In Re: J.A., Appeal of: D.A. , 2015 Pa. Super. 3 ( 2015 )

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2015 PA Super 3IN RE: J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
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APPEAL OF: D.A., MOTHER : No. 682 WDA 2014
Appeal from the Order entered March 27, 2014,
Court of Common Pleas, Allegheny County,
Juvenile Division at No. 13-1136
IN RE: J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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:
:
APPEAL OF: D.A., MOTHER : No. 1158 WDA 2014
Appeal from the Order entered June 18, 2014,
Court of Common Pleas, Allegheny County,
Juvenile Division at No. 13-1136
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and WECHT, JJ.
OPINION BY DONOHUE, J.: FILED JANUARY 06, 2015
D.A. (“Mother”) appeals from two orders entered by the Allegheny
County Court of Common Pleas (the “juvenile court”). The first appeal,
docketed at 682 WDA 2014 (the “first appeal”), is from the March 27, 2014
order granting the motion of KidsVoice, guardian ad litem for J.A.,
appointing KidsVoice as J.A.’s medical guardian.1 As neither the Juvenile Act
1
The term “medical guardian” appears nowhere in either the Juvenile Act or
the Rules of Juvenile Court Procedure. Our review of the record reveals that
it is meant to describe a person with medical decision-making powers for a
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nor the Rules of Juvenile Court Procedure permit this appointment, we
vacate the juvenile court’s order.2
The second appeal, docketed at 1158 WDA 2014 (the “second
appeal”), pertains to the order entered on June 18, 2014. The basis of
Mother’s appeal from this order is the juvenile court’s refusal to entertain
testimony in support of Mother regaining medical decision-making rights for
J.A. The juvenile court refused to do so pursuant to Rule of Appellate
Procedure 1701, as the issue of the propriety of the appointment of
KidsVoice as J.A.’s medical guardian was pending on appeal. Because the
juvenile court may always enter orders in the child’s best interest, we
conclude that it erred by prohibiting questioning on that basis.
Also before this Court is a motion filed by KidsVoice seeking the
dismissal of both of the aforementioned appeals on mootness grounds based
upon the juvenile court’s November 7, 2014 order appointing Mother as
J.A.’s medical guardian. We conclude that although the November 7, 2014
order renders the appeals before us moot, the issues raised in the appeals
dependent child. As this is the term used in the juvenile court’s March 27,
2014 order, we likewise use it throughout this opinion.
2
Following oral argument, the guardian ad litem submitted a request to file
a post-submission communication pursuant to Pa.R.A.P. 2501 based upon
her belief that she was unable to adequately answer a question posed during
oral argument during her allotted time. We deny this request.
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are capable of repetition and likely to evade review. We therefore deny
KidsVoice’s motion to dismiss the appeals.3
The record reflects the following facts and procedural history. The
Allegheny County Office of Children, Youth and Families (“CYF”) became
involved with D.A. and her family on April 24, 2013, when it learned that
J.A. (born in September of 2007) and her five minor siblings were residing
with their 19-year-old sister.4 Mother reportedly had been incarcerated
since April 4, 2013 on charges of criminal homicide and aggravated assault
for the death of J.A.’s biological father, D.J. On this basis, CYF filed a
dependency petition on June 4, 2013, alleging that J.A. and her minor
siblings were “without proper parental care or control, subsistence,
education as required by law, or other care or control necessary for [their]
physical, mental, or emotional health, or morals[.]” Dependency Petition,
6/4/13, at 3; see 42 Pa.C.S.A. § 6302(1) (defining “Dependent Child”). The
juvenile court entered an order the same day appointing KidsVoice as J.A.’s
guardian ad litem (“GAL”).
3
On November 17, 2014, this Court entered an Order Per Curiam listing the
second appeal before the argument panel that heard the first appeal and
further ordered KidsVoice to supplement the record pursuant to Pa.R.A.P.
1926 with all documents preceding and pertaining to the juvenile court’s
entry of the November 7, 2014 order appointing Mother as J.A.’s medical
guardian. Because our resolution of KidsVoice’s motion necessarily disposes
of the second appeal filed by Mother, we decide the cases in a single opinion.
4
CYF acquired this information after two of J.A.’s minor siblings allegedly
“got into a physical altercation.” Dependency Petition, 6/4/13, at 3.
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On August 6, 2013, the juvenile court granted CYF’s request for a
continuance, as CYF had additional concerns regarding alleged “unresolved
medical issues with the children that may cause an amendment to the
petition.” Miscellaneous Order, 8/6/13. CYF filed an amended dependency
petition on August 14, 2013, indicating that Mother was released from jail,
was on house arrest and required financial assistance from CYF to pay
utilities and rent, but was “becoming disinterested” with complying with
services provided by CYF. Dependency Petition, 8/14/13, at 3. At the time
of the filing of the amended petition, CYF was unable to obtain medical
records for several of the children, including J.A., “due to the lack of
information.” Id.
The juvenile court held the adjudicatory hearing on August 28, 2013,
at which Mother stipulated that the children were dependent pursuant to 42
Pa.C.S.A. § 6302(1). As stipulated by Mother, the juvenile court found that
Mother was in need of assistance from CYF to provide proper care for and
control of the children, particularly the medical needs of J.A., who had been
diagnosed with Turner syndrome as an infant.5 The juvenile court further
5
According to the testimony of Dr. Jennifer Wolford of Children’s Hospital of
Pittsburgh, Turner syndrome is a condition that results in a female being
born with a missing X chromosome. N.T., 6/18/14, at 55. In other words,
while most females are born with two X chromosomes (XX), J.A. was born
with only one X chromosome (XO). Id. Turner syndrome can cause a
variety of medical and developmental problems, including problems with the
cardiac and endocrine systems. Id. This diagnosis required J.A. to have
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entered a dispositional order, leaving the children in Mother’s physical
custody and ordering, in relevant part, that Mother “attend to the children’s
medical needs[] and comply with the recommendations of Children’s
Hospital.” Order of Adjudication and Disposition – Child Dependent,
8/28/13, at 2. In the August 28, 2013 order, the juvenile court neglected to
indicate who had legal custody of J.A.6
Following the November 21, 2013 permanency review hearing, the
juvenile court ordered, inter alia, that J.A. attend appointments with an
endocrinologist and cardiologist. The juvenile court ordered that J.A. remain
in Mother’s physical custody, and remedied its prior omission by identifying
CYF as the child’s legal custodian.
Mother and the children failed to appear at the February 20, 2014
permanency review hearing. The juvenile court subsequently learned that
they had been in a motor vehicle accident on their way to the hearing and
that J.A. had been ejected from the car in which she was either an
unrestrained or an improperly restrained passenger. At the rescheduled
hearing on March 20, 2014, testimony revealed that J.A. remained
heart surgery as an infant. Id. Turner syndrome is a lifetime disorder for
which there is no cure. Id. at 60.
6
Under “CUSTODY AND CONDITIONS,” the juvenile court only addressed
who had physical custody of the child, stating: “Physical custody of the child
shall be with the mother, subject to the conditions and limitations as the
court prescribes, including supervision as directed by the court for the
protection of the child.” Order of Adjudication and Disposition – Child
Dependent, 8/28/13, at 1.
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hospitalized at Children’s Hospital of Pittsburgh from the accident. According
to the testimony of Dr. Jennifer Wolford, an attending physician in the
Division of Child Advocacy of Children’s Hospital, J.A. broke her femur and
multiple facial bones, all of which Mother consented to having repaired. She
had bruised lungs and several contusions, which were healing. She also had
multiple central lines placed and a tracheostomy, to which Mother
consented.
