In the Interest of: T.C., a Minor , 2017 Pa. Super. 22 ( 2017 )

J. A32014/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.C., A MINOR :
: No. 1785 EDA 2016
Appeal from the Order Entered May 12, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-DP-0000019-2015
FID: NO. 15-FN-000010-2015
BEFORE: DUBOW, RANSOM AND PLATT, * JJ.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 10, 2017
Appellant, Jeremiah F. Kane, Esq. (“Attorney Kane”), appeals the May
12, 2016 Order entered in the Court of Common Pleas of Chester County
that denied Attorney Kane’s Challenge to the Hearing Officer’s
Recommendation and vacated his appointment as Guardian Ad Litem
(“GAL”) in a dependency proceeding. After careful review, we affirm.
A detailed recitation of the factual and procedural history is
unnecessary to our disposition. In sum, on March 16, 2015, the Chester
County Department of Children, Youth, and Families (“Agency”), filed a
Dependency Petition alleging that T.C. (“Child”) was truant. The trial court
*
Retired Senior Judge Assigned to the Superior Court.
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had previously appointed Attorney Kane to be both the Child’s attorney and
the Child’s GAL. Order, dated 3/13/15. On April 14, 2015, the trial court
adjudicated the Child dependent due to the Child’s truancy. See 42 Pa.C.S.
§ 6302. At that time, the Child was sixteen years old and pregnant with her
second child. During this proceeding, Attorney Kane represented the Child
in a dual role as the Child’s attorney and GAL.
On April 20, 2015, Attorney Kane motioned the trial court to appoint
an attorney for the Child due to a conflict of interest – the Child wanted to
remain at home and Attorney Kane believed it was in the Child’s best
interest for the Agency to place the Child outside of her home.1 See Motion,
dated 4/20/15. On April 24, 2015, the trial court retained Attorney Kane as
the Child’s GAL and appointed Gabriel Preston, Esq. (“Attorney Preston”), to
represent the Child as her attorney.2 See Order, dated 4/24/15.
In May of 2015, the Agency placed the Child at Pinkney’s Vineyard of
Faith Ministries Home (“PVFM”) for pregnant teens and mothers.
On February 22, 2016, a hearing officer conducted a permanency
review hearing. At the time of the hearing, the Child was still placed at
PVFM; her youngest child lived with her and her oldest child did not.
Attorney Kane argued that the Child should stay in placement and that her
1
This Motion is dated April 20, 2015, but was not docketed until May 4,
2015.
2
This Order is dated April 24, 2015, but was not docketed until May 4, 2015.
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oldest child should come to live with her in placement. Attorney Preston
advocated for the Child to return home.
At the end of the hearing, Attorney Preston argued that the Child did
not need both a GAL and an attorney. N.T. Hearing, 2/22/16, at 65.
Attorney Kane maintained that both the GAL and attorney were necessary
because they were advocating for different things. Id.
The hearing officer stated on the record, “I’m going to vacate the GAL,
counsel to remain[.]” Id.
On March 3, 2016, the trial court accepted the hearing officer’s
recommendations and entered an Order, inter alia, removing Attorney Kane
as the Child’s GAL and ordering Attorney Preston to remain as the Child’s
attorney. On March 7, 2016, Attorney Kane filed a Challenge to the
Recommendation Vacating the GAL (“Challenge”). On March 10, 2016, the
trial court denied Attorney Kane’s Challenge as untimely pursuant to
Pa.R.J.C.P. 1191(C). On March 18, 2016, Attorney Kane filed a Motion for
Reconsideration. On April 21, 2016, the trial court held a hearing addressing
Attorney Kane’s Challenge and on May 12, 2016, the trial court denied the
Motion for Reconsideration.
Attorney Kane appealed his removal as the Child’s GAL. Both
Attorney Kane and the trial court complied with Pa.R.A.P. 1925.
Attorney Kane raises the following issues on appeal:
1. Even if the optional remedy of requesting the Judge to find error
with the Master’s Recommendations was properly found to be
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untimely, did the [t]rial [c]ourt abuse its discretion and err in
removing [Attorney Kane] as the [GAL] in the [Child]’s
Dependency matter, without notice or written motion from the
party requesting said action and without any statutory authority
for the [c]ourt to remove a [GAL] leaving her only represented
by her attorney thereby leaving no one to advocate for the best
interests of the [Child?]
