In the Interest of: M.D. & Z.F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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APPEAL OF: B.F. AND A.D. :
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: 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
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* 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.
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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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