In the Interest of: S.U., a Minor ( 2019 )

J-E02009-18
2019 Pa. Super. 48
IN THE INTEREST OF: S.U., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.U., FATHER :
:
:
:
: No. 888 MDA 2017
Appeal from the Orders Entered May 4, 2017
In the Court of Common Pleas of Lancaster County Juvenile Division at
No(s): CP-36-DP-0000083-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
McLAUGHLIN, J.
OPINION BY NICHOLS, J.: FILED FEBRUARY 21, 2019
R.U. (Father) appeals1 the order adjudicating his minor son, S.U.
(Child), dependent, maintaining Child’s placement in foster care, setting
Child’s permanency goal to adoption, and terminating Father’s visitation.
Father also appeals a separate order entered the same day, which found
aggravated circumstances and directed that the Lancaster County Children
and Youth Social Service Agency (the Agency) make no efforts to reunify Child
with Father.2 We affirm.
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1 K.U. (Mother) did not separately appeal, but filed an “appellee’s” brief
supporting Father’s appeal.
2 We discourage the practice of filing one notice of appeal from two final
orders, but decline to quash. See generally Gen. Elec. Credit Corp. v.
Aetna Cas. & Sur. Co., 263 A.2d 448, 452-53 (Pa. 1970) (holding “that a
single appeal is incapable of bringing on for review more than one final order,
judgment or decree” except when circumstances permit appropriate appellate
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The relevant factual and procedural history of this case follows. On April
12, 2017, the Agency filed a dependency petition and a petition for temporary
custody of Child. In its dependency petition, the Agency stated that Father
and Mother (collectively, Parents) have a protracted history with the Agency.
See Dependency Pet., 4/12/17, at Allegations of Dependency ¶ F.
Specifically, the Agency asserted that two of Parents’ younger sons, J.U.1 and
J.U.2, were already dependent. Id. On May 18, 2016, Parents voluntarily
relinquished their parental rights to J.U.1, and their parental rights to J.U.2
were terminated involuntarily on March 28, 2017. Id.
The Agency further stated that it received a referral regarding Child on
March 27, 2017, which alleged that Child suffered from poor hygiene and that
Mother was using illegal substances, including cocaine. Id. at ¶ A. Following
an investigation, the Agency discovered that Child was living with Parents in
a one-bedroom apartment “with a mattress that the family share[d].” Id. at
¶ D. On April 5, 2017, Courtney Ross, a caseworker for the Agency, made an
unannounced home visit. Id. at ¶ C. Parents refused a random drug screen.
Id. On a subsequent unannounced visit, on April 7, 2017, Father submitted
to a drug screen and tested negative. Id. at ¶ D. Mother tested positive for
THC3 and cocaine. Id.
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review); Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super.
2014).
3 Tetrahydrocannabinol.
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On April 12, 2017, the Honorable Jay J. Hoberg entered an order
granting the petition for temporary custody and placing Child in foster care.
See Order, 4/12/17. The order scheduled a hearing for April 13, 2017, and
appointed H. Allison Wright, Esq., to represent Father, David Peiffer, Esq., to
represent Mother, and Jeffrey Gonick, Esq., to represent Child as guardian ad
litem (GAL). Id. Attached to the order was a notice, which provided, in
relevant part, the following:
THE LAWYER APPOINTED FOR YOU WILL REPRESENT YOU,
WITHOUT CHARGE, ONLY AT THE FIRST SCHEDULED HEARING.
THIS LAWYER HAS BEEN PROVIDED A COPY OF THIS PETITION
AND WILL BE PRESENT AT THE HEARING. IT IS YOUR
RESPONSIBILITY TO CONTACT THE LAWYER PRIOR TO THE
HEARING.
IF YOU WISH TO HAVE A LAWYER AFTER THE FIRST HEARING,
AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE[]
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Notice, 4/12/17 (emphasis in original). The notice further provided a list of
documents Father needed to provide to obtain a court-appointed attorney.
See id.
On April 13, 2017, the court continued the hearing to April 18, 2017,
due to the unavailability of the GAL and counsel for Parents. We have included
below the order and notice, which indicates that Father was served
individually.
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On April 18, 2017, Judge Hoberg conducted the shelter care hearing.
Due to Parents’ failure to attend the hearing, the court permitted counsel for
Parents to withdraw. On May 1, 2017, Judge Hoberg entered a shelter care
order finding it was not in the best interest of Child to return to the Parents’
home, legal and physical custody should remain with the Agency, and
visitation should continue as scheduled, subject to a negative drug screen.
