J-S12034-17

                             2017 PA Super 83

IN THE INTEREST OF: K.S., a Minor        :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
APPEAL OF: A.L.W.                        :           No. 1491 MDA 2016

               Appeal from the Order dated August 12, 2016
         in the Court of Common Pleas of Northumberland County,
             Juvenile Division, No(s): CP-49-DP-0000056-2016

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                           FILED MARCH 29, 2017

     A.L.W. (“Mother”) appeals from the Order of Adjudication and

Disposition – Child Dependent (“Dependency Order”) relating to her minor

son, K.S. (“Child”), born in April 2001, pursuant to 42 Pa.C.S.A. § 6302. We

vacate the Dependency Order, and remand for a new adjudicatory hearing.

     Northumberland County Children and Youth Services (“the Agency”)

first became involved with the family in 2009. Since that time, the Agency

received eight additional referrals, raising concerns about housing, lack of

supervision of Child, and parents’ drug and alcohol abuse.

     In October 2015, Child began living with his step-grandfather

(“Custodian”), who was granted custody of Child in December 2015. In July

2016, Custodian indicated to the Agency that, as a result of a physical

confrontation between them, Child could no longer live with him.       Child

thereafter resided with his maternal great-grandmother, who subsequently
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indicated that Child could no longer live with her, due to housing issues and

Child’s behavior.     Child also stayed with a friend’s family before being

temporarily placed with his paternal great-aunt.

        On August 9, 2016, the Agency filed a shelter care Application, and

requested the temporary placement of Child in Agency’s custody. The trial

court entered an Order the same day, granting the Agency’s request for

temporary placement and scheduling a shelter care hearing. The trial court

conducted a shelter care hearing on August 12, 2016.1

        At the time of the hearing, Child’s father (“Father”) was serving a

sentence in a state correctional institution. However, Father waived his right

to counsel, and participated in the hearing via telephone.

        Additionally, Mother was serving time in Snyder County Prison as a

Northumberland County prisoner, following her arrest for various drug

charges (including, inter alia, manufacturing methamphetamine in her

home). Mother did not attend the shelter care hearing, either in person or

via telephone.2     Mother’s interests were represented by Marc Lieberman,

Esquire (“Attorney Lieberman”), in his capacity as Northumberland County

dependency court counsel.


1
    At the hearing, Child was represented by a guardian ad litem.
2
  The trial court noted that “the policy of the County housing … [M]other did
not allow for telephonic []or video participation by … [M]other, at the time
set for the [s]helter [c]are hearing.” Trial Court Opinion, 10/14/16, at 2
(unnumbered).



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      During the shelter care hearing, Attorney Lieberman requested a

continuance, due to Snyder County Prison’s refusal to allow Mother to

participate in the hearing, and because Attorney Lieberman did not have

time to file a motion for a transport order. The Agency opposed the request,

because, “as [Mother] is incarcerated and [Father] is incarcerated[,] neither

would be an option today.”      N.T., 8/12/16, at 5.    The trial court denied

Attorney Lieberman’s request for a continuance.

      Pamela   Bowman     (“Bowman”),    an   Agency    caseworker,     testified

regarding the family’s history with the Agency. The Agency thereafter asked

the trial court to proceed with the adjudicatory hearing.3              Attorney

Lieberman objected to proceeding with the adjudicatory hearing, as Mother

was not available to participate in the proceedings. The trial court overruled

Attorney Lieberman’s objection, and granted the Agency’s request to

adjudicate Child dependent.

      Bowman     subsequently     provided    recommendations     for    Child’s

permanency plan.      The trial court adopted the Agency’s report and

recommendations at the conclusion of the hearing. The same day, the trial

court issued a Shelter Care Order, granting physical and legal custody of

child to the Agency, as well as the Dependency Order.

      Mother filed a timely Notice of Appeal and a Concise Statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).        The

3
  The Agency filed a Dependency Petition on the day of the shelter care
hearing, asserting that Child was without proper care or control.


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trial court subsequently ordered Mother to file a Pa.R.A.P. 1925(b) concise

statement.     Mother filed a second Concise Statement on September 29,

2016.

        On appeal, Mother raises the following questions for our review:

        I. Whether the trial court erred in [] denying Mother[’]s right to
        participat[e] in the adjudication hearing and suspending []
        Mother’s parental rights[,] without [] Mother being permitted
        due process of law?