J.A. sustained her most significant and severe injury to her brain. As
she was only six years old at the time of the accident, she still had a soft
spot in her head, which she struck, resulting in the excess fluid not draining
from her brain as it should. Doctors placed an external drain in J.A.’s head
in an attempt to drain the fluid, but J.A. began having fevers. Because of
the risk of infection, they clamped the external drain after 26 days, which,
according to Dr. Wolford, was longer than an external drain usually stayed in
place. Dr. Wolford testified that the standard of care called for the child to
receive an internal drain, called a shunt, but that Mother would not give her
consent. According to Dr. Wolford, this was a very common and relatively
simple procedure. Dr. Wolford filed a Childline report alleging medical
neglect by Mother, as her refusal to provide consent for this procedure was
impeding J.A.’s recovery from her brain injury.
Dr. Wolford ordered an additional CT scan of J.A.’s brain the morning
of the March 20, 2014 hearing, which “show[ed] extra fluid buildup actually
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outside of her brain.” Id. According to Dr. Wolford, this fluid buildup would
eventually lead to too much pressure inside of J.A.’s brain. The procedure
was urgent, but it had not yet become an emergent situation requiring
immediate surgery. Dr. Wolford testified, however, that the situation could
become life threatening at any time. Although she was unaware whether
anyone had discussed with Mother the results of that morning’s scan, Dr.
Wolford testified that several doctors, herself included, had previously
spoken with Mother about the need for a shunt and that Mother had not
consented to the procedure, stating that she wanted to wait and see how
J.A. did on her own. During her testimony, Mother indicated her belief that
the swelling in the child’s brain had reduced and that doctors clamped the
external drain from the child’s brain because it was no longer necessary.7
J.A. was also experiencing an inflamed gallbladder, which was
reportedly causing the child a great deal of pain. Doctors wished to drain
her gallbladder, but again, Mother would not consent to this procedure.
Mother explained during her testimony that this was because she did not
“want that much trauma on [J.A.]’s body right now.” Id. at 49. Mother
testified that she believed the cause of the inflammation to be that the
hospital attempted to initiate feedings too quickly and thought that the
provision of antibiotics would help. Mother did not think J.A. was
7
The record reflects that Mother arrived late to the March 20, 2014 hearing
and did not hear Dr. Wolford’s testimony.
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uncomfortable and testified that she believed that the doctors were taking
the child off pain medications.
Mother testified that she was at the hospital almost the entire time
J.A. was there. Mother stated that she was aware that a CT scan took place
the morning of the hearing but that no one had spoken to her about the
results. She testified that if, upon her return to the hospital, doctors
informed her that J.A. still needed an internal shunt in her brain and to have
her gallbladder drained, she was willing to consent to both procedures.
At the inception of the March 20, 2014 hearing, the GAL indicated that
she planned to make an oral motion for KidsVoice to be appointed as J.A.’s
medical guardian because of Mother’s reported refusal to consent to the
aforementioned procedures. The GAL withdrew this request at the
conclusion of the hearing based upon Mother’s stated willingness to provide
the necessary consent. The juvenile court entered an order recounting
Mother’s agreement to consent to the procedures “once the situation is fully
explained to her,” and requiring that all of the children “receive all necessary
medical, dental and eye care.” Permanency Review Order (Non-Placement),
3/21/14, at 2.
On March 26, 2014, the GAL filed an emergency motion requesting the
appointment of KidsVoice as J.A.’s medical guardian. In the motion, the GAL
averred as follows:
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a. [J.A.] has been in need of the internal shunt for her
brain for over a week at this point. She has had two
temporary drains placed, the most recent one over
this past weekend because [J.A.] was literally
“squirting brain fluid from her brain.” The temporary
drains cannot remain in place for extended periods of
time because there is an extremely high risk of
infection.
b. Mother indicated at the continued permanency
review hearing on March 20, 2014 before Hearing
Officer Hobson that she would be willing to sign
consents if the procedures were still indicated after
an updated ultrasound of the gallbladder and CT
scan of the brain.
c. Updated diagnostics tests were performed and
confirmed that the procedures were still necessary.
d. Mother spoke to the resident physician on Monday
but insisted upon speaking to the attending
neurosurgeon who was out of town until the
following day.
e. Mother spoke to the attending neurosurgeon on
Tuesday who again affirmed the need for the internal
shunt.
f. Despite speaking to 4-6 different neurosurgeons on
staff at Children’s Hospital – Pittsburgh, Mother now
is requesting a second opinion from a neurosurgeon
who is not on staff at Children’s.
g. [J.A.]’s medical condition, in the [pediatric intensive
care unit], is too unstable to be transferred to
another facility.
h. The doctor’s [sic] believe that this procedure must
be completed by Thursday, March 27, 2014[,] and
have expressed this to [M]other.
i. [J.A.]’s condition is extremely life-threatening in that
if she does not get the internal shunt, the brain fluid
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will collect in her brain and eventually cause her
brain to herniate. This will cause all life functions to
cease. A “best case” scenario would be a mere
partial herniation resulting in probable severe and
permanent brain impairment.
j. Mother has hesitated to sign releases based upon her
belief that God will heal [J.A.] and not wanting to put
[J.A.] through additional medical procedures if they
are not necessary.
k. [J.A.] also requires her gallbladder to be drained as
it is severely swollen and inflamed.
l. The gallbladder procedure is not necessary to save
[J.A.]’s life[;] however, it is the cause of great pain
and discomfort to this already severely injured and ill
child.
m. Mother has hesitated to sign for the gallbladder
procedure since she herself has gallbladder problems
and just deals with them.
n. Mother did consent to orthopedic surgery on [J.A.]
for her broken femur. Though an external fixation
was the ideal medical procedure recommended,
[M]other would only consent to an internal fixation
because she did not want additional scarring on
[J.A.]
o. Mother also consented to plastic surgery to repair
some of the injuries to [J.A.]’s face and jaw.
Emergency Motion to Appoint Medical Guardian, 3/26/14, ¶ 4. The GAL
appended to the motion three reports authored by Dr. Wolford, which
provided support for the above averments. The GAL further averred that it
was in J.A.’s best interest to have a medical guardian appointed to consent
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to the necessary medical procedures; KidsVoice was willing to accept said
appointment; and CYF was in agreement with this request.
The juvenile court held argument on the emergency motion the
following day. At that time, the GAL reported to the court that J.A.’s
situation had changed – that because the pressure in the child’s brain was so
great, she needed a “skull base repair[,] which involves widening the hole
that connects the neck to the base of the skull,” as opposed to just the
placement of an internal shunt. N.T., 3/27/14, at 2-3. Counsel for Mother
stated that Children’s Hospital informed Mother of the need for the new
procedure yesterday and that she planned to discuss it with the doctors that
afternoon. Counsel for Mother objected to the appointment of a medical
guardian, arguing that there is nothing in the law that permits such an
appointment. Rather, counsel proposed that the juvenile court act according
to Rule 1145 of the Rules of Juvenile Court Procedure and enter an order
“for the treatment of [J.A.] for this particular instance[.]” Id. at 7. Mother
did not request medical testimony in support of the motion or a continuance
to be able to call witnesses in opposition to the motion. The juvenile court
granted the GAL’s motion and appointed KidsVoice as J.A.’s medical
guardian. The March 27, 2014 order permitted KidsVoice to consent on
J.A.’s behalf to “ordinary and extraordinary medical treatment and
psychological/psychiatric treatment.” Appointment of Medical Guardian
Order, 3/27/14.
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Mother filed a timely notice of appeal along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(1)(i). The
juvenile court issued a written opinion pursuant to Pa.R.A.P. 1925(a)(1)(ii).
