In The Interest of: C.J., a Minor ( 2017 )

J-S09003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.J., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: M.S., MOTHER
No. 2499 EDA 2016
Appeal from the Order July 18, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001373-2016
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2017
Appellant, M.S. (“Mother”), appeals from the order entered on July 18,
2016, adjudicating her daughter, C.J. (“Child”), born in April of 2001,
dependent under section 6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301-
6375. The order committed Child to the legal custody of the Philadelphia
Department of Human Services (“DHS”), with physical placement of Child in
foster care with her maternal cousin (“Cousin”). The order also provided
that Mother was to have supervised weekly visits with Child. Additionally,
the order stated that Mother was referred to Behavioral Health Services
(“BHS”) for family therapy, and she was referred for domestic violence and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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parenting classes through Achieving Reunification Center (“ARC”) or another
appropriate facility. After careful review, we affirm.
In its original opinion filed on August 25, 2016, the trial court provided
the following factual background and procedural history:
The family in this case became known to DHS on June 7,
2016, when DHS received a General Protective Services (“GPS”)
report alleging inappropriate sexual behavior towards Child by
B.S., Mother’s paramour (“Paramour”). Mother and Paramour
have a history of domestic violence.
Child was fearful of returning to the home of Mother and
Paramour. Child instead remained in the home of S.J., her
maternal aunt (“Aunt”). On June 9, 2016, DHS visited Child in
Aunt’s home. Child informed DHS that Paramour had kissed
Child on the lips, and that she felt uncomfortable and did not
wish to return to the home. DHS developed a Safety Plan which
allowed Child to remain in Aunt’s home.
On July 6, 2016, Aunt contacted DHS and informed DHS
that due to an altercation between Mother and Aunt, Aunt no
longer wanted to keep Child or abide by the safety plan. Child
told DHS she was fearful and did not want to return to Mother’s
home. Child did not feel safe there because of the domestic
violence, and did not believe Mother could protect her. DHS
obtained an Order of Protective Custody (“OPC”) temporarily
committing Child to DHS custody. DHS placed Child with S.D.,
her maternal cousin (“Cousin”).
On July 8, 2016, a Shelter Care hearing was held. Mother
did not attend, but was represented by her court-appointed
counsel Nghi Duong Vo, Esq. At this hearing the court lifted the
OPC and ordered the temporary commit[ment] to stand. The
court also issued an order that Paramour was to stay away from
Child.
Following a pre-hearing conference, an Adjudicatory
Hearing was held on July 18, 2016. Mother was present, and
had hired private counsel. The court vacated Mr. Vo [as
counsel,] and David Lehman, Esq. entered his appearance as
private counsel for Mother. (N.T. 7/18/16, pgs. 3-5). Counsel
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for all parties took a sidebar at the start of the hearing to discuss
an agreement [that was] worked out during the pre-hearing
conference. (N.T. 7/18/16, pgs. 5-6). The parties, including
Mother’s private counsel, agreed that Child would be adjudicated
dependent on the basis of present inability. (N.T. 7/18/16, pgs.
6, 11). Mother was referred for domestic violence counselling,
parenting classes and family therapy. She was given weekly
supervised visits with Child. (N.T. 7/18/16, pgs. 7-8). Mother’s
counsel stipulated that if called to testify, DHS’s witnesses would
testify to the facts alleged in the dependency petition. (N.T.
7/18/16, pg. 10). The court then adjudicated Child dependent
by agreement and on the grounds of present inability, finding it
was against the health, safety and welfare of Child to return to
Mother’s home. The temporary commit to DHS was lifted and
Child was fully committed to DHS custody. The court reiterated
that counsel had stipulated to the facts in the petition, but not
their veracity. (N.T. 7/18/16, pgs. 11-12).
On August 2, 2016, Mother filed this pro se appeal of
Child’s adjudication.1
1
Mr. Lehman is still Mother’s counsel of record, and
to the trial court’s knowledge has not requested or
moved to withdraw as counsel. Mother still filed her
appeal pro se.
