In the Interest of: N.H., a Minor Appeal of: J.H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: J.H.
No. 1881 MDA 2015
Appeal from the Order Entered September 23, 2015
In the Court of Common Pleas of Susquehanna County
Juvenile Division at No(s): CP-58-DP-0000014-2014
IN THE INTEREST OF: P.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: J.H.
No. 1902 MDA 2015
Appeal from the Order Entered September 29, 2015
In the Court of Common Pleas of Susquehanna County
Juvenile Division at No(s): CP-58-DP-0000015-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 20, 2016
In these consolidated appeals, Appellant, J.H. (Father), appeals from
the September 23 and 29, 2015 orders finding
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*
Retired Senior Judge assigned to the Superior Court.
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aggravated circumstances existed against Father in the dependency cases of
his daughters, N.H., born in February 2007, and P.H., born in March 2009.1
After careful review, we affirm the trial court’s September 29, 2015 order at
1902 MDA 2015 pertaining to P.H. Additionally, for the reasons set forth
below, we dismiss Father’s appeal at 1881 MDA 2015 pertaining to N.H.
The certified record reveals that the Children were adjudicated
dependent by the Susquehanna County Services for Children and Youth (the
Agency) on June 17, 2014. On July 16, 2015, while a petition for goal
change to adoption was pending, the Agency filed a motion for a finding of
aggravated circumstances against Father in the cases of N.H. and P.H.,
alleging that Father “has failed to maintain substantial and continuing
contact with the child[ren] for a period of six months.” See Motion,
7/16/15. A hearing occurred on September 23, 2015, during which Senior
Judge Linda Wallach-Miller specially presided.2 The Agency presented the
testimony of its caseworker, Jolene Kelly, and Father testified on his own
behalf.
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1
See In re R.C., 945 A.2d 182, 184 (Pa. Super. 2008) (holding an appeal
from an aggravated circumstances order “is an appeal as a right from a
collateral order” pursuant to Pa.R.A.P. 313).
2
In the interim, the permanency goal was changed to adoption on August 3,
2015.
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That same day, at the conclusion of the hearing, the trial court entered
an order finding aggravated circumstances against Father in N.H.’s case. On
October 23, 2015, Father filed a timely notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a)(2)(i).
With respect to P.H.’s case, the certified record reveals that an order
was also entered by Senior Judge Wallach-Miller on September 23, 2015,
and on September 29, 2015, Senior Judge Brendan Vanston issued an
amended order finding aggravated circumstances against Father. On
October 28, 2015, Father filed a timely notice of appeal and a Rule
1925(a)(2)(i) statement. On December 2, 2015, this Court consolidated
Father’s appeals sua sponte. See generally Pa.R.A.P. 513.
On appeal, Father raises the following issue for our review.
Whether the [t]rial [j]udge erred as a matter of law
and committed an abuse of discretion by issuing an
order making a finding of aggravated circumstances
(the Amended Order filed September 29, 2015)
when he did not preside over the aggravated
circumstances hearing, the parties did not consent to
him issuing the order, and there was not a transcript
of the hearing available for review at the time that
he issued the order?
Father’s Brief at 2.3
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3
Father does not assert any error with respect to the order finding
aggravated circumstances against him in N.H.’s case. Accordingly, Father’s
appeal at 1881 MDA 2015 is dismissed.
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We are guided by the following standard of review.
