In the Int. of: S.B.A., Appeal of: D.B ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.B.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.B, FATHER :
:
:
:
: No. 724 EDA 2019
Appeal from the Order Entered February 7, 2019
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): 51-FN-371120-2009,
CP-51-DP-0015029-2003
BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 04, 2020
Appellant, D.B. (“Father”), files this appeal pro se from the shelter care
order dated and entered February 7, 2019, in the Philadelphia County Court
of Common Pleas, finding sufficient evidence was presented that return of his
son, S.B.A., born in June 2002 (“Child”), was not in Child’s best interest, and
granting the petition of the Philadelphia Department of Human Services
(“DHS”).1 Father additionally files, on December 23, 2019, a petition seeking
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* Former Justice specially assigned to the Superior Court.
1 P.C. (“Mother”) did not file an appeal of this order, nor did she participate in
this appeal.
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the release of Child. After review, we affirm the trial court’s order and deny
Father’s petition.
The trial court summarized the procedural and factual history as follows:
The relevant facts and procedural history of this case are as
follows: Child had been previously adjudicated dependent on
03/04/2016.[2] An OPC [Order of Protective Custody] was
obtained on behalf of Child on February 05, 2019.[3] Child is
currently placed in a Group Home through St. Francis. In
September of 2018, DHS received an allegation that Father was
abusing Child. As a result, DHS attempted to remove Child from
the home. However, Child became angry and uncontrollable.
Consequently, Child was taken to the Crisis Center and
hospitalized at Belmont. While at Belmont, Child was diagnosed
with a “specific psychotic disorder”. Once discharged from
Belmont, “[Child] [would have been] able to go back to the home”
and receive outpatient services through the “Peace Program”.
However, while Child was hospitalized, “[Child’s] family lost their
housing.” Prior to the hearing held on November 14, 2018, Child’s
family regained housing, returning to a former residence. At the
November hearing, the DHS worker testified that the home the
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2 Child was additionally adjudicated dependent with DHS supervision and
services to Mother in 2003. See Adjudicatory Hearing and Order, 1/15/03;
see also Post-Adjudication Hearing and Order, 2/12/03. DHS supervision was
discharged on June 30, 2003. See Post-Adjudication Hearing and Order,
6/30/03. Thereafter, Child was removed from Mother’s care in February 2016.
See Order of Protective Custody, 2/12/16; see also Master Recommendation
for Shelter Care/Order, 2/15/16. Child was reunited with Father on January
10, 2018. See Order, 1/10/18.
3Upon review, while dated February 5, 2019, the OPC was entered February
6, 2019.
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family returned to “lacked water and electricity”. Consequently,
Child was placed at St. Francis.[4], [5]
Trial Court Opinion (“T.C.O.”), 8/6/19, at 1-2 (citations to the record omitted).
A subsequent shelter care hearing was held on February 7, 2019. Father
and Mother were not present, but were each represented by appointed
counsel. The court heard from Nekeisha Bolvin, DHS hotline social worker,
and Daquan Jenkins, CUA case manager, Turning Points for Children.6
At the conclusion of the hearing, the court entered an order finding
sufficient evidence was presented that return of Child to Father was not in
Child’s best interest, and granting the petition of DHS. Child was recommitted
to DHS, and legal and physical custody were returned to DHS.7
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4 The trial court ordered that an OPC was to be filed once an appropriate
treatment foster home was secured. See Permanency Review Order,
11/14/18, at 2; see also Notes of Testimony (“N.T.”), 11/14/18, at 28-29.
Notably, at the subsequent shelter care hearing on February 7, 2019, CUA
case manager, Turning Points for Children, Daquan Jenkins, testified that Child
was rejected from multiple treatment foster care facilities for unknown
reasons. N.T., 2/7/19, at 7.
5We observe that during the November 14, 2018 permanency review hearing,
Father was removed from the courtroom for “disruptive behavior” and held in
custody. He was not found in contempt and was ordered released. See
Permanency Review Order, 11/14/18, at 2.
6Child was represented by Frances Odza, Esquire, who was appointed as his
counsel on February 12, 2016.
7 At the time of the most recent permanency review hearing, as reflected in
the certified record, Child’s commitment was ordered to stand. Legal custody
remained with DHS and Child’s placement was in a St. Vincent/St. Katherine
Group Home. Further, Child’s placement goal remained return to parent or
guardian. See Permanency Review Order, 6/26/19, at 1.