Trial Court Opinion, 8/25/16, at 1-2 (footnote in original). See also Trial
Court Supplemental Opinion, 10/6/16, at 1-2.
Mother originally filed a pro se concise statement of errors complained
of on appeal pursuant to Pa.R.A.P 1925(a)(2)(i) and (b) with her notice of
appeal. In its initial Pa.R.A.P. 1925(a) opinion responding to Mother’s pro se
concise statement of errors complained of on appeal, the trial court framed
Mother’s issues as follows:
1. There were no safety issues present during the time
[Child] ran away and the sexual abuse allegation was
unfounded during the DHS investigation which cancels
DHS’s reason for an open case.
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2. My rights to due process were violated and/or the
court order agreement was violated by DHS as my visits
that are court ordered were terminated.
3. The Order of Protection of Custody [sic] is invalid due
to the reasons state [sic] of sexual abuse being
unfounded by the court, and being over 1 year old.
4. I seek to appeal and terminate the Order of Protection
[sic] of Custody, and the Order of Dependency.
[Mother’s Pro Se Concise Statement of Errors Complained of on
Appeal, 8/2/16, at 1].
For the purposes of this appeal, these issues will be
consolidated into an appeal of the nonoccurrence of court-order
[sic] visits, an appeal of the OPC and an appeal of the
Adjudication of Dependency.
Trial Court Opinion, 8/25/16, at 2-3.
Regarding Mother’s pro se challenges to the visitation provided in the
order on appeal and to the OPC, the trial court stated as follows:
Mother alleges that her court-ordered weekly supervised
visitation has not been occurring. This is not an actual legal
objection to an order of the court. The non-occurrence of court-
ordered visitation may give Mother cause to begin a contempt
proceeding against the party which allegedly violated the trial
court’s order. It does not state a cognizable claim of error by
the trial court, as required by Pa.R.A.P. 1925(b)(4). The trial
court ordered that Mother was to have weekly visits, supervised
by the agency. (N.T. 7/8/16, pg. 11). Mother’s appeal of the
non-occurrence of court[-]ordered visitation should be
dismissed.
Mother appeals the Order of Protective Custody granted on
July 6, 2016. As a general rule, an actual case or controversy
must exist at all stages of the judicial process, or a case will be
dismissed as moot. In re Duran, 769 A.2d 497 (Pa. Super.
2001). “An issue before a court is moot if in ruling upon the
issue the court cannot enter an order that has any legal force or
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effect.” Johnson v. Martofel, 797 A.2d 943, 946 (Pa. Super.
2002); In re T.J., 699 A.2d 1311 (Pa. Super. 1997).
The OPC and temporary commit[ment] were granted on
July 6, 2016. Following a Shelter Care Hearing on July 8, 2016,
the OPC was lifted and the temporary commit to DHS was
ordered to stand. On July 18, 2016, the court adjudicated Child
dependent, lifting the temporary commit and fully committing
Child to DHS custody. (N.T. 7/18/16, pg. 11). The OPC was
lifted on July 8, 2016, and when Child was adjudicated
dependent, the temporary commitment of the Shelter Care order
was superseded by the full commitment. No court could enter
an effective order lifting the OPC or the temporary
commit[ment] because they had already been lifted. Mother’s
appeal of the OPC is moot and should be dismissed.
***
For the aforementioned reasons, Mother’s appeal of the
non-occurrence of visitation and appeal of the OPC do not
present actual appealable issues, and should be dismissed.
Trial Court Opinion, 8/25/16, at 3-5.
Finally, the trial court set forth its reasons for adjudicating Child
dependent as follows:
Mother argues that the trial court erred in adjudicating
Child dependent. A child is dependent if the court determines,
by clear and convincing evidence, that the child 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.” 42 Pa.C.S.A.