See Shelter Care Order, 5/1/17. The order included an attachment, which
notified Parents that their respective attorneys had withdrawn their
appearances due to their failure to appear at the hearing. Id. Specifically,
the attachment included a notation indicating that Father was served
individually. Id. The attachment further directed Parents to make an
appointment to re-qualify for counsel for their next scheduled hearing if they
wished to have counsel represent them at said hearing. Id. We have included
the order and attachment below.
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On May 2, 2017, the Honorable Thomas B. Sponaugle conducted a
dependency hearing. Parents failed to attend, and no counsel appeared on
Parents’ behalf. At the hearing, Ross testified as to the averments in the
dependency petition. See N.T., 5/2/17, at 5-16. Ross further testified that
the “Agency continue[d] to have concerns with substance abuse as this has
been an ongoing issue for the family,” Child’s hygiene, and Parents’ inability
to provide for Child’s needs or maintain a stable environment. Id. at 8. She
stated that there were also some concerns that Child could have a mental
health issue, but that Parents did not address those concerns. Id. at 11-12.
Ross stated that there were aggravating circumstances due to Parents’
parental rights being involuntarily terminated as to J.U.2. Id. at 5, 9. She
explained that Parents were given a child permanency plan as to J.U.1 and
J.U.2 and that they did not complete the objectives. Id. 8-9. She added that
the concerns that led to the placement of J.U.1 and J.U.2 had not been
alleviated. Id. at 11. Ross indicated that she attempted to discuss the
permanency plan for Child with Parents but could not reach them by phone or
in person at their apartment. Id. at 9. She testified that she was able to
speak with Parents on May 1, 2017, the day before the hearing, when she
personally served them with the notice of the hearing and they indicated that
“they would come early to discuss the case with me.” Id. at 9-10.
Ross further testified that during the time of the Agency’s involvement
with J.U.1 and J.U.2, Parents told the Agency that Child lived with maternal
grandmother. Id. at 10. She stated that had the Agency known that Child
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was actually residing with Parents it would have sought to place Child at the
same time as it placed J.U.1 and J.U.2. Id. at 11.
Finally, Ross stated that Child is adjusting well in the new resource home
with maternal aunt. Id. at 15. Child is very excited to have his own bed and
his own space. Id. Child “also had indicated to me that he did not feel safe
going outside of where he was living with [P]arents, so he enjoys being able
to play in the driveway and being able to play in a yard.” Id. Currently, Child
is placed with his two youngest siblings and has visitation with the rest of his
siblings as maternal grandmother and aunt have a close relationship. Id. at
14.
On May 4, 2017, Judge Sponaugle entered an order adjudicating Child
dependent, maintaining his placement in foster care, setting his permanency
goal as adoption, and terminating Father’s visitation.4 See Order,
Adjudication and Disposition, 5/4/17. Judge Sponaugle entered a separate
order that same day, finding aggravated circumstances due to the involuntary
termination of Parents’ parental rights to J.U.2., and directing that no efforts
be made to reunify the family. See Order, Aggravated Circumstances, 5/4/17.
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4 The order set a concurrent goal of placement with a permanent legal
custodian. Order, Adjudication and Disposition, 5/4/17.
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Father obtained court-appointed counsel5 and, on June 1, 2017, filed a
single timely notice of appeal from both orders and a Pa.R.A.P. 1925(a)(2)(i)
statement.
This Court granted en banc consideration in this matter to address
whether the trial court properly notified Father of his right to representation
during a dependency hearing and withdrew this Court’s prior memorandum.
See Order, 2/12/18. Accordingly, we address this issue before resolving the
merits of Father’s underlying appeal.
The Agency claims that Section 6337 of the Juvenile Act requires the
trial court to colloquy a party and appoint counsel, if the party appears at
a hearing. See Agency’s Brief at Ex. A, at 1. The Agency further claims that
Rule 1151(E) of the Pennsylvania Rules of Juvenile Court Proceedings requires
that the trial court appoint counsel to a party if counsel is requested. Id.
The Agency reasons that “[i]t is evident from the text of the applicable
statu[t]es and rules that a party must appear at the hearing to trigger the
court’s affirmative duty to notify the party of their right to counsel and colloquy
the party as to whether they wish to be represented.” Id. at Ex. A, at 2.