2. Did the [t]rial [c]ourt abuse its discretion and err in dismissing
the Child’s Motion/Challenge to Master’s Findings and
Recommendations based on untimeliness as Kane, in fact,
complied with the three (3) day time period to file under the
requirements of Pa.R.J.C.P. 1191 and in light of the fact that
there was no entry on the docket that the Recommendation was
ever served on Kane and that no 231 Pa. Code Rule 236(b)
notice was given and, as a result, the three day period for him to
challenge the Master’s findings and Recommendations never
began?
Attorney Kane’s Brief at 6 (reordered for ease of disposition).
We review a trial court’s decisions in a child dependency proceeding
for an abuse of discretion. In re E.P., 841 A.2d 128, 131 (Pa. Super.
2003). “We must accept the facts as found by the trial court unless they are
not supported by the record.” Id. (quotation and citation omitted). It is our
responsibility to ensure that the trial court has applied the appropriate legal
principles to the record while still affording great weight to the court’s fact-
finding function, as the trial court is in the best position to observe and rule
on the credibility of the parties and witnesses. Id.When determining the role of an attorney, the Pennsylvania Rules of
Juvenile Court Procedure (“Rules of Juvenile Procedure”) focus, inter alia, on
whether the basis for the adjudication of dependency is for status offenses
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or a parent’s failure to provide proper care and control.3 Pa.R.J.C.P. 1151.
When the basis for the adjudication of dependency is for status offenses, the
court must appoint an attorney to advocate for a child’s legal interests,
which in the context of a dependency proceeding is essentially a child’s
wishes, even if that child’s wishes are in opposition to that child’s best
interests. Pa.R.J.C.P. 1151(B) and (C).
In contrast, if the basis for the dependency determination is that a
child is without proper parental care and control, the trial court is required to
appoint a GAL to advocate for that child’s wishes and that child’s best
interests.4 Pa.R.J.C.P. 1151(A).
The reason for the distinction is that when a dependency petition
alleges status offenses, a child’s conduct is at issue and consequently that
child needs to have an attorney representing that child’s legal interests and
wishes to the court. When the basis for the dependency proceeding is the
failure of a child’s parents to provide proper parental care and control, the
focus of the hearing is on the parents’ conduct and it may be sufficient for
3
Status offenses are defined as “conduct which if engaged in by an adult
would not be legally prohibited.” In the Interest of R.B., 621 A.2d 1038,
1042 n.11 (Pa. Super. 1993) (citations omitted). The 1977 amendments to
the Juvenile Act reclassified status offenses as dependency rather than
delinquency matters. Id. at 1042. Examples of status offenses include
truancy, running away, and ungovernability. Id.4
We note that if a child’s wishes conflict with the GAL’s belief of the best
interests of that child, the GAL has a conflict and the court may separate the
representation by retaining the GAL to act solely as the child’s attorney and
appointing a new GAL. Pa.R.J.C.P. 1151 cmt.
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the court to appoint a GAL to represent that child’s wishes and best
interests without conflict.
Attorney Kane first argues that the trial court abused its discretion
when it removed him as the Child’s GAL without notice or written motion.
Attorney Kane’s Brief at 20. This issue lacks merit.
We note initially that at the February 22, 2016 hearing, before the
hearing officer made the recommendation to remove Attorney Kane as GAL
in open court, Attorney Kane had notice that Attorney Preston was
requesting the removal of the GAL and Attorney Kane had an opportunity to
state his position.
Moreover, there is no legal basis to support Attorney Kane’s argument
that the court must provide written notice before vacating the appointment
of a GAL. Because there is no specific statutory requirement that the court
provide written notice before vacating the appointment of a GAL, the trial
court did not err in vacating Attorney Kane’s appointment on the record in
open court, after giving parties an opportunity to be heard.
Attorney Kane next argues that the trial court abused its discretion
when it removed him as the Child’s GAL leaving the Child solely represented
by an attorney. See Attorney Kane’s Brief at 27. We disagree.
The basis for the adjudication of dependency in this case was the
Child’s truancy, which is a status offense. See In the Interest of R.B.,
supra at 1042. Consequently, the Rules of Juvenile Procedure only require
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the appointment of an attorney to represent the Child’s legal interests and
wishes. Pa.R.J.C.P. 1151(B).
Moreover, the Rules of Juvenile Procedure do not mention the need
for a GAL when the basis for adjudication is a status offense and thus, the
Rules do not authorize the appointment of one. Id. Further, when the basis
for adjudication is a status offense, we are confident that the trial court, who
hears the evidence in its totality, is capable of determining the best interests
of a child without a GAL. Therefore, the trial court did not abuse its
discretion when it vacated the appointment of Attorney Kane as GAL.