Following the appointment of KidsVoice as medical guardian, Attorney
Amy Racunas of KidsVoice’s guardianship unit8 went to Children’s Hospital,
consulted with the relevant professionals, and then consented to the surgery
required to repair the skull fracture that J.A. ultimately needed after blowing
cerebral spinal fluid out of the base of her skull.9 Because J.A. expelled so
much fluid from her brain, the pressure in the child’s head decreased,
negating the need for a shunt at that time. J.A. required the removal of her
gallbladder, which also occurred. Attorney Racunas further provided consent
for J.A. to receive medication to relieve a blood clot found when doctors
removed the cast from the child’s leg. Mother reportedly wanted to “wait
and see,” but because of the potentially life-threatening nature of a blood
8
Attorney Racunas was the attorney serving as J.A.’s medical guardian.
According to Attorney Racunas, a team of four attorneys and one supervising
attorney comprise the guardianship unit of KidsVoice. N.T., 6/18/14, at 189.
One of the five attorneys is available to address problems that arise on the
guardianship cases on a twenty-four-hour basis. Id. All five attorneys in
the guardianship unit have access to information on every child for whom
KidsVoice serves as medical guardian and make decisions after consulting
with the professionals on the case and reviewing the information contained
in the child’s file regarding any prior decisions made for the child’s medical
care. Id.
9
Mother reportedly also consented to the procedure to repair J.A.’s skull,
but it is unclear whether she did so before or after Attorney Racunas
provided consent pursuant to her appointment as medical guardian. See id.
at 84, 190.
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clot, Attorney Racunas overrode Mother’s decision and permitted the child to
receive the medication.
Subsequently, the juvenile court held a permanency review hearing on
June 18, 2014. Dr. Wolford testified as an expert in the fields of pediatrics,
child maltreatment, child abuse, and child neglect. She provided detailed
testimony regarding J.A.’s condition, including an overview of the child’s
four-to-six-week stay in the intensive care unit (“ICU”) of the hospital,
during which concerns arose about Mother “picking and choosing” which of
the recommended treatments for J.A. she would provide her consent. N.T.,
6/18/14, at 19-20. Dr. Wolford testified that although this would typically
be acceptable for a parent to do, she explained that “when you are in an ICU
setting after a severe traumatic brain injury, selecting or not selecting
specific treatments are, frankly, detrimental to the forward movement of
[the child’s] progress and treatment.” Id. at 20.
Dr. Wolford testified that Mother’s refusal to consent to draining J.A.’s
gallbladder, for example, resulted in the child experiencing pain, which they
treat aggressively in the ICU because pain causes an increase in the
patient’s blood pressure and heart rate. The internal shunt became
necessary when J.A. began experiencing high fevers, requiring the removal
of the external drain in her brain. According to Dr. Wolford, the external
drain was “an open track to infection,” and an infection in her brain would
have killed the child. Id. at 25.
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As of the June 18, 2014 hearing, J.A. remained hospitalized, having
transferred to the rehabilitation unit of Children’s Hospital, which was
located in the Children’s Home. She was wheelchair bound and unable to sit
independently, requiring restraints to keep her upright. The child could not
move by herself in any respect, even to shift her weight in her chair. She
was unable to attend to her own oral or physical hygiene and needed to be
turned and moved to prevent bedsores and skin breakdown. She required
braces on her ankles that had to be put on and removed according to a
schedule to protect her skin. She received all of her nourishment and
multiple daily medications through a G-tube that fed directly into her
stomach. She could not take any food by mouth because of the risk of
aspirating or choking. She could not watch television because it was not
good for her brain injury recovery. Dr. Wolford testified that Mother either
did not understand or did not follow the directions with respect to many
aspects of the child’s care.
While in the rehabilitation unit, J.A. received occupational therapy,
physical therapy and speech therapy, each of which occurred one to three
times every day. According to Dr. Wolford, Mother’s participation in these
therapies were critically important for the child, as “[J.A.] is going to make
her best gains in [the] first six to twelve months,” and Mother was going to
have to continue working on the exercises with J.A. when the child returned
home. Id. at 31-32. Mother reportedly only began regularly participating in
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J.A.’s occupational and physical therapy sessions a few weeks before the
hearing.
Dr. Wolford testified to her opinion that J.A. needed a calm, controlled
environment in which she would receive consistent care twenty-four hours a
day. She expressed concerns about Mother’s ability to provide that
environment at home based on the number of children in the house,
Mother’s response to several of J.A.’s treatment needs, and one disruptive
incident that occurred involving J.A.’s older sibling, resulting in the sibling’s
removal from the hospital.
Mother’s counsel attempted to cross-examine Dr. Wolford regarding
the necessity of KidsVoice’s appointment as J.A.’s medical guardian.
Counsel for CYF objected to that line of questioning, citing Rule of Appellate
Procedure 1701(b) for the proposition that the juvenile court could only
maintain the status quo and was unable to alter its appointment of KidsVoice
as medical guardian while the question of the propriety of that appointment
was on appeal. The juvenile court informed Mother’s counsel that if he was
engaging in this questioning in the hopes of having medical decision-making
rights returned to Mother, the court would not entertain such a request
during the pendency of the aforementioned appeal. Counsel for Mother
responded: “I appreciate the direction, because that was going to be one of
my requests to return medical decision-making rights to [M]other based
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upon [there] no longer being a need,” and then abandoned that line of
questioning. Id. at 88.
At the conclusion of the June 18, 2014 hearing, the juvenile court
removed J.A. from Mother’s physical custody and gave CYF permission to
place the child “in a medically appropriate placement.” Shelter Care Order,
6/18/14. It did not alter its order regarding KidsVoice’s appointment as
medical guardian for the child.
On July 10, 2014, counsel for Mother filed a motion seeking the
juvenile court’s reconsideration of its invocation of Rule 1701, asserting that
“[the juvenile court]’s authority over J.A. under 42 Pa.C.S.A. § 6351 trumps
Pa.R.A.P. 1701.” Motion to Reconsider Re: 1701 Et Seq., 7/10/14, ¶ 11.
The juvenile court held argument on the motion on July 15, 2014, at which a
disagreement arose regarding precisely what transpired at the June 18,
2014 hearing on this issue. The juvenile court indicated that it would order
the transcript and have counsel convene in chambers to review it together.
Counsel for Mother requested that the juvenile court expressly grant
reconsideration, without ruling on the merits of the motion, to toll the appeal
period. The juvenile court did not. Thereafter, Mother filed a timely notice
of appeal on July 18, 2014, concomitantly filing a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(1)(i). The
juvenile court issued a written opinion pursuant to Pa.R.A.P. 1925(a)(1)(ii).
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In the first appeal, Mother raises the following issues for our review,
which we reordered for ease of disposition:
[1.] Did the [juvenile court] abuse[] its discretion by
making an error of law and acting manifestly
unreasonable in appointing a [m]edical [g]uardian
without legal authority to do so?
[2.] Did the [juvenile court] abuse[] its discretion by
making an error of law and acting manifestly
unreasonable when it disregarded Pa. R.J.C.P. 1145?
[3.] Did the [juvenile court] abuse[] its discretion by
making an error of law and was [sic] manifestly
unreasonable when abrogating its duty to exercise
proper supervision of a dependent child?
[4.] Did the [juvenile court] abuse[] its discretion by
making an error of law and was [sic] manifestly
unreasonable when it deprived [Mother] of her
substantive and procedural due process rights to
participate in her child’s medical treatment without a
showing in the record of her being unavailable,
unwilling or incapacitated or even giving her a
reasonable opportunity to respond to the allegations?
Mother’s Brief (first appeal) at 6.