§6302(1). This is commonly called an adjudication on the
grounds of “present inability”. Clear and convincing evidence
has been defined as the testimony that is so clear, direct,
weighty and convincing as to enable the trier of fact to come to a
clear conviction without hesitance of the truth of precise facts in
issue. In re C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997). The
purpose of the Juvenile Act is to preserve the unity of the family
whenever possible. 42 Pa.C.S.A. §6301(b)(1). Nonetheless a
child will be adjudicated dependent when [she] is presently
without parental care and the care is not immediately available.
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In re R.T., 405 Pa. Super. 156 (1991). The Superior Court has
defined proper parental care as the care which is geared to the
particularized needs of the child and, at the minimum, is likely to
prevent serious injury to the child. In re C.R.S., supra at 845.
Mother[], through her privately-retained counsel, agreed
to the adjudication on July 18, 2016. (N.T. 7/18/16, pgs. 6, 11).
Mother was present during the pre-hearing conference and the
adjudicatory hearing, and did not object to the trial court’s order
adjudicating Child dependent. In fact, Mother agreed to the
adjudication in order to receive services and court-ordered
visitation. (N.T. 7/18/16, pgs. 7-8). Mother’s counsel also
stipulated to the facts alleged in the dependency petition. (N.T.
7/18/16, pg. 10). The dependency petition alleged that
Paramour, who lives with Mother, had exhibited inappropriate
sexual behavior towards Child, after which Mother and Child left
the home temporarily. Mother and Paramour have a history of
domestic violence, and Paramour had pushed Child during an
argument. (Dependent Petition at 5(a)). Child was fearful of
Paramour and did not want to return to Mother’s home, and
Paramour is an alcoholic who becomes violent toward Child when
drinking. (Dependent Petition at 5(b)). Child alleged that
Paramour kissed her on the lips and that she felt uncomfortable
in Paramour’s presence. (Dependent Petition at 5(d)). Child did
not want to return home because Child did not believe Mother
could keep her safe or protect her from Paramour’s domestic
violence or sexual advances. (Dependent Petition at 5(f)).
Mother and Mother’s counsel elected to agree to adjudication
and stipulate to the facts instead of questioning DHS’s witnesses
or putting on their own case. (N.T. 7/18/16, pgs. 10-11).
Based on the stipulated allegations in the Dependent Petition,
Child was fearful and unsafe, and Mother was not able to provide
the proper parental care and control necessary to care for Child.
The trial court did not hear any contrary testimony. Because the
trial court adjudicated Child dependent by agreement, finding
clear and convincing evidence, and because Mother stipulated to
facts which show that she was presently unable to care for Child,
the trial court’s adjudication was proper. The trial court did not
abuse its discretion.
***
The trial court’s finding that Child was dependent was
proven by clear and convincing evidence and agreed to by
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Mother and her privately-retained counsel. The trial court’s
adjudication of the Child was proper and should be affirmed.
Trial Court Opinion, 8/25/16, at 4-5.
On August 25, 2016, the same date that the trial court entered the
Pa.R.A.P. 1925(a) opinion, this Court, sua sponte, remanded the appeal to
the trial court for thirty days for a determination as to whether the trial court
should appoint appellate counsel for Mother, citing 42 Pa.C.S. § 6337. We
retained jurisdiction over the appeal and suspended the briefing schedule.
Also on August 25, 2016, Child’s counsel, Attorney Frank Cervone, withdrew
his appearance, and Attorney Jane Kim entered her appearance on behalf of
Child.
On September 1, 2016, the trial court appointed Attorney Jeffrey C.
Bruch as appellate counsel for Mother. On September 21, 2016, Attorney
Bruch filed in this Court a motion to amend Mother’s concise statement of
errors complained of on appeal.1 Attorney Bruch alleged that the trial court
accepted Mother’s counsel’s agreement to adjudicate Child dependent, but
there was no proof that Mother knowingly, voluntarily, and intelligently
entered the agreement, because: 1) Mother was not provided a colloquy
about the agreement and 2) Mother’s trial counsel was ineffective about
informing her about the agreement. Motion to Amend, 9/21/16, at
____________________________________________
1
We note that Attorney Bruch mistakenly referred to the document as a
Concise Statement of Facts.