Attorney Kane finally argues that the trial court abused its discretion
when it dismissed Attorney Kane’s Challenge as untimely. Attorney Kane’s
Brief at 20. We disagree.
The Honorable Ann Marie Wheatcraft, sitting as the trial court judge,
authored a thorough and well-reasoned opinion, citing to the record and
relevant authority in addressing Attorney Kane’s claim that his Challenge
was timely. After a careful review of the parties’ arguments and the record,
we affirm on the basis of the trial court’s opinion which concluded that: (1)
Attorney Kane received the recommendation to vacate the GAL on February
22, 2016, when the hearing officer announced it on the record in open court;
(2) the Rules of Juvenile Procedure gave Attorney Kane three business days
after he received the recommendation to file a challenge; (3) Attorney Kane
was required to file a timely challenge by March 1, 2016; and (4) Attorney
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Kane did not file his Challenge until March 7, 2016, rendering it untimely.
See Trial Court Opinion, filed 7/1/16, at 3-6.
The parties are instructed to annex the trial court’s July 1, 2016
Opinion to any future filings.
Order affirmed.5
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
5
Appellee’s request for attorney’s fees summarily asserted in Appellee’s
Brief is denied.
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Circulated 01/20/2017 12:10 PM
IN THE INTEREST OF lN THE ,Jl;vENILE COCRT OF
CHESTER COli~TY1 PENNSYLVA~IA
T. C., A MINOR
JUVENILE DIVISION - DEPENDENCY
DOCKET NO: CP-15-DP-0000019-2015
FID: J 5-FN-000010-2015
1785 F.DA 2016
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u T. C. (''the minor") was adjudicated Dependent on April 14CZC'15.-Qn Afffil 24,
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2015, Jeremiah F. Kane, Esquire was appointed as the minor's;~G.tiprdian Aaf:.J_item
. (./) -728 A.2d 375, 378 (Pa.Super. 1999); In
the Interest of C.J. R.. 782 A.2d 568, 569-70 (Pa.Super. 2001 ).
DISCUSSION
Mr. Kane's Challenge Was Untimely
We conducted an evidentiary hearing addressing the issue of timeliness on April
21, 2016. After that hearing, we made the following findings of fact:
Pag\; 3 oi 7
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1. Mr Kane was fully aware of tile Recoc-:n1enda1ion to vacate the Order !
appointing him as GAL at the conclusion of the hearing on February 22,
2016. (N.T., 04/21/16, Kane, p. 14, 11. 1-4).
2. The Court adopted the Recommendation by entering an Order eight (8)
business days after the hearing, on March 3, 2016. (Order, 03/03/16).
3. The Challenge was filed March 7. 2016, two (2) business days after the
Order was signed by the Court.
4. The Challenge was denied as untimely on March 10, 2016. (Order,
03/10/16).
5. Mr. Kane is an experienced attorney who has represented minors as a
GAL in Chester County dependency matters for 25 years. (N.T.. 04/21/16,
Kane, p. 15, II. 7-8).
6. Immediately after the February 22. 2016 hearing, Mr. Kane discussed
filing a Challenge to the hearing officer's Recommendation with Mr.
Preston. (N.T., 04/21 /16, Kane, p. 14. ll. 20-23, Preston, p. 11, II. 17-22).
7. The Recommendation was docketed on February 22, 2016. (N.T .. ,
04/21/16, Exh. GAL 8 (Docket)).
8. Mr. Kane testified that he called the Dependency Administrator on March
2. 2016 and understood the written Recommendation was ready for him to
pick up. Mr. Kane went on to testify that he requested that the
Recommendation be mailed to him. (N.T., 04/21/16, Kane. p. 14, ll.14-17).
9. There was no testimony or evidence related to whether Mr. Kane inquired
as to when the Recommendation was forwarded to the supervisfng judge
for review and approval.
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i· Upon carefully considering the evidence presented and the relevant rules cf j
Pennsylvania Rules of Juvenile Court Procedure, we explained our determination in our
May 12, 2016 Order:
Dependency matters are in constant flux. Stability is the goal for
children in dependency. and that can only be attained through
expedient determinations and even more expedient resolutions
to objections to those determinations. Hence. a mechanism is in
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place to accelerate dependency . proceedings [as set forth in I
.
