In the Int. of: A.D.-G., a Minor ( 2021 )

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2021 PA Super 177IN THE INTEREST OF: A.D.-G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF M.G., FATHER :
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: No. 544 MDA 2021
Appeal from the Order Entered March 29, 2021
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): CP-28-DP-0000025-2019
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
OPINION BY PANELLA, P.J.: FILED SEPTEMBER 03, 2021
M.G. (“Father”) appeals from the order entered March 29, 2021, which
found his daughter, A.D.-G. (“Child”), remained dependent, denied his motion
to terminate the dependency, found aggravated circumstances based on
Father’s history of sexual abuse, and directed no further efforts be made to
reunify him with Child.1 Father contends that the juvenile court violated his
right to due process, and that the evidence did not support the court’s
dependency finding. Because we discern no error of law or abuse of discretion,
we affirm.
Franklin County Children and Youth Service (“CYS”) became involved
with Child at the time she was born in February 2019, when she and Mother
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* Retired Senior Judge assigned to the Superior Court.
1 Child’s mother, E.G. (“Mother”), did not appeal the juvenile court’s order and
did not participate in this appeal.
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tested positive for illegal substances. See Recommendation for Adjudication
and Disposition, 4/2/19, at 1-2. Mother consented to a safety plan, which
provided she would have no unsupervised contact with Child. See id. at 2-3.
CYS learned, however, that Mother violated the plan by having unsupervised
contact. See id. at 3-4.
In response, CYS obtained emergency protective custody of Child
pursuant to a verbal order which the court confirmed in writing on March 19,
2019. The court scheduled a shelter care hearing but continued the matter at
Mother’s request and consolidated it with Child’s adjudication and disposition
hearing. The consolidated hearing occurred before a hearing officer on March
28, 2019, after which the hearing officer issued a recommendation that Child
be adjudicated dependent. The court adopted the recommendation on April 2,
2019, and Child has remained in foster care since then.
At the time of the adjudication of dependency, CYS did not know Father
was Child’s natural father. Mother had identified another man, J.D., as Child’s
father, and J.D. was listed as Child’s father in court filings through October
2019. The record indicates J.D. was incarcerated at the time of Child’s
adjudication. See id. at 4-6; N.T., 2/9/21, at 11. After a paternity test
revealed J.D. was not Child’s father, Mother provided CYS with a vague
description of another man. See N.T., 2/9/21, at 12. CYS ultimately identified
the man as Father. See id. A paternity test in November 2019 confirmed that
Father was Child’s natural father. See id. at 12-13.
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Significantly, CYS discovered soon thereafter that Father is a registered
sexual offender. Father had sexually abused his own sister, beginning when
she was about one year old, and he was eleven years old. See id. at 22-23,
28-29, 36. The sexual abuse continued until Father’s sister was eleven years
old, and he was twenty-one years old and had been married for two years.
See id. 28-29, 36-37. As a result of this, Father pled guilty to misdemeanor
indecent assault and was found to be a sexually violent predator (“SVP”).2
See id. at 123; CYS Exhibits 1-3 (documents relating to Father’s conviction
and SVP status).
On December 13, 2019, CYS filed a motion requesting that the juvenile
court find aggravated circumstances, based on Father’s conviction for indecent
assault. The hearing officer recommended a finding of aggravated
circumstances on October 7, 2020. In addition, the hearing officer
recommended that no further efforts be made to reunify Child and Father. On
October 8, 2020, the court adopted the recommendation. Father filed a motion
challenging the hearing officer’s recommendation on October 16, 2020, and
an amended motion on October 20, 2020. By order entered on October 23,
2020, the court scheduled a de novo hearing.
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2 The statutory definitions of SVP now appear at 42 Pa.C.S.A. §§ 9799.12 and
9799.53. The 2008 order finding Father to be an SVP cited a prior version of
the sexual offender registration statute. See CYS Exhibit 3 (finding Father to
be an SVP as defined at 42 Pa.C.S.A. § 9792). All three versions of the
definition use similar language and define an SVP as, in relevant part, a person
with a mental abnormality or personality disorder that makes the person likely
to engage in predatory sexually violent offenses.
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On November 6, 2020, Father also filed a “Motion to Dismiss/Terminate”
Child’s dependency. He argued he was not notified of the initial proceedings
in this matter, such as Child’s placement in foster care and adjudication, that
he never had the opportunity to defend himself in those proceedings, and that
the court never determined whether he could provide Child with proper care.