In the second appeal, Mother raises one issue for our review: “Did the
[juvenile court] abuse its discretion by not applying the law and making a
decision that was manifestly unreasonable by applying Pa.R.A.P. 1701
jurisdictional limitations on itself at a dependency permanency hearing?”
Mother’s Brief (second appeal) at 6.
As stated above, on November 7, 2014, the GAL filed a motion to
dismiss as moot both of the pending appeals in this matter based upon the
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juvenile court’s November 7, 2014 order reinstating Mother’s medical
decision-making rights and ostensibly vacating KidsVoice’s appointment as
J.A.’s medical guardian.10 Prior to addressing the question of mootness,
however, we must first determine whether the juvenile court had jurisdiction
to enter the November 7, 2014 order.11
Pursuant to Rule of Appellate Procedure 1701, a lower court generally
loses jurisdiction to proceed further in a matter after the filing of an
appeal.12 Pa.R.A.P. 1701(a). “Where only a particular item, claim or
assessment adjudged in the matter is involved in the appeal, […] the appeal
[…] shall operate to prevent the trial court […] from proceeding further with
10
Although the November 7, 2014 order does not expressly terminate
KidsVoice’s appointment, the GAL acknowledges that KidsVoice is no longer
appointed as J.A.’s medical guardian pursuant to that order. See Motion to
Dismiss for Mootness, 11/7/14, ¶ 3. Our review of the record reveals that
this was the juvenile court’s intention. See N.T., 11/7/14, at 101-02.
Neither the juvenile court nor any party contends that the order did not
terminate KidsVoice’s appointment.
11
Although no party raised a question of the juvenile court’s jurisdiction in
response to the GAL’s motion, “it is well established that questions of
jurisdiction may be raised sua sponte.” Commonwealth v. Weathers, 95
A.3d 908, 912 (Pa. Super. 2014) (citation omitted). Additionally, we note
that at the June 18, 2014 hearing, CYF raised the juvenile court’s jurisdiction
to terminate KidsVoice’s appointment as J.A.’s medical guardian, at which
time the court ruled that it did not have jurisdiction to enter such in order, in
direct contravention to its later determination on November 7, 2014.
12
Rule 1701(b) sets forth actions the lower court may take while a case
before it awaits appellate review, none of which apply or are relevant to the
case at bar. See Pa.R.A.P. 1701(b).
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only such item, claim or assessment,” unless the lower court or this Court
otherwise orders. Pa.R.A.P. 1701(c).
In dependency matters, however, appellate courts in this
Commonwealth have determined that the filing of an appeal does not
necessarily divest the juvenile court of jurisdiction to proceed. Rather,
following the appeal of a juvenile court’s order in a dependency matter,
“[t]he [j]uvenile [c]ourt maintains a continuing plenary jurisdiction in
dependency cases under 42 Pa.C.S.A. § 6351[.]” In re Griffin, 690 A.2d
1192, 1200 (Pa. Super. 1997) (emphasis omitted) (quoting In re Tameka
M., 580 A.2d 750, 752 (Pa. 1990)). This is because depriving a juvenile
court of jurisdiction in a dependency case following the filing of an appeal
“would render the court powerless to prevent any abuse, no matter how
egregious, of a dependent child at the hands of his custodian” and “would
also frustrate the statutory authority of [the] [j]uvenile [c]ourt to exercise
continuing independent and original authority to adjudicate in the best
interests of a dependent child.” In re Griffin, 690 A.2d at 1200 (citing
In re Lowry, 506 Pa. 121, 127, 484 A.2d 383, 386 (1984)). “As the best
interest of the children is always paramount, the continued finger of the trial
court on the pulse of the case is needed, even while the matter is appealed.”
In re H.S.W.C.-B, 836 A.2d 908, 911 (Pa. 2003).
As the above case law indicates, the juvenile court is empowered to
enter orders that are in the child’s best interest consistent with the
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mandates of section 6351 of the Juvenile Act,13 even when the appeal of an
order issued by the juvenile court in the matter remains pending. This is not
to say that Rule 1701 is inapplicable in an appeal from an order entered in a
dependency proceeding. To the contrary, we have cited to (and in some
cases, relied upon) Rule 1701 in several appeals from dependency orders in
reaching a resolution of the issues raised on appeal. See, e.g., In re
Adoption of R.K.Y., 72 A.3d 669, 675 (Pa. Super. 2013) (concluding,
pursuant to Rule 1701(b)(1), that the juvenile court had jurisdiction to
correct inadvertent errors made in its decrees terminating parental rights
subsequent to the mother’s appeal from the decrees), appeal denied,
76 A.3d 540 (Pa. 2013); In re Griffin, 690 A.2d at 1199 (relying in part
upon Rule 1701(c) to conclude that the juvenile court had jurisdiction to
conduct a contempt hearing concerning the foster parents’ failure to abide
by its dependency orders despite the fact that appeals were pending
concerning the termination of the mother’s parental rights to the subject
13
Section 6351 of the Juvenile Act sets forth the scope of the juvenile
court’s dispositional and permanency review orders for a dependent child;
persons and entities entitled to temporary and permanent legal custody of a
dependent child; findings the juvenile court is required to make prior to
removing a child from a parent’s physical custody; placement options for a
dependent child; considerations and mandates regarding sibling visitation;
and requirements for permanency review hearings, including the frequency,
required determinations and findings, and evidence the court must review.
See 42 Pa.C.S.A. § 6351(a)-(c), (e)-(g). With the exception of a finding of
aggravated circumstances (which requires a finding by clear and convincing
evidence), all considerations under section 6351 are to be guided by child’s
best interest. Id.; In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011).
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children and the removal of the children from the physical custody of a
relative caregiver).
In the case at bar, it is undisputed that the juvenile court’s November
7, 2014 order terminated KidsVoice’s appointment as J.A.’s medical
guardian, the propriety of which was on appeal before this Court in the first
appeal. See supra n.10; N.T., 11/7/14, at 101-02. The November 7, 2014
order also constituted a reversal of the juvenile court’s prior determination
(on June 18, 2014) that Rule 1701 barred it from disturbing KidsVoice’s
appointment as medical guardian during the pendency of the first appeal,
which ruling was the basis of the second appeal. As the November 7, 2014
order constitutes actions that Rule 1701 would generally prohibit, the
juvenile court’s jurisdiction to enter the order depends on whether it
terminated KidsVoice’s appointment as J.A.’s medical guardian pursuant to
section 6351 and its determination that it was in the child’s best interest.
See In re H.S.W.C.-B, 836 A.2d at 911; In re Griffin, 690 A.2d at 1200.
The record reveals that at the November 7, 2014 review hearing held
in this matter, a representative from Pediatric Specialty Care, where J.A.
was placed following her discharge from Children’s Hospital, testified that
Mother and her eighteen-year-old son had been learning how to care for J.A.
to prepare for the child’s discharge from that facility. N.T., 11/7/14, at 29.
She further testified regarding the details of the training and that although
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Mother had not yet completed half of the requirements, she and her son
were regularly visiting J.A. and participate in her care. Id. at 29-32, 52.
The child was medically stable at that time and Attorney Racunas
testified that she had made no medical decisions for J.A. since the prior
hearing. Id. at 32-33, 83. Attorney Racunas further testified to her
understanding that J.A. was to have an Individualized Education Plan and
that it would incorporate her physical and occupational therapy. Id. at 83-
84. As Mother still had educational decision-making powers for J.A. and the
school would require the signing of both educational and medical consents, it
could potentially become confusing having one person responsible for
making educational decisions and a different person responsible for making
medical decisions. Id. at 84. Furthermore, as Mother was working toward
the goal of having J.A. return to her physical custody, Attorney Racunas
testified that she thought it would be best for the juvenile court to terminate
KidsVoice’s appointment as medical guardian at that time so that the
juvenile court could ensure that Mother was able to make medically
appropriate decisions for the child prior to J.A.’s discharge from Pediatric
Specialty Care. Id. at 84-85. The Pediatric Specialty Care representative
testified that she would call CYF and the GAL if Mother made medical
decisions that were not in the child’s best interest. Id. at 33.