Finally, the Agency claims that the “panel’s decision negatively impacts
public policy and frustrates the purpose of federal and state statutes dictating
timely permanency for children in foster care.” Id. at Ex. A, at 5-6. It states
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5 The court re-appointed H. Allison Wright, Esq., to represent Father on
appeal.
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that it is common that parents fail to appear for hearings despite receiving
proper notice. Id. Further, the Agency asserts that requiring the court to
continue hearings until the parents appear in person and then inquire into
their desire to have counsel will significantly delay the completion of six-month
permanency hearings required by 42 Pa.C.S. § 6351(e).6 Id.
Section 6337 of the Juvenile Act recognizes that “there exists in parents
a right to counsel in dependency cases,” In re N.B., 817 A.2d 530, 535 (Pa.
Super. 2003) (citation omitted), and provides:
[A] party is entitled to representation by legal counsel at all stages
of any proceedings under this chapter and if he is without financial
resources or otherwise unable to employ counsel, to have the
court provide counsel for him. If a party other than a child
appears at a hearing without counsel the court shall ascertain
whether he knows of his right thereto and to be provided with
counsel by the court if applicable. The court may continue the
proceeding to enable a party to obtain counsel.
42 Pa.C.S. § 6337.
Pennsylvania Rules of Juvenile Court Procedure address the procedural
process in exercising the right to counsel. In construing the Pennsylvania
Rules of Juvenile Court Procedure, the object of their interpretation is “to
effectuate the purposes stated in the Juvenile Act, 42 Pa.C.S. § 6301(b).”7
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6Father did not file a supplemental brief addressing the issue for which this
Court granted reargument.
7 Section 6301(b) sets forth the following purposes:
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Pa.R.J.C.P. 1101(C). Further, these rules “shall be construed to secure
uniformity and simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.” Pa.R.J.C.P. 1101(B). Rule
1101(D) provides that “[t]o the extent practicable, these rules shall be
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(1) To preserve the unity of the family whenever possible or to
provide another alternative permanent family when the unity of
the family cannot be maintained.
(1.1) To provide for the care, protection, safety and wholesome
mental and physical development of children coming within the
provisions of this chapter.
***
(3) To achieve the foregoing purposes in a family environment
whenever possible, separating the child from parents only when
necessary for his welfare, safety or health or in the interests of
public safety, by doing all of the following:
(i) employing evidence-based practices whenever possible and,
in the case of a delinquent child, by using the least restrictive
intervention that is consistent with the protection of the
community, the imposition of accountability for offenses
committed and the rehabilitation, supervision and treatment
needs of the child; and
(ii) imposing confinement only if necessary and for the
minimum amount of time that is consistent with the purposes
under paragraphs (1), (1.1) and (2).
(4) To provide means through which the provisions of this chapter
are executed and enforced and in which the parties are assured a
fair hearing and their constitutional and other legal rights
recognized and enforced.
42 Pa.C.S. § 6301(b).
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construed in consonance with the rules of statutory construction.” Pa.R.J.C.P.
1101(D).8
With those principles in mind, we state Pennsylvania Rule of Juvenile
Court Procedure 1151(E):
E. Counsel for other parties. If counsel does not enter an
appearance for a party, the court shall inform the party of the
right to counsel prior to any proceeding. If counsel is requested
by a party in any case, the court shall assign counsel for the
party if the party is without financial resources or otherwise unable
to employ counsel. Counsel shall be appointed prior to the first
court proceeding.
Pa.R.J.C.P. 1151(E) (emphases added). The comment to Rule 1151(E) states:
Pursuant to paragraph (E), the court is to inform all parties of the
right to counsel if they appear at a hearing without counsel.
If a party is without financial resources or otherwise unable to
employ counsel, the court is to appoint counsel prior to the
proceeding. Because of the nature of the proceedings, it is
extremely important that every “guardian” has an attorney.
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8 Regarding statutory construction, the Pennsylvania Supreme Court has
stated that
the plain language of a statute is in general the best indication of
the legislative intent that gave rise to the statute. When the
language is clear, explicit, and free from any ambiguity, we
discern intent from the language alone, and not from the
arguments based on legislative history or “spirit” of the statute.
We must construe words and phrases in the statute according to
their common and approved usage. We also must construe a
statute in such a way as to give effect to all its provisions, if
possible, thereby avoiding the need to label any provision as mere
surplusage.