        II. Whether the trial court erred in determining that the best
        interests of [C]hild would be served by denying Mother minimal
        due process?

Mother’s Brief at 10.

        We apply the following standard of review in dependency cases:

        We must accept the facts as found by the trial court unless they
        are not supported by the record. Although bound by the facts,
        we are not bound by the trial court’s inferences, deductions, and
        conclusions therefrom; we must exercise our independent
        judgment in reviewing the court’s determination, as opposed to
        its findings of fact, and must order whatever right and justice
        dictate. We review for abuse of discretion. Our scope of review,
        accordingly, is of the broadest possible nature. It is this Court’s
        responsibility to ensure that the record represents a
        comprehensive inquiry and that the hearing judge has applied
        the appropriate legal principles to that record. Nevertheless, we
        accord great weight to the [trial] court’s fact-finding function
        because the [trial] court is in the best position to observe and
        rule on the credibility of the parties and witnesses.

In re C.M.T., 861 A.2d 348, 351 (Pa. Super. 2004) (citation and brackets

omitted).

        Section 6302 of the Juvenile Act defines a dependent child, in relevant

part, as one who



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      is without proper parental care or control, subsistence, education
      as required by law, or other care or control necessary for his
      physical, mental, or emotional health, or morals.                 A
      determination that there is a lack of proper parental care or
      control may be based upon evidence of conduct by the parent,
      guardian or other custodian that places the health, safety or
      welfare of the child at risk, including evidence of the parent’s,
      guardian’s, or other custodian’s use of alcohol or a controlled
      substance that places the health, safety or welfare of the child at
      risk[.]

42 Pa.C.S.A. § 6302.     “The question of whether a child is lacking proper

parental care and control so as to be a dependent child encompasses two

discrete questions:   whether the child presently is without proper care or

control, and if so, whether such care and control are immediately available.”

In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002).          The trial court must

make a “comprehensive inquiry” with regard to these two questions, and the

petition must present evidence of a clear and convincing nature. See In re

R.W.J., 826 A.2d 10, 14 (Pa. Super. 2003).

      In her first claim, Mother asserts that the trial court violated her right

to due process by denying her the opportunity to participate in the

adjudicatory hearing.4    Mother’s Brief at 12.     Mother argues that “the

[A]gency should not have requested an immediate adjudication and the

[trial] court … should not have held the adjudication hearing without

affording [Attorney Lieberman] an opportunity to request a transportation

4
 Although Mother’s first claim is not stated verbatim in either of her Concise
Statements, her second Concise Statement includes the same broad
argument, i.e., that the trial court erred by immediately proceeding to
adjudication, without providing her proper notice. Therefore, we will address
her claim.


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order from the Snyder County Prison[.]” Id. at 13. Mother also claims that

other arrangements could have been made to secure her participation via

telephone.     Id. at 14.    Additionally, Mother asserts that there were no

exigent circumstances requiring an immediate adjudication.        Id. at 14-15,

18.

      Mother’s claim challenges the notice and service requirements afforded

by the Pennsylvania Rules of Juvenile Court Procedure. Rule 1331 provides

that “[u]pon the filing of a [dependency] petition, a copy of the petition shall

be served promptly upon the child, the child’s guardian, the child’s attorney,

the guardian’s attorney, the attorney for the county agency, and the county

agency.”     Pa.R.J.C.P. 1331.    Additionally, if the parent is not the child’s

guardian, the parent must also receive service of the dependency petition.

Id., cmt.

      Rule 1361 provides the following regarding the provision of notice of

an adjudicatory hearing:

      Rule 1361. Adjudicatory Notice

      The court shall give notice of the adjudicatory hearing to:

           (1) the attorney for the county agency;

           (2) the child’s attorney;

           (3) the guardian’s attorney;

           (4) the parents, child’s foster parent, preadoptive parent,
           or relative providing care for the child;

           (5) the county agency;


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         (6) the court appointed special advocate, if assigned; and

         (7) any other persons as directed by the court.

Pa.R.J.C.P. 1361.

      Rule 1360 directs that the court “shall issue a summons compelling all

parties to appear for the adjudicatory hearing.” Pa.R.J.C.P. 1360; see also

42 Pa.C.S.A. § 6335. The requirements for the summons, in relevant part,

are as follows:

      Rule 1360. Adjudicatory Summons

                                           ***

         (C) Requirements. The summons shall:

            (1) be in writing;

            (2) set forth the date, time, and place of the adjudicatory
            hearing;

            (3) instruct the child and the guardian about their rights to
            counsel, and if the child’s guardian is without financial
            resources or otherwise unable to employ counsel, the right
            to assigned counsel;

            (4) give the warning stating that the failure to appear for
            the hearing may result in arrest; and

            (5) include a copy of the petition unless the petition has
            been previously served.