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Father, pro se, filed a timely notice of appeal on March 4, 2019, along
with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). At the time, Father remained represented by
appointed counsel, but counsel filed with this Court an application to vacate
his appointment, while Father filed a motion to proceed pro se. By orders
entered on April 5, 2019, we denied counsel’s application and Father’s motion
without prejudice to seek the requested relief in the trial court. Also by order
entered April 5, 2019, this Court directed counsel to file an amended Rule
1925(b) statement. We vacated this latter order on April 11, 2019, however,
in light of the trial court’s subsequent vacation of counsel’s appointment. After
directing Father to notify this Court in writing as to whether he retained new
counsel or would proceed pro se, and in consideration of his response, a
motion to proceed pro se, we granted Father’s motion by order entered May
10, 2019.
On appeal, Father raises the following issue for our review:
Does a private corporation[,] DHA [sic] and/or CUA [Community
Umbrella Agency][,] have a right to dictate to this man the raising
of his biological son? What law supports DHS and/or CUA’s
interference in this man’s life in the raising of his biological son,
produce this law?
Father’s Brief at iv.
At the outset, our standard of review for dependency cases is as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept
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the lower court’s inferences or conclusions of law.
Accordingly, we review for an abuse of discretion.
In re R.J.T., 608 Pa. 9, 26, 9 A.3d 1179, 1190 (2010) (citations omitted);
see also In re L.Z., 631 Pa. 343, 360, 111 A.3d 1164, 1174 (2015).
However, before addressing the merits of Father’s appeal and any issues
raised, we determine whether the issues have been properly preserved for our
review. See Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178
(2006) (holding this Court may sua sponte determine whether issues have
been properly preserved for appeal).
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) requires an
appellant in a Children’s Fast Track matter to submit a Concise Statement of
Errors Complained of on Appeal along with the Notice of Appeal. See Pa.R.A.P.
1925(a)(2)(i) (stating, “The concise statement of errors complained of on
appeal shall be filed and served with the notice of appeal required by Rule
905. . . .”).
Where a Rule 1925(b) Statement does not sufficiently identify the issues
raised on appeal, we have found waiver of all issues on appeal and explained
as follows:
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1999),
the Pennsylvania Supreme Court specifically held that “from this
date forward, in order to preserve their claims for appellate
review, Appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal
pursuant to [Pa.R.A.P.] 1925.” Lord, 719 A.2d at 309. “Any
issues not raised in a 1925(b) statement will be deemed waived.”
Id. This Court explained in Riley v. Foley, 783 A.2d 807, 813
(Pa.Super. 2001), that Rule 1925 is a crucial component of the
appellate process because it allows the trial court to identify and
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focus on those issues the parties plan to raise on appeal. This
Court has further explained that “a Concise Statement which is
too vague to allow the court to identify the issues raised on appeal
is the functional equivalent to no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super.
2001). “Even if the trial court correctly guesses the issues
Appellants raise[] on appeal and writes an opinion pursuant to
that supposition the issues [are] still waived.” Commonwealth
v. Heggins, 809 A.2d 908, 911 (Pa.Super. 2002).
Kanter v. Epstein, 866 A.2d 394, 400 (Pa.Super. 2004), appeal denied, 584
Pa. 678, 880 A.2d 1239 (2005), cert. denied, Spector, Gadon & Rosen, P.C.
v. Kanter, 546 U.S. 1092, 126 S. Ct. 1048, 163 L. Ed. 2d 858 (2006). We have
further stated:
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that Lord
should also apply to Concise Statements which are so vague as to
prevent the court from identifying the issue to be raised on appeal.
...
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006) (quoting
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)).
This Court has likewise found waiver applicable to voluminous
statements. As indicated in Tucker v. R.M. Tours, 939 A.2d 343, 346
(Pa.Super. 2007):
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Our law makes it clear that Pa.R.A.P. 1925(b) is not satisfied by
simply filing any statement. Rather, the statement must be
“concise” and coherent as to permit the trial court to understand
the specific issues being raised on appeal. Specifically, this Court
has held that when appellants raise an “outrageous” number of
issues in their 1925(b) statement, the appellants have
“deliberately circumvented the meaning and purpose of Rule
1925(b) and ha[ve] thereby effectively precluded appellate review
of the issues [they] now seek to raise.” Kanter, 866 A.2d at 401.