C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citation omitted).
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Therefore, the court is to encourage the child’s guardian to obtain
counsel. Pursuant to [Pa.R.J.C.P.] 1120, a guardian is any parent,
custodian, or other person who has legal custody of a child, or
person designated by the court to be a temporary guardian for
purposes of a proceeding.
Pa.R.J.C.P. 1151 cmt. (emphasis added).9
Rule 1152(B), which discusses waiver of counsel, provides in relevant
part that “a party may waive the right to counsel if: (1) the waiver is
knowingly, intelligently, and voluntarily made; and (2) the court conducts a
colloquy with the party on the record.”10 Pa.R.J.C.P. 1152(B).
In sum, it is undisputed that Rule 1151(E) mandates that a parent be
appointed counsel prior to the first court proceeding. Pa.R.J.C.P. 1151(E).
The remainder of the Rule centers on the notice of a party’s right to counsel
where counsel has not entered an appearance on that party’s behalf. Id.
Where counsel has not entered an appearance or where a party appears at a
hearing unrepresented, the court must provide notice to the party of his or
her right to counsel. Id. Notably, nowhere in Rule 1151(E) does it require
that proper notice must be given in person. See id.
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9 “We are cognizant that explanatory comments express the opinion of the
rules drafting committee and therefore are not binding.” Estate of Paterno
v. National Collegiate Athletic Assoc., 168 A.3d 187, 200 n.13 (Pa. Super.
2017) (citation omitted).
10 We note that Rule 1152(B) governs waiver of counsel, in which a party
“voluntary[il]y relinquish[es] a legal right or advantage.” See Waiver, Black’s
Law Dictionary, 1717 (9th ed. 2009). It does not concern situations when a
party fails to exercise their right to counsel, e.g., attending a hearing and
applying for counsel, as in this case.
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Here, the court appointed counsel for Father prior to the first hearing as
mandated by Rule 1151(E). See Order, 4/12/17; see also Pa.R.J.C.P.
1101(E). The notice attached to the April 12, 2017 order notified Father that
counsel had been appointed and that it was Father’s responsibility to contact
counsel. Notice, 4/12/17. On April 13, 2017, when the trial court rescheduled
the hearing, the court notified Father a second time of his right to counsel,
and explained that Father was required to contact and cooperate with the
attorney and that failure to do so would result in the appointment being
vacated. Notice of Hr’g, 4/13/17.
Prior to the scheduled May 2, 2017 dependency hearing, as no counsel
had entered an appearance on Father’s behalf, the court sent a third notice to
Father pursuant to Rule 1151(E). See Shelter Care Order, 5/1/17; see also
Pa.R.J.C.P. 1151(E). The court notified Father that counsel had withdrawn
her appearance due to Father’s failure to appear at the April 18, 2017 shelter
care hearing. Shelter Care Order, 5/1/17. The court further notified Father
that should he wish to be represented by counsel, he had to make an
appointment and re-qualify for counsel.11 Id. Accordingly, we find that the
court complied with Rule 1151(E) by appointing counsel prior to the first court
proceeding and by providing notice to Father of his right to representation.
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11At the May 2, 2017 dependency hearing, Ross testified that in addition to
the written notice, she gave Parents oral notice of the hearing. See N.T.,
5/2/17, at 8, 10.
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See Pa.R.J.C.P. 1151(E); see also Notice, 4/12/17, Notice of Hr’g, 4/13/17,
Shelter Care Order, 5/1/17.
Moreover, we must construe Rule 1151(E) in accordance with the
Pennsylvania Rules of Juvenile Court Procedure and statutes setting forth the
time periods for conducting hearings. Rule 1404(A) provides that “[i]f a child
has been removed from the home, an adjudicatory hearing shall be held within
ten days of the filing of the petition.” Pa.R.J.C.P. 1404(A). Rule 1409(B)
states that “[i]f a child is removed from the home, the court shall enter an
adjudication of dependency within seven days of the adjudicatory hearing . .
. .” Pa.R.J.C.P. 1409(B). Pursuant to Rule 1510, “[i]f the child has been
removed from the home, the dispositional hearing shall be held no later than
twenty days after the findings on the petition . . . .” Pa.R.J.C.P. 1510. Further,
42 Pa.C.S. § 6351(e) governing permanency hearings provides, in pertinent
part, that the court shall conduct permanency hearings “[w]ithin six months
of[] the date of the child’s removal from the child’s parent, guardian or
custodian” or “[w]ithin 30 days of[] an adjudication of dependency at which
the court determined that aggravated circumstances exist . . . .” 42 Pa.C.S.