Pa.R.J.C.P. 1360(C). “The summons shall be served[] (1) in-person; or (2)

by certified mail, return receipt and first-class mail[,]” and the serving party

must file an affidavit of service.    Pa.R.J.C.P. 1363(A), (C).   If the serving

party does not file an affidavit of service, then “the serving party shall advise



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the court of what efforts were made to notify a person.        The court may

proceed to a hearing upon a showing of reasonable efforts to locate and

notify all persons pursuant to Rule 1360.” Pa.R.J.C.P. 1363(D).

        Moreover, prior to commencing the adjudicatory hearing, the trial

court is required to ascertain whether the notice requirements of Rules 1360

and 1361 were met. See Pa.R.J.C.P. 1406(A)(1)(a).

        Our review of the record reveals that the Agency and the trial court

failed to adhere to the above requirements. Here, the dependency Petition

was filed on August 12, 2016 (the day of the shelter care hearing), and

appears in the record after the entry of the Shelter Care Order. Even the

most generous reading of the record suggests that the dependency Petition

was not filed until immediately prior to the shelter care hearing; accordingly,

Mother could not have received service of the Petition pursuant to Rule

1331.

        Further, on August 12, 2016, the trial court entered an Order

scheduling the adjudicatory hearing for the same date and time as the

shelter care hearing. Although a Notice of hearing appears in the record, it

was entered the same day as the hearing, and could not have been provided

to Mother prior to the hearing. See Pa.R.J.C.P. 1361.

        The record contains a Summons fulfilling the requirements of Rule

1360. However, the Summons is not accompanied by the requisite affidavit

of service, and nothing in the record suggests that Mother was served either



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in-person or by certified mail. See Pa.R.J.C.P. 1363(A), (C). The record is

also devoid of any discussion regarding whether reasonable efforts were

made to notify Mother.      See Pa.R.J.C.P. 1363(E).      Indeed, based upon

Snyder County Prison’s inability to facilitate Mother’s telephonic participation

in the shelter care hearing, Mother could not have been notified of the

decision to proceed with adjudication during the shelter care hearing.

      Finally, the trial court did not ascertain whether the requirements of

Rules 1360 and 1361 had been met prior to commencing the adjudicatory

hearing. See Pa.R.J.C.P. 1406(A)(1)(a).5

      Based upon the foregoing, we conclude that the trial court abused its

discretion in holding the adjudicatory hearing despite the Agency’s failure to

strictly adhere to the notice and service provisions of the Pennsylvania Rules




5
  Regarding Mother’s inability to participate in the hearing due to the Snyder
County Prison’s policy, the trial court states that it is “forced to accept the
rules and procedures established by [] other counties over which [it] has no
control.” Trial Court Opinion, 10/14/16, at 2 (unnumbered). The trial court
also states that it chose to proceed with the adjudicatory hearing due to the
exigent circumstances of the case (i.e., the history of the family with the
Agency, the confinement of both parents, and the acting out behaviors of
Child). See id. at 3. We disagree that the circumstances of this case were
so dire as to warrant the trial court’s decision to dispense with these
procedural rules, and immediately proceed with the adjudicatory hearing,
without first affording Mother proper notice.



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of Juvenile Court Procedure and the Juvenile Act.6 Accordingly, we vacate

the Dependency Order, and remand the case for a new adjudicatory hearing

in which Mother can participate.        We emphasize that, when making a

dependency determination, the trial court is to make a comprehensive

inquiry into whether Child is without proper care or control, and if so,

whether such care and control are immediately available.

      Order vacated.         Case remanded for a new adjudicatory hearing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




6
  In her second claim, Mother argues that the trial court erred in determining
that the best interests of Child would be served by denying Mother due
process. Mother’s Brief at 19-22. Based on our disposition of the case, we
need not address Mother’s second claim. Moreover, Mother failed to raise
this claim in either of her Concise Statements.                See Pa.R.A.P.
1925(b)(5)(vii) (stating that “[i]ssues not included in the Statement … are
waived.”); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (stating that “[a]ny issues not raised in a 1925(b) statement will be
deemed waived.”).


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