At the conclusion of the hearing, the juvenile court stated, in relevant
part:
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As far as the medical decision-making goes, let’s
give it back to mom – I mean, she is going to have
to do it at some point anyhow – with the stipulation
that if she is going to go against any type of medical
opinions or what the doctors want to do, that
[counsel for Mother] has to come in with a motion
for that and we’ll deal with it. But the hospital is
going to have to let us know that she is going
against their advice.
Id. at 101-02.
Although the juvenile court did not use the phrase “best interest of the
child,” the record supports a finding that it entered the November 7, 2014
order terminating KidsVoice’s appointment as J.A.’s medical guardian based
upon its conclusion that it was in the child’s best interest to have Mother
make medical decisions on her behalf while in a supervised setting since the
goal was to have J.A. placed in Mother’s custody upon her discharge. Thus,
pursuant to existing precedent, we conclude that the juvenile court had
jurisdiction to enter the November 7, 2014 order pertaining to medical
decision-making rights for J.A.
The question remains, then, whether the November 7, 2014 order
renders moot the two appeals pending before this Court.
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. An issue can become
moot during the pendency of an appeal due to an
intervening change in the facts of the case or due to
an intervening change in the applicable law. In that
case, an opinion of this Court is rendered advisory in
nature. An issue before a court is moot if in ruling
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upon the issue the court cannot enter an order that
has any legal force or effect.
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (internal
citations and quotations omitted). In each pending appeal, Mother asks this
Court to reverse the juvenile court’s decisions. See Mother’s Brief (first
appeal) at 23; Mother’s Brief (second appeal) at 14. The juvenile court’s
November 7, 2014 order, however, already effectively granted the relief
requested, as it terminated the prior appointment of KidsVoice as J.A.’s
medical guardian. Thus, there is nothing for this Court to “reverse.” As our
decisions in these appeals would not have legal force or effect, we agree
with KidsVoice that the November 7, 2014 order technically mooted both
appeals. See In re D.A., 801 A.2d at 616.
We conclude, however, that we are nonetheless able to decide both
appeals, as they present questions that are “capable of repetition and apt to
elude appellate review,” and thus are excepted from the mootness doctrine.
In re M.B., 101 A.3d 124, 127 (Pa. Super. 2014) (citation omitted). There
is nothing presently preventing the juvenile court from again appointing
KidsVoice as the child’s medical guardian. To the contrary, the record
reflects that KidsVoice has a contract with the Allegheny County Court of
Common Pleas to accept medical guardianship appointments in dependency
cases when deemed necessary by the juvenile court. See N.T., 6/18/14, at
202. The GAL elicited testimony from the representative from Pediatric
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Specialty Care that KidsVoice would be notified if there were any concerns
about Mother’s medical decision-making, and the juvenile court’s statements
on the record at the hearing suggest that its decision to appoint Mother as
J.A.’s medical guardian was on a trial basis to see how she did in the role.
See N.T., 11/7/14, at 33, 101-02. In short, KidsVoice could be reappointed
as J.A.’s medical guardian at any time.
This issue is also apt to evade review. As this case illustrates, the
question of what is in a child’s best interest is a fluid concept, potentially
changing throughout the life of a dependency case. For example, the
juvenile court initially found that permitting Mother to make medical
decisions on J.A.’s behalf was contrary to the child’s best interest, but then
mere months later determined it was in the child’s best interest for Mother
to regain medical decision-making powers for the child. A change in status
can happen quickly for a medically needy child like J.A. Here, the
termination of KidsVoice as medical guardian occurred a little more than a
week after appellate oral argument in the first appeal.
Furthermore, our review of the record leads us to conclude that the
juvenile court’s decision to reverse itself on the applicability of Rule 1701 in
this matter is prone to repetition yet likely to evade review. In rendering its
decision on November 7, 2014, the juvenile court made no mention of its
prior contrary ruling finding that Rule 1701 precluded it from even hearing
testimony regarding the necessity of its appointment of KidsVoice as J.A.’s
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medical guardian. There is nothing to suggest the juvenile court realized
that it erred in its pervious application of Rule 1701, and therefore, there is
nothing to suggest that the juvenile court cannot or will not misapply the law
again in this case, only to reverse itself once appealed. Under these
circumstances, including J.A.’s ongoing medical needs, we cannot forego
reviewing this case. We therefore proceed to decide the merits of both
appeals.
We begin with the second appeal. Mother contends that the juvenile
court erred by prohibiting her counsel from presenting evidence to support
the return of medical decision-making rights for J.A. to Mother, as the court
failed to consider “the possibility that it would be in [J.A.’s] best interest for
[Mother] to resume making medical decisions as to [the child’s] care.”
Mother’s Brief (second appeal) at 12. The juvenile court found that Rule
1701 precluded it from revisiting the question of medical decision-making
rights for J.A. while the matter was on appeal. Juvenile Court Opinion,
8/29/14, at 5.14 The juvenile court further found, in the alternative, as
follows:
There was no compelling testimony that [M]other
was capable of caring for the child’s medical needs.
Even if the [c]ourt had not granted the supersedes
[sic], there was ample testimony that [M]other still
continues to be without the knowledge to care for
14
The juvenile court did not paginate its opinion. For ease of reference, we
have assigned numbers to the opinion beginning with the first page after the
cover page.
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J.A. Mother’s attempt to re-litigate the issue is
misplaced. Furthermore, [M]other still continues [sic]
faces major obstacles in caring for the child.
Additional testimony revealed that [M]other had not
remedied the situation which led to the appointment
of the GAL as medical decision maker. The assertion
that the shunt surgery is no longer medically
necessary does alleviate the inability or unwillingness
of [M]other to aid in the medical treatment of J.A.
Juvenile Court Opinion, 8/29/14, at 5-6.
The record reflects that counsel for CYF lodged an objection pursuant
to Rule 1701 during Mother’s questioning of Dr. Wolford on the necessity of
KidsVoice’s appointment as J.A.’s medical guardian. N.T., 6/18/14, at 85-
86. The juvenile court agreed with counsel for CYF, stating, “If your only
line of questioning here, [counsel for Mother,] is to give back the medical
decision-making to mom, then I’m going to sustain her objection and we are
going to move on because I’m not doing that. … Not while it’s on appeal[.]”
Id. at 88. Counsel for Mother then abandoned the line of questioning on
that basis. Id.As our discussion above makes clear, this ruling by the juvenile court
was erroneous.15 Although Mother had appealed the question of the
propriety of the juvenile court’s appointment of KidsVoice as J.A.’s medical
guardian, the juvenile court had the authority – indeed, the obligation – to
15
“Issues pertaining to jurisdiction are pure questions of law, and an
appellate court’s scope of review is plenary. Questions of law are subject to
a de novo standard of review.” In re G.D., 61 A.3d 1031, 1037 (Pa. Super.
2013) (internal citations omitted).
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continue entering orders in the child’s best interest even during the
pendency of an appeal. See supra, pp. 19-20. Although the juvenile court
alternatively found that there was no testimony presented at the June 18,
2014 hearing supporting a finding that returning medical decision-making
rights to Mother would be in the child’s best interest, it fails to recognize that
it precluded Mother from eliciting any such testimony. We therefore
conclude that the juvenile court erred.