§ 6351(e)(3).
These rules clearly emphasize the urgency of deciding these cases
promptly to advance the best interests of the minor. See Pa.R.J.C.P. 1404(A),
1409(B), 1510; see also 42 Pa.C.S. § 6351(e)(3). Continuing hearings until
a parent decides to be present at a hearing simply goes against the Rules of
Juvenile Court Procedure, which mandate that these rules be construed to
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eliminate unjustifiable delay. See Pa.R.J.C.P. 1101(B). Permitting a parent
an indefinite period of time to appear in court would render the rules governing
prompt hearings meaningless and would force a child to remain in a state of
limbo until his or her parent decides to make an appearance in court. See
Pa.R.J.C.P. 1404(A), 1409(B), 1510; see also 42 Pa.C.S. § 6351(e)(3).
We agree with the Agency that the Rules of Juvenile Court Procedure do
not support the proposition that a court must wait indefinitely until the parents
of a child decide to appear in court. In the instant case, the provisions of Rule
1152, governing the waiver of counsel do not apply because the central inquiry
on these facts is not waiver, but whether Father was aware of the hearing,
and of his right to counsel at the hearing; and whether he applied for
counsel.12 Father does not dispute that he received notice of the dependency
hearing.13 In fact, there is sufficient evidence of record that Father was aware
of the hearing. See Shelter Care Order, 5/1/17; see also N.T., 5/2/17, at 9-
10. Further, the record established that the notice of the hearing provided
Father with information as to the office he was required to contact to re-qualify
for counsel. See Shelter Care Order, 5/1/17. Father, however, despite
receiving proper notice and indicating that he would come prior to the hearing
to discuss the case with Ross, see N.T., 5/2/17, at 10, voluntarily chose not
to attend the hearing or re-apply for counsel.
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12 See supra note 10.
13 We note that Father does not dispute receiving notice to any of the
proceedings in this matter.
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Accordingly, we hold that where a parent has been given proper notice
of an adjudicatory hearing and of the parent’s right to counsel at such hearing,
yet fails to attend or apply for counsel, the juvenile court need not delay the
proceedings further to conduct an in-person colloquy of a parent’s right to
counsel. See Pa.R.J.C.P. 1101(B), 1151(E); cf. Pa.R.J.C.P. 1128 (providing
that “[t]he court may proceed in the absence of a party upon good cause
shown”). Therefore, the court did not err in failing to conduct an in-person
colloquy regarding Father’s right to counsel.
We now address Father’s remaining claims. Father raises the following
issues on appeal, which we have reordered below:
1. Whether the [trial c]ourt erred in concluding that the evidence
clearly and convincingly established that [C]hild is a dependent
child pursuant to the Pennsylvania Juvenile Act at 42 Pa.C.S. §
6302[.]
2. Whether the [trial c]ourt erred in concluding that it is in the
best interest of [C]hild to be removed from the home of Mother
and Father[.]
3. Whether the [trial c]ourt erred in terminating visitation for
Father[.]
4. Whether Father should be granted another hearing to
determine whether he should be granted visitation of [C]hild
and whether he should be given a [c]hild [p]ermanency [p]lan
with the goal of reunification with [C]hild[.]
5. Whether the [trial c]ourt erred in entering an Aggravated
Circumstances Order against Father and concluding that no
efforts should be made to preserve the family and reunify
[C]hild with Father because his parental rights had been
involuntarily terminated with respect to another child[.]
Father’s Brief at 10.
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Father first claims that there was no testimony regarding his substance
abuse. Id. at 17. He further claims that he tested negative for illegal
substances. Id. He argues that Ross’s testimony that Child “looked like he
was wearing unclean clothes and ‘presented with an odor’” should not be a
basis for finding Child dependent. Id. at 18. Father notes that there were no
allegations that Child was not attending school on a regular basis, that Child
had been abused, or that Father posed a risk to Child’s health, safety, or
welfare. Id. at 18-19. Father contends that Parents and Child sharing a
double mattress on the floor of an unclean apartment alone does not establish
Child’s dependency. Id. at 19. Instead of taking custody, he argues that the
Agency should have presented Parents with a family service plan. Id.14
In dependency cases, our standard of review requires us to “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record, but does not require [us] to accept the lower court’s
inferences or conclusions of law. Accordingly, we review for an abuse of
discretion.” In re E.B., 83 A.3d 426, 430 (Pa. Super. 2013) (citing In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)).