[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 the lower
court’s inferences or conclusions of law. Accordingly,
we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
In his appeal involving P.H.’s case, Father argues that Senior Judge
Vanston committed an abuse of discretion and an error of law by entering
the September 29, 2015 amended order, without having presided over the
hearing on the Agency’s motion for a finding of aggravated circumstances or
with the benefit of the hearing transcript. Father’s Brief at 5. Further,
Father asserts that the parties did not consent to Senior Judge Vanston
issuing the amended order. Id. In support of his argument, Father relies on
Hyman v. Borock, 235 A.2d 621 (Pa. Super. 1967), Ciaffoni v. Ford, 237
A.2d 250 (Pa. Super. 1968), and Wasiolek v. City of Philadelphia, 606
A.2d 642 (Pa. Cmwlth. 1992). In those cases, this Court and the
Commonwealth Court determined that “in the absence of the parties’
consent, a court may not substitute another judge for the trial judge where
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the testimony has been heard without a jury and the trial judge has not
rendered a decision on the factual issues.”4 Wasiolek, supra at 644.
In response to Father’s averments, the Agency explains as follows.
For N.H., the [trial c]ourt found for aggravated
circumstances against Appellant. For P.H., the [trial
c]ourt found for aggravated circumstances against
Appellant; however, there were defects in the Order.
First, the supposed date of the Order was
October 23, 2015. Next, under Section One entitled
“Findings,” the boxes making the specific findings, as
were found in N.H.’s Order, were not checked.
As a result, an Amended Order was prepared,
correcting the date and checking the boxes as was
done with N.H. The Order was signed by Senior
Judge Brendan J. Vanston.
In 2015, Susquehanna County was without a
full-time judge. Therefore, the County relied on the
assignment of Senior Judges to handle the caseload
for the year while the election process went forward
for [the] current President Judge.
For one year the County faced the reality of a
court calendar that was uncertain at best. Litigants
could and would be notified a week before their
hearing that there was no judge available. Senior
Judges would be available for a day or two and then
not be back in the county for weeks or months or not
at all.
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4
We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super.
2010) (citations omitted), appeal denied, 12 A.3d 371 (Pa. 2010).
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As a result, Senior Judge Brendan J. Vanston
issued an amended P.H. Order that corrected the
unintentional defects in the original P.H. Order.
Agency’s Brief at 2-3.
Father acknowledges in his brief that Senior Judge Wallach-Miller
issued two separate orders finding aggravated circumstances against him,
one in N.H.’s case, and one in P.H.’s case.5 Father states, “[a]fter the orders
were issued, [Senior Judge] Vanston [ ] issued an ‘Amended Order’ finding
that there was [sic] aggravated circumstances with respect to P.H.” Father’s
Brief at 3.
We conclude that, because Father acknowledges that Senior Judge
Wallach-Miller found aggravated circumstances against him in P.H.’s case,
the case law he relies upon, as cited above, is not controlling. The General
Assembly and our cases permit a trial court generally to enter an amended
order to correct obvious typographical errors. See 42 Pa.C.S.A. § 5505 (“a
court upon notice to the parties may modify or rescind any order within 30
days after its entry … if no appeal from such order has been taken or
allowed[]”); Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997)
(holding the trial court’s “authority under 42 Pa.C.S.A. § 5505 to modify or
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5
The order issued by Senior Judge Wallach-Miller finding aggravated
circumstances against Father in P.H.’s case is not included in the certified
record. However, Father included a copy of the order in his brief. See
Father’s Brief at Appendix A. Notably, the order finds, from clear and
convincing evidence, aggravated circumstances against Father. Id.
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rescind an order ‘is almost entirely discretionary; this power may be
exercised sua sponte, or may be invoked by a request for reconsideration
filed by the parties, and the court’s decision to decline to exercise such
power will not be reviewed on appeal[]’”) (citation omitted). Furthermore,
Father does not assert prejudice as a result of the entry of the amended
order, nor are we aware of any. Therefore, it follows that the trial court did
not commit an abuse of discretion in this case. See R.J.T., supra.
Based on the foregoing, we dismiss Father’s appeal at 1881 MDA
2015, and conclude that Father’s sole issue in his appeal at 1902 MDA 2015
is devoid of merit. Accordingly, the trial court’s September 29, 2015 order is
affirmed.
Appeal at 1881 MDA 2015 dismissed. Order at 1902 MDA 2015
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2016
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