Turning to the first appeal, Mother’s first three issues collectively
challenge the juvenile court’s authority to appoint KidsVoice as medical
guardian to a dependent child.16 Citing to the Rules of Juvenile Court
Procedure and the Juvenile Act, Mother asserts that the law does not permit
the juvenile court to make such an appointment, as it constituted an
improper delegation of the juvenile court’s duty to an organization that could
not have legal custody of the child. See Mother’s Brief (first appeal) at 12-
16, 19-22. According to Mother, based upon the facts of the case, only the
juvenile court or CYF could make medical decisions for the child. Id. at 20-
22; Mother’s Reply Brief at 2-5. We agree.
In its written opinion, the juvenile court solely relies on Rule of
Juvenile Court Procedure 1145, stating that the Rule permits the
appointment of “a medical decision maker if a parent is unavailable or
16
As these issues are interrelated, we address them together.
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unwilling to maintain such a role for the children.” Juvenile Court Opinion,
5/30/14, at 4.17 The court further made the following findings:
While [M]other has been visiting with the child and
[is] concerned with her condition, she had been
unwilling to cooperate with hospital staff with
regards to the child’s medical needs. She is unable to
fully understand the consequences of stalling the
surgery which is vital to J.A.’s recovery. She has
instead focused on unnecessary procedures, namely
cosmetic surgery in an attempt to minimize the
physical effects of the injuries. The doctors have
repeatedly explained that the child was in a
considerable amount of pain due to the swelling and
inflammation of her gallbladder. Mother again
advised medical staff that she wanted to “wait and
see” if her condition improved. J.A. is suffering from
a traumatic brain injury, and the medical staff at
Children’s Hospital has done the best they can to
keep the child comfortable. The [c]ourt, GAL, and
CYF have given mother ample opportunities to
cooperate and assist in her daughter’s medical
treatment. However, [M]other continues to be an
impediment to the child’s level of comfort as well as
her recovery.
Id. at 4-5.
The question before us requires that we interpret certain sections of
the Juvenile Act and the Rules of Juvenile Court Procedure. This presents a
question of law, for which our standard of review is de novo and our scope of
review is plenary. In re C.S.M.F., 89 A.3d 670, 675 (Pa. Super. 2014).
17
Once again, because the juvenile court did not paginate its opinion, we
have assigned numbers to the opinion beginning with the first page after the
cover page.
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The health, safety and welfare of a child involved in juvenile court
proceedings is one of the foremost considerations contemplated by the
Juvenile Act. See 42 Pa.C.S.A. § 6301(b)(1.1) (stating one of the purpose
of the Juvenile Act is “[t]o provide for the care, protection, safety and
wholesome mental and physical development of children coming within the
provisions of this chapter”). To that end, the Juvenile Act gives the legal
custodian of a child “the right to determine the nature of the care and
treatment of the child, including ordinary medical care and the right and
duty to provide for the care, protection, training, and education, and the
physical, mental, and moral welfare of the child.” 42 Pa.C.S.A. § 6357. 18 It
is left to the juvenile court to carve out the precise conditions and limitations
of the grant of legal custody, as well as to define the remaining rights and
duties of the child’s parent or guardian.19 Id.
18
We observe, as does Mother, that this definition of legal custody,
contained in the Juvenile Act, differs from the same definition provided in
the Child Custody Act, which defines legal custody as “[t]he right to make
major decisions on behalf of the child, including, but not limited to, medical,
religious and educational decisions.” 23 Pa.C.S.A. § 5322.
19
The term “guardian” is not defined by the Juvenile Act. It therefore has
the definition provided in section 1991 of the Statutory Construction Act: “A
fiduciary who legally has the care and management of the person, or the
estate, or both, of another under legal disability.” 1 Pa.C.S.A. § 1991
(stating that words or phrases used in a statute enacted on or after
September 1, 1937 “shall have the meanings given to them in this section”
unless the context of the statute “clearly indicates otherwise”). “Guardian”
is not to be confused with the child’s guardian ad litem, which section 1991
defines as “[a] fiduciary who is appointed to represent in legal proceedings
another under legal disability.” Id. Pursuant to the Juvenile Act, the
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If the child’s parent, guardian, or custodian20 will not consent to the
child’s receipt of medical treatment, the juvenile court “may order the child
to be examined at a suitable place by a physician or psychologist and may
also order medical or surgical treatment of a child who is suffering from a
serious physical condition or illness which in the opinion of a licensed
physician requires prompt treatment[.]” 42 Pa.C.S.A. § 6339(b). The
juvenile court may enter this order “even if the parent, guardian, or other
custodian has not been given notice of a hearing, is not available, or without
good cause informs the court of his refusal to consent to the treatment.” Id.
Therefore, it is clear in this case that the juvenile court could have ordered
the shunt and gallbladder surgery J.A. required in light of the medical
opinion of Dr. Wolford supporting the need for prompt treatment.
The Juvenile Act also specifically defines to whom the juvenile court
may grant legal custody of a dependent child, thus defining who (other than
the child’s parent or guardian or the juvenile court) may make medical
guardian ad litem must be an attorney and is appointed by the juvenile court
to represent the legal interests and the best interests of a child alleged to be
dependent pursuant to 42 Pa.C.S.A. § 6302(1), (2), (3), (4), or (10). 42
Pa.C.S.A. § 6311(a). Section 6311(b) of the Juvenile Act sets forth the
guardian ad litem’s powers and duties, which do not include making medical
decisions on the child’s behalf. See 42 Pa.C.S.A. § 6311(b).
20
The Juvenile Act defines “custodian” as “[a] person other than a parent or
legal guardian, who stands in loco parentis to the child, or a person to whom
legal custody of the child has been given by order of a court.” 42 Pa.C.S.A.
§ 6302.
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decisions on the child’s behalf. Section 6351(a)(2) limits the transfer of
temporary legal custody of an adjudicated child to:
(i) Any individual resident within or without this
Commonwealth, including any relative, who, after
study by the probation officer or other person or
agency designated by the court, is found by the
court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed
or otherwise authorized by law to receive and
provide care for the child.
(iii) A public agency authorized by law to receive and
provide care for the child.
42 Pa.C.S.A. § 6351(a)(ii).
Pursuant to these sections of the Juvenile Act, the Pennsylvania
Supreme Court promulgated Rule of Juvenile Court Procedure 1145, which
states, in relevant part: “After a petition [for dependency] has been filed, a
motion for examination and treatment of a child may be filed.” Pa.R.J.C.P.
1145(B). Nowhere in the plain language of the Rule is there any support for
the juvenile court’s conclusion that it can delegate medical decision-making
authority to a third party that is not entitled to legal custody of a dependent
child. See Juvenile Court Opinion, 5/30/14, at 4. To the contrary, the
statutory sections upon which Rule 1145 relies clearly delineate who may
make medical decisions for a dependent child. See 42 Pa.C.S.A. §§ 6339(b)
(the Juvenile Court), 6357 (the legal custodian); see also 42 Pa.C.S.A. §
6351(a)(2) (defining those authorized to be temporary legal custodian as
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including an individual qualified to receive and care for the child; an agency
or private organization licensed or authorized to receive and care for the
child; or a public agency authorized by law to receive and care for the child).