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unnumbered 2. Further, Attorney Bruch asserted that Mother’s trial counsel
entered the agreement on behalf of Mother without obtaining the petition
with the facts and allegations against Mother so that trial counsel could
adequately inform Mother concerning the agreement. Id. On September
23, 2016, we granted the motion and directed Attorney Bruch to file an
amended Pa.R.A.P. 1925(b) statement by September 30, 2016. We vacated
the briefing schedule and directed the trial court to file a supplemental
opinion in response to the issues in the amended concise statement.
On September 30, 2016, Attorney Bruch filed an amended Pa.R.A.P.
1925(b) statement. On appeal, Mother raises the following issues for this
Court’s consideration:
1. Did the [t]rial judge rule in error that the Philadelphia City
Solicitor’s Office meant [sic] its burden of proof that the child
should be adjudicated dependent under 42 Pa.C.S. sec.
6302(1)[?]
2. Did the trial court judge err in accepting the agreement when
Mother did not knowingly, [and] voluntarily agree to the
adjudication[?]
3. Did the trial [c]ourt err in granting Mother visitation then DHS
or CUA [Community Umbrella Agency] suspending visitation?
Mother’s Brief at 3.
As noted by the trial court, Mother was represented by counsel when
she filed her pro se notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P 1925(a)(2)(i) and (b).
Because hybrid representation is not permissible, we will review only the
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issues preserved in Mother’s amended and counseled concise statement.
See Commonwealth v. Glacken, 32 A.3d 750, 752 (Pa. Super. 2011)
(citations omitted) (“Pursuant to our Rules of Appellate Procedure and
decisional law, this Court will not review the pro se filings of a counseled
appellant.”). We note that in her amended and counseled concise statement
of errors complained of on appeal, Mother abandoned the issues raised in
her pro se concise statement. Moreover, counsel for Mother does not raise
the propriety of the Order of Protective Custody (“OPC”) in the amended
concise statement.
In Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006), we held that an appellant waives issues that are
not raised in both her concise statement of errors complained of on appeal
and the statement of questions involved in her brief on appeal. Further,
Mother has not discussed either the occurrence of her visitation or the
propriety of the OPC with any authority or supporting argument in her brief
on appeal. See Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super.
2006) (stating that a failure to argue and to cite any authority supporting an
argument constitutes a waiver of the issue on appeal) (citation omitted). In
fact, in her brief, Mother states that her visitation issue can be decided at a
permanency review hearing or a contempt hearing, and that the issue on
appeal is moot. Mother’s Brief at 7-8. Thus, we conclude that Mother has
abandoned the issues regarding visitation with Child and the propriety of the
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OPC. Therefore, two interrelated issues remain for this Court’s
consideration: the validity of the adjudication agreement entered into by the
parties and the sufficiency of the evidence DHS presented at the
adjudicatory hearing.
Mother argues that the trial court erroneously accepted the parties’
agreement of adjudication without conducting an on-the-record examination
and colloquy of Mother. Mother relies on Boykin v. Alabama, 395 U.S. 238(1969), and asserts that the United States Supreme Court held that when a
defendant gives up constitutional rights and pleads guilty, the waiver and
guilty plea must be knowingly, voluntarily, and intelligently entered. Mother
claims that she did not indicate to the court that she knowingly, voluntarily,
and intelligently agreed to give up her right to a hearing and an opportunity
to confront the witnesses. Mother concedes that Boykin was a criminal
case, but she argues that the principle announced in that case should be
applicable to dependency matters as well. Mother’s Brief at 7.
In her related argument, Mother contends that, because the trial court
relied on the parties’ adjudication agreement, the trial court erroneously
ruled that DHS met its burden of proof with regard to showing Child was
dependent under section 6302(1) to support the adjudication. After review,
we conclude that Mother’s claims of error do not entitle her to relief.
The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows:
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“The standard of review in dependency cases requires an
appellate court to accept 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.,
608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
abuse of discretion[.]