We have further noted that such “voluminous” statements do not
identify the issues that appellants actually intend to raise on
appeal because the briefing limitations contained in Pa.R.A.P.
2116(a) makes the raising of so many issues impossible. Id.
“Further, this type of extravagant 1925(b) statement makes it all
but impossible for the trial court to provide a comprehensive
analysis of the issues.” Jones v. Jones, 878 A.2d 86, 90
(Pa.Super. 2005).
Further, as we held in Krebs v. United Refining Co., 893 A.2d 776,
797 (Pa.Super. 2006), a failure to preserve issues by raising them both in the
concise statement of errors complained of on appeal and statement of
questions involved portion of the brief on appeal results in a waiver of those
issues.
Additionally, pursuant to Pennsylvania Rule of Appellate Procedure
2111:
(a) General rule.--The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following
order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
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(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment that
no order requiring a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
(b) Opinions below.--There shall be appended to the brief
copy of any opinions delivered by any court or other government
unit below relating to the order or other determination under
review, if pertinent to the questions involved. If an opinion has
been reported, that fact and the appropriate citation shall also be
set forth.
(c) Pleadings.--When pursuant to Rule 2151(c) (original
hearing cases) the parties are not required to reproduce the
record, and the questions presented involve an issue raised by the
pleadings, a copy of the relevant pleadings in the case shall be
appended to the brief.
(d) Brief of the Appellant.--In the Superior Court, there shall
be appended to the brief of the appellant a copy of the statement
of errors complained of on appeal, filed with the trial court
pursuant to Pa.R.A.P. 1925(b). If the trial court has not entered
an order directing the filing of such a statement, the brief shall
contain an averment that no order to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered by the trial court.[8]
Pa.R.A.P. 2111 (footnote added).
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8As indicated above, in Children’s Fast Track matters, such as this matter, a
concise statement of errors complained of on appeal is required to be
submitted with the notice of appeal. Pa.R.A.P. 1925(a)(2)(i).
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Rules 2114 through 2119 establish and set forth in detail the specifics
as to each of the required sections of the brief. See Pa.R.A.P. 2114-2119. As
to the argument section of a brief, Rule 2119 provides as follows:
Rule 2119. Argument.
(a) General rule.—The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
(b) Citations of authorities.—Citations of authorities in briefs
shall be in accordance with Pa.R.A.P. 126 governing citations of
authorities.
(c) Reference to record.—If reference is made to the
pleadings, evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to
appears (see Pa.R.A.P. 2132).
(d) Synopsis of evidence.—When the finding of, or the refusal
to find, a fact is argued, the argument must contain a synopsis of
all the evidence on the point, with a reference to the place in the
record where the evidence may be found.
(e) Statement of place of raising or preservation of
issues.—Where under the applicable law an issue is not
reviewable on appeal unless raised or preserved below, the
argument must set forth, in immediate connection therewith or in
a footnote thereto, either a specific cross-reference to the page or
pages of the statement of the case which set forth the information
relating thereto as required by Pa.R.A.P. 2117(c), or substantially
the same information.
...
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“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.” In re W.H., 25
A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364
(2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)); see also
In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017).
With regard to non-compliance, Rule 2101 provides as follows:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.
Pa.R.A.P. 2101.
We have held that an appeal may be dismissed and/or quashed where
the deficiencies of the appellant’s brief are such that we are unable to conduct
a meaningful review. Karn v. Quick & Reilly, Inc., 912 A.2d 329, 337
(Pa.Super. 2006); Branch Banking & Trust v. Gesiorski, 904 A.2d 939,
943 (Pa.Super. 2006); Commonwealth v. Maris, 629 A.2d 1014, 1017
(Pa.Super. 1993). Of particular importance, an appellant must include a
statement of questions involved. Branch Banking & Trust, 904 A.2d at 942;
Maris, 629 A.2d at 1016. As we indicated in Maris:
“This Court possesses discretionary authority to quash, dismiss or
deny allowance of appeal based upon the substantial defects of
appellant’s brief. Pa.R.A.P. 2101.” Commonwealth v. Ely, 381
Pa.Super. 510, 513, 554 A.2d 118, 119 (1989). . . . “We decline
to become appellant’s counsel. When issues are not properly
raised and developed in briefs, when the briefs are wholly
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inadequate to present specific issues for review a Court will not
consider the merits thereof.” Sanford, supra, 299 Pa.Super. at
67, 445 A.2d at 150. . . .