Neither CYF nor the GAL suggests that KidsVoice qualifies as a person
or entity to which the juvenile court may transfer temporary or permanent
legal custody.21 Instead, they point to the above-quoted purpose of the
Juvenile Act contained in section 6301(b)(1.1) and to the broad prescription
of section 6351 for juvenile courts to enter orders “best suited to the safety,
protection and physical, mental, and moral welfare of the child,” including
limitations on a parent’s right to custody of a child as the juvenile court sees
fit for the child’s protection, and the requirement that the juvenile court take
into consideration any “[e]vidence of conduct by the parent that places the
health, safety or welfare of the child at risk[.]” 42 Pa.C.S.A. § 6351(a)(1),
(f)(6), (f.2), (g);22 see CYF’s Brief at 17-18, 21-22; GAL’s Brief at 11-15.
21
KidsVoice is a nonprofit agency that represents nearly 3000 abused,
neglected and at-risk children in Allegheny County. KidsVoice does
yeoman’s work to help its clients, assisting them in many facets of their
lives. Teams of attorneys and child advocacy specialists work together to
advocate for KidsVoice’s clients both in dependency proceedings in court and
in the community to ensure their health, safety, welfare, and educational
needs are met, and to help them successfully transition out of the child
welfare system to live independently. KidsVoice further helps its clients
navigate social security matters and provides representation for clients who
receive minor criminal citations and in proceedings to expunge juvenile
delinquency records. See https://kidsvoice.org (last visited Jan. 5, 2015).
22
The 6351 subsections relied upon by CYF and/or the GAL in their
respective responsive briefs state:
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We note that the Supreme Court relied upon section 6301(b)(1.1) as
the legal predicate for Rule of Juvenile Court Procedure 1147, which
authorizes the appointment of an educational decision maker for a
dependent child. See Pa.R.J.C.P. 1147, Comment. In evaluating the
(a) General rule.--If the child is found to be a
dependent child the court may make any of the
following orders of disposition best suited to the
safety, protection and physical, mental, and moral
welfare of the child:
(1) Permit the child to remain with his parents,
guardian, or other custodian, subject to conditions
and limitations as the court prescribes, including
supervision as directed by the court for the
protection of the child.
* * *
(f) Matters to be determined at permanency
hearing.-- At each permanency hearing, a court
shall determine all of the following:
* * *
(6) Whether the child is safe.
* * *
(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 other disposition which is best suited to
the safety, protection and physical, mental and
moral welfare of the child.
42 Pa.C.S.A. § 6351 (a)(1), (f)(6), (f.2), (g).
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arguments advanced by the GAL and CYF, we find it significant that the
Supreme Court did not also adopt a rule expressly permitting the
appointment of a medical decision maker, or even reference section
6301(b)(1.1) in the comment to Rule 1145. Rule 1147 sets forth in copious
detail when the appointment of an educational decision maker is appropriate
and the duties, responsibilities and qualifications of an appointee. See
Pa.R.J.C.P. 1147.23 Although decisions regarding a child’s education are
23
Rule 1147 provides:
A. Generally. At any proceeding or upon motion,
the court shall appoint an educational decision maker
for the child if it determines that:
(1) the child has no guardian; or
(2) the court, after notice to the guardian and an
opportunity for the guardian to be heard, has
made a determination that it is in the child’s best
interest to limit the guardian’s right to make
decisions regarding the child’s education.
B. Notice of hearings. The educational decision
maker shall receive notice of all proceedings.
C. Duties and responsibilities. The educational
decision maker shall:
(1) make appropriate inquiries and take appropriate
actions to ensure that:
(a) issues concerning the child’s educational
stability are addressed;
(b) school discipline matters are addressed;
(c) the child is receiving appropriate education
that will allow the child to meet state standards,
including any necessary services concerning
special education in the least restrictive
environment, or remedial services;
(d) the child, who is sixteen years of age or older,
is receiving the necessary educational services to
transition to independent living;
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unquestionably important, medical decisions can have immediate life-or-
death consequences. It seems incongruous for the Supreme Court to
delineate precisely who may make educational decisions for a dependent
child, but then leave entirely to chance the criteria for the appointment of a
(e) the child, who is receiving services concerning
special education, is engaged in transition
planning with the school entity beginning no later
than the school year in which the child turns
fourteen; and
(f) the child, who is aging out of care within
ninety days, has a transition plan that addresses
the child’s educational needs, and if applicable,
the plan is coordinated with the child’s transition
planning concerning special education under the
Individuals with Disabilities Education Act.
(2) address the child’s educational needs by:
(a) meeting with the child at least once and as
often as necessary to make decisions regarding
education that are in the best interests of the
child;
(b) participating in special education and other
meetings, and making decisions regarding all
matters affecting the child’s educational needs in
a manner consistent with the child’s best
interests;
(c) making any specific recommendations to the
court relating to:
(i) the timeliness and appropriateness of the
child’s educational placement;
(ii) the timeliness and appropriateness of the
child’s transitional planning; and
(iii) services necessary to address the child’s
educational needs;
(d) appearing and testifying at court hearings
when necessary; and
(e) having knowledge and skills that ensure
adequate representation of the child.
Pa.R.J.C.P. 1147.
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medical decision maker if the law contemplated such a surrogate medical
decision maker.
Based on our analysis of the Juvenile Act, it is clear that the legislature
did not contemplate a surrogate medical decision maker since it specifically
identified the persons or entities capable of making medical decisions for
dependent children: the child’s parents, the child’s legal guardian, and the
child’s legal custodian. See 42 Pa.C.S.A. §§ 6339(b), 6357; see also
42 Pa.C.S.A. § 6351(a)(2). If any of those empowered to make medical
decisions on the child’s behalf refuse or fail to do so, the legislature made it
the role of the juvenile court itself to order that the child be examined by a
physician or psychologist or order the medical or surgical treatment of a
child who is suffering from a serious physical condition which in the opinion
of a licensed physician requires prompt attention. 42 Pa.C.S.A. § 6339(b).
As the parties recognize, this Court recently affirmed the appointment
of a temporary medical guardian in a dependency matter. See In re J.J.,
69 A.3d 724, 734-35 (Pa. Super. 2013). Relying, in large part, on the
reference in the comment to Rule 1145 to section 6357 of the Juvenile Act,
we affirmed the juvenile court’s temporary appointment of the children’s
relative caregivers as their medical and educational decision makers. Id. at
733, 734-35. Importantly, the father in In re J.J. did not challenge the
juvenile court’s authority to appoint a medical guardian, but raised the issue
of whether the juvenile court erred by appointing an educational and medical
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decision maker for his children absent proof that he was unwilling or
unavailable to make those decisions for his children. Id. at 728, 732. Thus,
In re J.J. has no precedential value on the question before us in the case at
bar.
Moreover, a critical distinction between In re J.J. and the case before
us is that the relative caregivers appointed as medical guardians for the
children in In re J.J. lawfully qualified to be appointed as temporary legal
custodians of the children pursuant to section 6351(a)(2)(i) of the Juvenile
Act. See id. at 733. The juvenile court therefore could properly authorize
them to make medical decisions for the children pursuant to section 6357 of
the Juvenile Act. See 42 Pa.C.S.A. § 6357.
As stated above, the Juvenile Act states that the legal custodian is the
only person or entity, apart from the juvenile court or the child’s parent or
guardian, who may make medical decisions for a dependent child. See 42
Pa.C.S.A. §§ 6351(a)(2), 6339(b), 6357. The Rules of Juvenile Court
Procedure follow accordingly. See Pa.R.J.C.P. 1145, Comment. In the
absence of a legislative enactment stating otherwise, no person or entity
outside of that defined category may make medical decisions on behalf of a
dependent child. See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute
are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.”); 1 Pa.C.S.A. § 1933 (stating that if
a general provision of a statute is in conflict with a specific provision and
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effect cannot be given to both, the specific provision prevails and must be
construed as an exception to the general provision); see also Pa.R.J.C.P.