In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
Section 6302 of the Juvenile Act defines a “dependent child” as
follows:
“Dependent child.” A child who:
(1) 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[.]
42 Pa.C.S. § 6302.
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child” further:
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental
care and control, and if so, whether such care and control are
immediately available.
Id. at 872 (internal quotations and citations omitted); see also In re J.C.,
5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he burden
of proof in a dependency proceeding is on the petitioner to demonstrate by
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clear and convincing evidence that a child meets that statutory definition of
dependency.” G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
A court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the
court finds that the child is dependent, then the court may make
an appropriate disposition of the child to protect the child’s
physical, mental and moral welfare, including allowing the child
to remain with the parents subject to supervision, transferring
temporary legal custody to a relative or public agency, or
transferring custody to the juvenile court of another state. 42
Pa.C.S. § 6351(a).
Id. 801 A.2d at 617.
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provide the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection, and physical, mental and moral welfare of
the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
(1) [t]he court shall conduct a permanency hearing for
the purpose of determining or reviewing the permanency
plan of the child, the date by which the goal of
permanency for the child might be achieved and whether
placement continues to be best suited to the safety,
protection and physical, mental and moral welfare of the
child. In any permanency hearing held with respect to
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the child, the court shall consult with the child regarding
the child’s permanency plan in a manner appropriate to
the child's age and maturity. . . .
(2) If the county agency or the child’s attorney alleges
the existence of aggravated circumstances and the court
determines that the child has been adjudicated
dependent, the court shall then determine if aggravated
circumstances exist. If the court finds from clear and
convincing evidence that aggravated circumstances exist,
the court shall determine whether or not reasonable
efforts to prevent or eliminate the need for removing the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family shall be made or continue
to be made and schedule a hearing as provided in
paragraph (3).
***
42 Pa.C.S. § 6351(e).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(f) Matters to be determined at permanency hearing.-
At each permanency hearing, a court shall determine all of
the following:
(1) The continuing necessity for and appropriateness
of the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating
the circumstances which necessitated the original
placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
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(5) The likely date by which the placement goal for
the child might be achieved.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the
Commonwealth, whether the placement continues to be
best suited to the safety, protection and physical, mental
and moral welfare of the child.
***
(9) If the child has been in placement for at least 15 of
the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable
efforts to prevent or eliminate the need to remove the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family need not be made or
continue to be made, whether the county agency has filed
or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified
family to adopt the child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to
the child’s parent, guardian or custodian within the
time frames set forth in the permanency plan.
***
(f.1) Additional determination. – Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
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(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return
of the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent,
guardian or custodian is not best suited to the safety,
protection and physical, mental and moral welfare of the
child.
(3) If and when the child will be placed with a legal
custodian in cases where return to the child’s parent,
guardian or custodian or being placed for adoption is not
best suited to the safety, protection and physical, mental
and moral welfare of the child.
(4) If and when the child will be placed with a fit and
willing relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
(5) If and when the child will be placed in another living
arrangement intended to be permanent in nature which is
approved by the court in cases where the county agency
has documented a compelling reason that it would not be
best suited to the safety, protection and physical, mental
and moral welfare of the child to be returned to the
child’s parent, guardian or custodian, to be placed for
adoption, to be placed with a legal custodian or to be
placed with a fit and wiling relative.
(f.2) Evidence. – Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including
evidence of the use of alcohol or a controlled substance that
places the health, safety or welfare of the child at risk, shall be
presented to the court by the county agency or any other party
at any disposition or permanency hearing whether or not the
conduct was the basis for the determination of dependency.
(g) Court order. – On the basis of the determination made
under subsection (f.1), the court shall order the
continuation, modification or termination of placement or
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other disposition which is best suited to the safety,
protection and physical, mental and moral welfare of the
child.
***
42 Pa.C.S. § 6351(f-g) (some emphases added).
In its supplemental opinion, the trial court addressed the issues raised
in Mother’s amended Pa.R.A.P. 1925(b) statement as follows:
Mother argues on appeal that she did not knowingly and
voluntarily enter into the agreement to adjudicate Child
dependent. Issues that were not raised at the trial court level
are waived on appeal.