Maris, 629 A.2d at 1017.
Moreover, we cannot accord special relief to an appellant merely
because of his pro se status. See id. As stated in Commonwealth v. Rivera,
685 A.2d 1011, 1013 (Pa.Super. 1996) (quoting O'Neill v. Checker Motors
Corp., 567 A.2d 680, 682 (Pa.Super. 1989)):
While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any
particular advantage because she lacks legal training. As our
[S]upreme [C]ourt has explained, any layperson choosing to
represent [herself] in a legal proceeding must, to some reasonable
extent, assume the risk that [her] lack of expertise and legal
training will prove [her] undoing.
In the case sub judice, we first observe the vague and rambling nature
of Father’s Rule 1925(b) concise statement. Father’s statement is largely an
unstructured, stream-of-consciousness narrative. We, nevertheless, find that
we are able to decipher several claimed errors, namely, lack of notice of the
February 7, 2019 hearing, counsel’s breach of fiduciary obligation, and lack of
sufficient evidence to support removal of Child from Father’s home and/or that
return is not in Child’s best interests and welfare.
We, however, note with disapproval Father’s deficient brief. Father’s
brief fails to contain the appropriate sections and organization required and
set forth by our appellate rules in order to provide meaningful review. Rather,
Father presents a disjointed challenge to jurisdiction, followed by a motion to
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dismiss,9 followed by a “custody brief.” More importantly, this “custody brief,”
which is essentially an argument on the merits and we equate with an
argument section, is devoid of any organizational headings, but any citation
to the record and to applicable law. See Pa.R.A.P. 2101; see also In re
W.H., 25 A.3d at 339 n.3; see also In re M.Z.T.M.W., 163 A.3d at 465-66;
see also Pa.R.A.P. 2119(a), (b), (c).
Moreover, review of Father’s statement of questions involved exposes
that Father only preserved a challenge to the sufficiency of the evidence for
review, as he failed to raise the remaining issues raised in his Rule 1925(b)
concise statement in his statement of questions involved. See Krebs, 893
A.2d at 797.
Even had we found this issue preserved, we would find Father’s
opposition to the trial court’s ruling without merit. The record reveals Father’s
lack of parental care and control and inability to provide for Child’s safety and
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9 Father’s request for dismissal is largely based on an assertion of lack of
notice. Father, however, waived this issue by failing to raise it in the court
below as the matter proceeded. See Pa.R.A.P. 302(a) (providing for waiver
of issues not first raised in lower court); Fillmore v. Hill, 665 A.2d 514, 515-
16 (Pa.Super. 1995) (stating, “[I]n 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, such as an erroneous jury instruction, 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.”) (citations omitted). Critically, Father
was represented by counsel who agreed to proceed with the November 14,
2018 hearing without Father once he was removed from the courtroom. N.T.,
11/14/18, at 14. Likewise, counsel failed to object or raise Father’s lack of
presence and/or lack of notice at the February 7, 2019 hearing.
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welfare. Specifically, the evidence supports the finding of an unstable and
insecure home environment. At the November 14, 2018 hearing, it was
indicated that the family did not have proper housing. Daquan Jenkins, CUA
case manager, Turning Points for Children, testified that he “let the family
know that [Child] can’t return home until there’s proper housing found
because I believe they returned to their [previous] home that lacked water
and electricity, so [Child] couldn’t return back to the home.” N.T., 11/14/18,
at 16. Further, Stepmother acknowledged that she and Father were “waiting
for a contractor to do what he need [sic] to do.” Id. at 27. Moreover, in his
brief to this Court, Father states that, while the electricity is now on, there
remains no water in his home. Father’s Brief at 3.10
For the foregoing reasons, we affirm the order of the trial court granting
DHS’s petition for shelter care and deny Father’s petition seeking release of
Child.
Order affirmed. Petition denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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10 Curiously, Father attempts to blame the trial judge for his water being
turned off. Father’s Brief at 4.
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