with counsel by the court, if

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2 Although a three judge panel of Superior Court has held that Superior Court
can raise sua sponte the issue of whether a Guardian ad Litem in a termination
hearing has a conflict, it has done so without the authorization of the Supreme
Court. In two recent Supreme Court decisions in this area, the parties had
raised the issue of a conflict before the trial court or Superior Court. Thus, the
Supreme Court, although acknowledging the importance that a GAL not have
a conflict, did not authorize, let alone mention, that Superior Court may raise
the conflict issue sua sponte. In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017); In re T.S., 192 A.3d 1080 (Pa. 2018)

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applicable.”   Id.   Since the legislature has authorized the appointment of

counsel, it has determined the importance of counsel at dependency hearings

when parents appear. We should, therefore, ensure that the trial court follows

the legislative mandate and address the issue, even if the parties do not raise

it.

      I note, however, that our right to ensure that the trial court appoints

counsel goes no further than the appointment itself. We should not have the

authority to address sua sponte the adequacy of that representation.

      President Judge Emeritus Bender, Judge Panella, Judge Lazarus and

Judge McLaughlin join the concurring statement.




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