“It is axiomatic that, in order to preserve an issue for
review, litigants must make timely and specific objections during
trial. . . .” In re R.P., 957 A.2d 1205, 1222 (Pa. Super. 2008)
(citations omitted); Pa.R.A.P. 302(a). The trial court has the
power to accept or reject agreements and stipulations.
Following its acceptance of stipulations, the court may hear
additional testimony as necessary to rule on a Petition for
Adjudication of Dependency. Pa.R.J.C.P. 1405. A stipulation to
adjudicate, on its own, is not sufficient for the court to
adjudicate a child dependent. Rather, the court must hear
enough facts regarding adjudication to come to an independent
determination. In Interest of Michael Y., 530 A.2d 115, 118
(Pa. Super. 1987).
Mother has not preserved this issue for review. Neither
she nor her privately-retained counsel objected to the
adjudication of dependency. In fact, both Mother and her
counsel agreed to the adjudication, and stipulated to Mother’s
present inability to care for Child. (N.T. 7/18/16, pg. 11).
Mother’s claim of error was waived.
Addressing the substance of Mother’s claim, the trial court
in this case did not accept the agreement of the parties as
conclusive. The court took testimony and attorney’s
representation about Child’s needs, safety and allegations of
sexual abuse, domestic violence and physical violence against
Child. (N.T. 7/18/16, pgs. 6-11). The parties stipulated that if
called to testify, DHS’s witness would testify to the facts alleged
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in the dependency petition. (N.T. 7/18/16, pgs. 10-11). The
trial court adjudicated Child dependent only after this stipulation
to the facts was made. (N.T. 7/18/16, pgs. 11-12). These
stipulated facts included allegations of sexual abuse and physical
violence. As a result the trial court referred Child to trauma
therapy. (N.T. 7/18/16, pgs. 10-11). Mother participated in a
pre-hearing conference with her privately-retained counsel
where these issues were discussed at length. (N.T. 7/18/16,
pgs. 5-6). At no point during the hearing did she or her counsel
object - in fact they stipulated both to the adjudication and to
facts sufficient to support the trial court’s independent
determination that Child was dependent. (N.T. 7/18/16, pg.
10). The court heard no evidence that Mother was not
voluntarily entering into this agreement. The court even
engaged Mother directly to confirm her address. Mother
confirmed her address and did not ask any further questions or
give any indication that she disagreed with the court-ordered
services or adjudication. (N.T. 7/18/16, pg. 9). Furthermore,
Mother and her attorney had a second chance to engage the
court, when Mother provided a second address for a house which
may [be] used for future reunification. (N.T. 7/18/16, pgs. 12-
13). Again, Mother did not show any indication that she
disagreed with any services or the adjudication. Mother’s
attorney also asked the court to modify visitation as discussed
by the parties, which the court so ordered. (N.T. 7/18/16, pg.
9). In fact, Mother entered into the agreement in order to
receive services: domestic violence classes, family therapy and
parenting classes. (N.T. 7/18/16, pgs. 7-8). There is no
requirement that the trial court colloquy parties before accepting
their agreement and any stipulations. Given that Mother was
represented by counsel of her choice and had attended a pre-
hearing conference, there is no reason to believe that Mother did
not understand and voluntarily agree to stipulate, fully
understanding the consequences. As a result, the trial court did
not abuse its discretion in accepting Mother’s agreement and
stipulation both to the adjudication and to the facts which clearly
and convincingly supported that adjudication.
Mother also alleges that her privately-retained counsel at
trial was ineffective. A finding of ineffective assistance of
counsel can be grounds for a new trial. In dependency
proceedings, the appellant must make a “strong showing” of
ineffectiveness of counsel. In re S.M., 614 A.2d 312, 316 (Pa.