1101(D) (stating that the Rules of Juvenile Court Procedure “shall be
construed in consonance with the rules of statutory construction”).
In appointing KidsVoice as J.A.’s medical guardian, the juvenile court
undoubtedly relied on the reputation and expertise of KidsVoice. 24 We do
not deny KidsVoice’s reputation or its expertise; because of its mission, it
may be that KidsVoice (and agencies like it throughout Pennsylvania) is in all
other respects an appropriate entity to make medical decisions for a
dependent child. The Juvenile Act and the Rules of Juvenile Court Procedure
simply do not permit its appointment as a child’s medical guardian.
The juvenile court could have ordered that the child undergo the
recommended procedures. See 42 Pa.C.S.A. § 6339(b). CYF or the GAL
could have brought that motion before the juvenile court at any time. See
Pa.R.J.C.P. 1145(B). Nonetheless, the GAL’s concern is well founded that in
a case like this, where the child’s medical needs were significant, ongoing,
and changing regularly, seeking the juvenile court’s approval every time
consent for J.A.’s medical treatment was necessary could have become
“untenable and a significant detriment to J.A.’s treatment and recovery[.]”
GAL’s Brief at 15. The inability to appoint KidsVoice as the child’s medical
guardian, however, does not leave the juvenile court as the only entity that
24
See supra n.21.
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has the authority under the law to consent to medical treatment for a
dependent child if the parent or guardian cannot or will not do so.
CYF, unlike KidsVoice, qualifies as an agency entitled to act as the
child’s temporary legal custodian. See 42 Pa.C.S.A. § 6351(a)(2)(iii); see
also 62 Pa.C.S.A. § 2305 (relating to the powers and duties of local
authorities as to children); 42 Pa.C.S.A. § 6301 (indicating that the county
children and youth agency is the local authority set forth in 62 Pa.C.S.A.
§ 2305). In fact, CYF was J.A.’s legal custodian in this case. See
Permanency Review Order (Non-Placement), 11/27/13, at 2; supra p. 5. As
we have explained, pursuant to section 6357 of the Juvenile Act, the legal
custodian has “the right to determine the nature of the care and treatment
of the child, including ordinary medical care and the right and duty to
provide for the care, protection, … and the physical, … welfare of the child.”
42 Pa.C.S.A. § 6357. The juvenile court must determine the “conditions and
limitations” of the grant of legal custody and “the remaining rights and
duties of the parents or guardian of the child.” Id. Therefore, under the
law, the juvenile court could have entered an order permitting CYF to
consent to all medical treatment for J.A.
Both Mother and the GAL agree that the law permits CYF to make all
medical decisions for a dependent child in its legal custody. Mother’s Reply
Brief at 4-5; GAL’s Brief at 24. The GAL indicates, however, that it is CYF’s
“longstanding practice” to provide consent only for routine medical care.
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GAL’s Brief at 24-25. The record supports this assertion. See Emergency
Motion to Appoint Medical Guardian, 3/26/14, ¶ 7 (stating that “[CYF] is in
agreement with the appointment of KidsVoice as medical guardian to
[J.A.]”); N.T., 3/20/14, at 33-34 (CYF caseworker testifying that “in the
event that [Mother] does not consent, if [J.A.] needs these surgeries, then
[CYF] would … ask for a medical educational [sic] guardian.”). In its
responsive brief on appeal, CYF denies that it could consent to the surgical
procedures recommended for J.A. based on section 3130.91 of the Public
Welfare Code, as the procedures constituted “nonroutine treatment” and
were beyond CYF’s authority to consent. CYF’s Brief at 22-23. In so
concluding, CYS ignores or misinterprets section 6357 of the Juvenile Act.
Section 3130.91 of the Public Welfare Code permits CYF to make all
“routine” medical decisions for a child in its legal custody.25 55 Pa. Code §
3130.91(2)(i). CYF typically must obtain the consent of either the child’s
parent or the juvenile court (if the parent is unavailable or refuses to
consent) prior to the child undergoing “nonroutine” treatment.26 See 55 Pa.
25“Examples of routine treatment include well baby visits, immunizations
and treatment for ordinary illnesses.” 55 Pa. Code § 3130.91(1)(i).
26
“Examples of nonroutine treatment include nonemergency surgery,
cosmetic surgery and experimental procedures or treatment.” 55 Pa. Code §
3130.91(1)(ii). For emergency treatment, the Code directs CYF to
“immediately take the child to a physician for treatment. It is not necessary
to obtain or provide consent when, in the physician’s judgment, an attempt
to secure consent would result in delay of treatment which would increase
the risk to the child’s life or health.” 55 Pa. Code § 3130.91(3).
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Code § 3130.91(2)(ii), (iii). As already noted, the Juvenile Act permits the
juvenile court to empower the legal custodian (here, CYF) to make all
medical decisions – both routine and nonroutine – for a dependent child.
See 42 Pa.C.S.A. § 6357. Although we see no inherent conflict between the
Code and the Juvenile Act, to the extent that section 3130.91 of the Public
Welfare Code conflicts with the Juvenile Act, the statutory enactment
prevails. See In re Lowry, 484 A.2d at 386-87 (finding that unless acting
“in the role of adjudicator reviewing the action of an administrative agency,”
the juvenile court is not bound by Public Welfare Code, but must instead
follow the Juvenile Act). As such, if CYF, the GAL, and/or the juvenile court
are concerned that Mother’s unwillingness to consent to necessary medical
treatments for J.A. will continue and that seeking the juvenile court’s
approval for every necessary medical intervention is not in the child’s best
interest, the law permits the juvenile court to grant CYF, as temporary legal
custodian, the authority to make all medical decisions for the child. The
juvenile court’s appointment of KidsVoice as J.A.’s medical guardian,
however well intentioned, is unsupportable under the law.
Next, Mother challenges the juvenile court’s failure to conduct a
hearing prior to appointing a medical guardian, asserting that this
constituted a deprivation without due process protections. Mother’s Brief
(first appeal) at 16-18. Our review of the record reveals that the March 27,
2014 argument on KidsVoice’s motion, Mother did not request a hearing,
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medical testimony in support of the motion, or a continuance to call her own
witnesses in opposition to the motion. The first time she raised this
contention was at the June 18, 2014 hearing. See N.T., 6/18/14, at 87.
In order to preserve an issue for appellate review, a
party must make a timely and specific objection at
the appropriate stage of the proceedings before the
trial court. Failure to timely object to a basic and
fundamental error will result in waiver of that issue.
On appeal[,] the Superior Court will not consider a
claim which was not called to the trial court’s
attention at a time when any error committed could
have been corrected. In this jurisdiction ... one must
object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to
afford the jurist hearing the case the first occasion to
remedy the wrong and possibly avoid an
unnecessary appeal to complain of the matter.
In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (citation omitted). We
therefore find this claim waived.
In summary, although the issues raised on appeal are technically
moot, they are capable of repetition yet likely to evade review, thus
permitting this Court to reach the merits of both appeals. We further
conclude, based on the facts of the case, that the juvenile court erred by
finding that Rule of Appellate Procedure 1701 precluded it from revisiting the
question of the appointment of a medical guardian for the child while the
question of the propriety of the appointment was pending on appeal. Lastly,
we are compelled to find that the juvenile court erred by appointing
KidsVoice as J.A.’s medical guardian, as its appointment is unsupportable
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under the Juvenile Act and/or the Rules of Juvenile Court Procedure. As the
juvenile court’s November 7, 2014 order only terminated KidsVoice’s
appointment, we vacate the March 27, 2014 order.
March 27, 2014 order vacated. Petition for Leave to File Post-
Submission Communication denied. Motion to Dismiss for Mootness denied.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2015
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