Section 6302(1) of the Juvenile Act defines a “dependent child” as one
who
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
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14Mother’s arguments in her brief are duplicative of Father’s. See Appellee,
K.U., Mother’s Brief at 1-4.
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that there is a lack of proper parental care or control may be based
upon evidence of conduct by the parent, guardian or other
custodian that places the health, safety or welfare of the child at
risk, including evidence of the parent’s, guardian’s or other
custodian’s use of alcohol or a controlled substance that places
the health, safety or welfare of the child at risk[.]
42 Pa.C.S. § 6302(1). Further, we have explained that “[t]he 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.” E.B., 83 A.3d at 431 (citation
omitted). “The burden of proof in a dependency proceeding is on the
petitioner to demonstrate by clear and convincing evidence that a child meets
that statutory definition of dependency.” Id. (citation omitted).
Here, the juvenile court found clear and convincing evidence that Child
should be adjudicated dependent, and a review of the record supports this
finding. See N.T., 5/2/17, at 16; Order, Adjudication and Disposition, 5/4/17.
Child consistently attended school with an odor and unclean clothes. See
N.T., 5/2/17, at 8. Child was sleeping on the floor, on a double mattress,
which he shared with Parents. Id. The apartment was unclean and Child felt
unsafe going outside. Id. at 8, 15. The Agency had a continuing concern with
substance abuse in the family. Id. at 8. Although Father’s drug screen was
negative, Mother, who lives in the residence, tested positive.15 Id. at 7-8.
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15It is noteworthy that Father refused a random drug screen on a prior
unannounced home visit. See N.T., 5/2/17, at 6.
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The Agency also had concerns with Child’s mental health and behavior, which
Parents never addressed. Id. at 11-12.
Further, at all times while the Agency was involved with Parents as to
J.U.1 and J.U.2, Parents indicated that Child resided with maternal
grandmother. Id. at 10. Due to this false representation, the Agency did not
seek placement of Child at that time. Id. at 11. The Agency testified that
Parents did not complete the objectives of the permanency plan as to J.U.1
and J.U.2 and that the concerns leading to the placement and termination of
the other children had not been alleviated. Id. Child is one of seven children,
and all of his siblings have been in foster care since their births or for the
majority of their lives. Id. at 5, 13.
Moreover, Father has shown a complete lack of interest for Child. See
id. He failed to visit Child since Child’s placement and did not attend the
shelter care hearing, nor the dependency hearing. See id. Father also did
not present any evidence to rebut the allegations made in the petition or the
testimony presented at the dependency hearing. See Trial Ct. Op., 6/12/17,
at 3 (unpaginated).
The trial court found that the evidence presented, in addition to Parents’
history with the Agency, makes it evident that Father is unable to provide for
Child’s needs or maintain a stable environment. See id. at 8; see also In re
J.J., 69 A.3d 724, 731 (Pa. Super. 2013) (finding children were dependent
where Father did not rebut the averments in the dependency petition and
demonstrated a lack of commitment by not attending the dependency hearing
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or visiting children). Therefore, the juvenile court did not abuse its discretion
in finding there is clear and convincing evidence that Child is without proper
parental care and control, as well as holding such care and control are not
immediately available. See E.B., 83 A.3d at 431.
In Father’s second, third, and fourth issues, he argues that the court
erred in concluding that it was in the best interest of Child to maintain Child’s
placement in foster care. Father’s Brief at 20-21. He claims that because he
did not attend the hearing, the court did not know how long Child had been
residing with Parents, whether there was a bond between Child and Parents,
or what impact Child would suffer should visitation be terminated. Id. Father
maintains that rather than “summarily” terminating his visitation with Child,
the court could have “scheduled the minimum bi-weekly visits on the condition
that Father would need to call the Agency in advance and confirm each visit.
The [c]ourt could also have required both parents to submit to drug screens
before each visit.” Id. at 23. Father asks that we vacate the trial court’s
order or, in the alternative, grant him a new hearing to “give him the
opportunity to testify and state his position in regards to the allegations” made
by the Agency in its dependency petition. Id.