Rule 1191 J. I
( See Order, 03/3/16).
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It is directed in Rule 1191 (A) that a master "shall announce in open court on the I
record. the master's findings". Pa.R.J.C P. 1191(A). That was done in this case.3 (See
N.T., 02/22/16, pp. 60-66). The hearing officer is also directed to submit his
Recommendation to the presiding judge within two days of the hearing. Pa.R.J.CP.
1191(8). This was also done as reflected on the docket. (Hearing, 04/21/16, Exh. GAL 8
(Docket)). Rule 1191 goes on to state that a challenge must be filed within three (3)
days of receipt of the recommendation and that the written Recommendation need not
be attached to the challenge.4 Pa.R.J.C.P. 1191(C). There is also a time constraint
placed on the presiding judge. A recommendation must be reviewed within seven (7)
days. Pa.R.J.C.P. 1191(0). As a result, Mr. Kane was fully aware that the written
Recommendation had to be forwarded to the presiding judge for review no later than
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February 24, 2016. and that the Court would be making a determination on or about I
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:; Pa.R.J.C.P. 1191 (Master's Findings and Recommendation to the Judge) ("Rule 1191"L
• The parties and counsel are placed on notice of any possible issues to challenge at the
conclusion of each hearing. We find Rule 1191 permits an expedient challenge to be made
without a delay due to the preparation of a written recommendation. Pa.R.J.C P 1191(A).
Page 5 cf 7
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March 2, 20165. As a result, as soon as the February 22. 2016 hearing was concluded
Mr. Kane had notice that any Challenge he wished to file was due no later than March
1, 2016.5 Any other application of Rule 1191 contradicts the goal of expediency required
in dependency matters and would thwart the Court's ability to function expeditiously in
the best interests of a child.7
Vacating the GAL
Mr. Kane submits that we did not have the authority to vacate the Order whereby
he was appointed GAL in this case without written notice or request by motion \/Ve
disagree.
The record reflects that the minor is represented by an Attorney, Mr. Preston.
The record is also clear that the status of this minor as a dependent child Is pursuant to
42 Pa.C.S.A. §6302 (Dependent Child (5)), a child that is subject to compulsory school
attendance is habitually and without justification truant from school, a determination that
was made on March 30, 2015. This determination has never changed.
Pa.R.J.C.P. 1151 sets forth when a GAL is to be appointed and when an
Attorney is to be appointed in a child dependency case. Specifically, when a child is
deemed dependent pursuant to Pa.C.S.A. §6302 (Dependent Chrld (5)), the child is
entitled to an "attorney", not a GAL. (See 42 Pa.C.S.A. § 6311 (a)). "When a proceeding,
including a master's hearing, has been initiated alleging that the child is a dependent
child under paragraph (1}, (2), (3). (4) or (10) of the definition of "dependent child" in
s 2016 is a leap year with the leap day being observed on February 29, 2016.
6
Due to the Court's schedule, the Order WpS not processed until March 3, 2016 .
7 I
Mr. Kane cited two cases, In Re: L. M., 923 A.2d 505 (Pa.suoer. 2007) and Frazier v. City of
Philadelpl1ia. 735 A.2d 113 (Pa. 1999). at the April 21, 2016 hearing to support his argument of
timeliness. (N.T., 04/21/16, p. 21). We did not find these cases binding. These decisions
addressed the trial court proceedings prior to the effective date of Rule 1191, February 1, 2007.
Page 6 cf 7
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: 1 section 6302 (relating to definitions). the court shall appoint a ... [GAL] to represent tne
I
legal interests and the best interests of the child." Subsection (5) is explicitly left out as a
circumstance where a GAL will be appointed. This restriction in the appointment of a
GAL is again emphasized in Rule 1151 which states that the child is appointed an
Attorney, not a GAL in truancy matters. Pa.R.J.C.P. 1151 (B)(1 )(a). Therefore, it was not
error for the Court to vacate the GAL Order.
As to Mr. Kane's assertion that it was improper for the Court to act sue sponte.
we note that there is no authority preventing the Court from such action. To the
contrary, this Court is always under an obligation to act within the rules set before it and
in the best interests of the child. 42 Pa.C.S.A § 6351.
CONCLUSION
The evidence presented supports our finding that Mr Kane's Challenge was
untimely and it was not error to vacate the Order appointing him as GAL in this case.
For the foregoing reasons, the Court respectfully requests that our May 12, 2016 Order
be AFFIRMED.
BY THE COURT:
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