Super. 1992). This must go beyond mere assertion of
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ineffectiveness. The [a]ppellant must demonstrate actual
prejudice to its case, and must show that if counsel had
exercised “a more perfect stewardship” the result in the case
would have been different. In practice this means that the
appellant must show that had appellant been given diligent
counsel, the petitioning party would not have been able to carry
its burden of clear and convincing evidence, and the court would
have ruled in favor of the appellant’s interests. In re Adoption
of T.M.F., 573 A.2d 1035, 1044 (Pa. Super. 1990) (en banc)
(plurality). The standard for ineffective assistance of counsel is
the same in dependency, termination and goal change
proceedings: “the appellant must show by clear and convincing
evidence that it is more likely than not that the result would
have been different, absent the ineffectiveness.” In re K.D.,
871 A.2d 823, 829 (Pa. Super. 2005).
At the adjudicatory hearing, Mother’s court-appointed
counsel was vacated and her privately-retained counsel entered
his appearance. (N.T. 7/18/16, pgs. 3-4). Mother and Mother’s
private counsel participated in a pre-hearing conference with all
parties prior to the hearing, and proceeded to agree to the
adjudication. (N.T. 7/18/16, pg. 6). Mother’s counsel then
stipulated to the facts alleged in the dependency petition. (N.T.
7/18/16, pgs. 10, 11). This stipulation was made in order to
complete an uncontested hearing expeditiously - it simply meant
that DHS’s witness would not have to orally testify. If Mother’s
counsel had not stipulated, DHS’s witness would simply have
orally testified to the exact same facts. Mother’s trial counsel did
not call Mother as a witness, or provide any evidence, but
Mother on appeal has not presented any evidence which
Mother’s trial counsel could have used to strengthen her
position. Stipulating to a report when the contents of that report
had been thoroughly discussed in a pre-hearing conference does
not show imperfect stewardship by Mother’s trial counsel.
Mother’s trial counsel was present and participated actively in
the hearing, ensuring that Mother’s correct address be on the
record for eventual reunification, and asking the court for
visitation modification which had been agreed to by the parties.
(N.T. 7/18/16, pgs. 9-10, 12-14). On appeal, Mother has not
provided any evidence which would have altered the trial court’s
determination if it had been available at the adjudicatory
hearing. For this reason, Mother has not carried her burden of
proof regarding a claim of ineffective assistance of counsel. The
trial court’s ruling was proper and should be affirmed.
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Conclusion:
For the aforementioned reasons, Mother’s amended appeal of
her voluntary agreement to adjudication and her allegations of
ineffective assistance of counsel should be dismissed. The trial
court’s adjudication of the Child was proper and should be
affirmed.
Trial Court Supplemental Opinion, 10/6/16, at 3-6.
We discern no abuse of discretion or error of law in the trial court’s
recommended disposition of Mother’s issues on appeal, and we agree with
the trial court’s rationale that Mother’s claims of error are either waived or
meritless. Mother has not set forth any statutory basis or case law in her
brief imposing a requirement that a trial court conduct an on-the-record
colloquy of a parent in a dependency case where the parent has reached an
agreement through her counsel.
Moreover, we decline Mother’s request to apply the holding from
Boykin, a criminal case, to this dependency matter. “In a dependency case,
the liberty interest of appellant is not at stake and the risk of erroneous
adjudication is so substantially mitigated by safeguards, reviews and
procedures directed toward uniting the family, that due process requires a
less didactic approach than in criminal procedures.” In the Matter of J.P.,
573 A.2d 1057, 1061 (Pa. Super. 1990). “Essentially, the theme espouses
the principle that in delinquency, dependency or adoption cases involving
children, the constitutional provisions, rules and laws designed to govern
proceedings in adult criminal or civil actions are not necessarily applicable or
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desirable.” Id. at 1062. Bearing these principles in mind, we point out that
unlike a criminal case where a defendant enters a guilty plea and is
sentenced, an adjudication of dependency is subject to further scrutiny in
permanency review hearings
For the reasons set forth in the trial court’s August 25, 2016 opinion,
and its October 6, 2016 supplemental opinion, we conclude that Mother is
entitled to no relief. Accordingly, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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