As discussed above, Father received written notice of the court
proceedings at least three times. See Notice, 4/12/17; Notice of Hearing,
4/13/17; Shelter Care Order, 5/1/17. The Agency testified that it also gave
Father oral notice of the proceedings. N.T., 5/2/17, at 3, 10. Despite multiple
notices, Father chose not to attend and “state his position.”
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As for visitation, the Agency attempted to schedule visits numerous
times, but Father failed to visit Child or contact the Agency to explain why he
could not visit Child. Id. at 13.
Since removal from the home, Child has been adjusting well. Id. at 15.
He has his own bed and space, is not afraid to go outside and play, lives with
his two youngest siblings, and has constant visitation with his older siblings.
Id at 14. Child is being provided with a psychiatric evaluation, before and
after school programs, and has dental and physical exams scheduled. Id. at
12-13. Therefore, we conclude that the juvenile court did not abuse its
discretion in finding that it was in Child’s best interest to remove Child from
the home, and terminate visitation with Father. Trial Ct. Op., 6/12/17, at 3.
Further, we find no reason to grant a new hearing in this case. Father’s new-
found readiness to attend court proceedings and visit Child is untimely. See
Pa.R.J.C.P. 1101(B); see also J.J., 69 A.3d at 731 (“[A]lthough preserving
the unity of the family is a purpose of the [Juvenile] Act, another vital purpose
is to ‘provide for the care, protection, safety, and wholesome mental and
physical development of children coming within the provisions of this
chapter.’” (citing 42 Pa.C.S. § 6301(b)(1.1)).
Accordingly, we affirm the juvenile court’s orders adjudicating Child
dependent, maintaining Child’s placement in foster care, setting Child’s
permanency goal to adoption, and terminating Father’s visitation.
Lastly, Father claims that the trial court erred in finding that aggravated
circumstances existed. Father’s Brief at 21-22. Father claims that because
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he did not attend the hearing, the trial court did not hear about his individual
situation. Id. at 21. He contends that reunification with a parent is the most
desirable goal and, thus, the court erred in not providing him with the
opportunity to work on a child permanency plan with the goal of reunification
with Child. Id. at 22.
Section 6341(c.1) of the Juvenile Act states that if the court makes a
finding of dependency,
the court shall also 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 home[,] or to preserve and reunify
the family[,] shall be made or continue to be made[,] and
schedule a hearing as required in section 6351(e)(3) (relating to
disposition of dependent child).
42 Pa.C.S. § 6341(c.1). Further, a finding of aggravated circumstances may
be made where “[t]he parental rights of the parent have been involuntarily
terminated with respect to a child of the parent.” 42 Pa.C.S. § 6302(5).
Moreover, the Juvenile Act provides that where there has been a finding
of aggravated circumstances, it is within the juvenile court’s discretion to
“determine whether or not reasonable efforts to prevent or eliminate the need
for removing the child from the home or to preserve and reunify the family
shall be made or continue to be made.” See In re A.H., 763 A.2d 873, 878
(Pa. Super. 2000) (internal quotation marks omitted); see also In the
Interest of Lilley, 719 A.2d 327, 333 (Pa. Super. 1998). “[T]he focus of
dependency proceedings [is] on the child. Safety, permanency, and the well-
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being of the child must take precedence over all other considerations,
including the rights of the parents.” In re R.P., 957 A.2d 1205, 1220 (Pa.
Super. 2008) (citation omitted).
Here, we find no error in the juvenile court’s finding that aggravated
circumstances existed as Father’s parental rights had been involuntarily
terminated as to another child, J.U.2. See Order, Aggravated Circumstances,
5/4/17; see also 42 Pa.C.S. § 6302(5). We further find no error in the court’s
finding that no reasonable efforts should be made to reunify the family
because it was not in Child’s best interest to remain in the home for the
reasons set forth above. See Order, Adjudication and Disposition, 5/4/17, at
1; see also A.H., 763 A.2d at 878. We conclude the trial court did not abuse
its discretion in finding that aggravated circumstances existed and that no
reasonable efforts to reunify the family should be made. See id.
Orders affirmed.
President Judge Gantman, President Judge Emeritus Bender, Judge
Panella, Judge Lazarus, Judge Dubow and Judge McLaughlin join the opinion.
Judge Dubow files a concurring statement in which President Judge
Emeritus Bender, Judge Panella, Judge Lazarus and Judge McLaughlin join.
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Judge Stabile files a dissenting opinion in which Judge Shogan joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2019
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