Father also requested a hearing so that the juvenile court could determine his
fitness to provide proper care.
Ultimately, the juvenile court held its de novo hearing on CYS’s motion
for a finding of aggravated circumstances and addressed Father’s motion to
end Child’s dependency on February 9, 2021. CYS presented testimony from
its caseworker, Gayle Schreiber, and called Father as on cross-examination.
CYS then presented the testimony of Child’s foster mother, S.B.; Alternative
Behavioral Consultants parent educator, Charity Brallier, who performed an
assessment of Father’s parenting ability; and Rita Lukas, president of Father’s
previous sexual offender treatment provider, FAACT, Inc. Father presented
testimony from Tracey Boyle, a licensed professional counselor who performed
an assessment of his risk of harm to Child. He also testified on his own behalf.
On March 29, 2021, the juvenile court entered an order (1) finding Child
remained dependent, (2) denying Father’s motion to end Child’s dependency,
(3) finding aggravated circumstances existed due to Father’s indecent assault
conviction and status as an SVP, and (4) directing no further efforts be made
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to reunify Father and Child.3 Father timely filed a notice of appeal on April 28,
2021, along with a concise statement of errors complained of on appeal.4
Father now purports to raise the following claims for our review:
I. Whether it was an abuse of discretion for the [juvenile] court to
find aggravated circumstances against [] [F]ather before there
was any adjudication of child dependency as against Father[?]
II. Whether the [juvenile] court properly adjudicated dependency
when [C]hild was adjudicated dependent prior to [Father] being
notified of a dependency proceeding; [Father] did not have
opportunity to challenge dependency adjudication; [C]hild was
never alleged to be dependent as against [] [F]ather and while in
[Father’s] care[?]
III. Whether [Father’s] status as an SVP . . . was a proper basis
to deny [Father] custody of [C]hild and terminate dependency
when [Father’s] SVP status came from conduct beginning while
[Father] was a juvenile, and was committed prior to the birth of
any of his children[?]
IV. Whether [Father’s] due process rights were violated when
Father requested a rehearing of shelter care, when the [juvenile]
court held an aggravated circumstances hearing before there was
a finding of dependency as to Father and, when no petition
alleging dependency was ever filed as against [Father?]
Father’s Brief at 5-6.
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3 The order also directed that a permanency review hearing occur within thirty
days.
4 Our case law indicates this was appealable as a collateral order pursuant to
Pa.R.A.P. 313. See In re R.C., 945 A.2d 182, 184 (Pa. Super. 2008)
(explaining that the order finding aggravated circumstances and ending
reunification services was “by definition . . . an appeal as of right from a
collateral Order”).
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Before beginning our review, we address Father’s defective presentation
of his claims on appeal. While Father includes four claims in his statement of
questions involved, he divides the argument in his brief into two sections, each
containing numerous subclaims, which he does not divide under headings or
organize in any other coherent fashion. Cf. Pa.R.A.P. 2119(a) (“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”). Father’s noncompliance with
our rules is not so substantial as to impede meaningful appellate review and
require dismissal of his entire appeal, but we caution his counsel to comply
strictly with our briefing rules in any future appeals. See Pa.R.A.P. 2101 (“[I]f
the defects are in the brief . . . of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.”); Krauss v. Trane U.S. Inc.,
104 A.3d 556, 584 (Pa. Super. 2014) (“When deficiencies in a brief hinder our
ability to conduct meaningful appellate review, we may dismiss the appeal
entirely or find certain issues to be waived.”).
Turning to the merits, we divide Father’s claims into two categories for
ease of disposition. Father contends (1) that the juvenile court violated his
right to due process, and (2) that the evidence does not support the court’s
finding that Child is a dependent child pursuant to the Juvenile Act.
Regarding Father’s assertion that the court violated his right to due
process, this raises a question of law for which our standard of review is de
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novo. See Interest of S.L., 202 A.3d 723, 729 (Pa. Super. 2019). A parent
has the right to due process in any dependency case involving his or her child.
See, e.g., In Interest of Jones, 429 A.2d 671 (Pa. Super. 1981). This right
is not without limit, however. See S.T. v. R.W., 192 A.3d 1155, 1161 (Pa.
Super. 2018) (“Due process is flexible and calls for such procedural protections
as the situation demands.”). “‘[P]rocedural due process requires, at its core,
adequate notice, opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over the case.’” Id. at
1161 (quoting J.M. v. K.W., 164 A.3d 1260, 1269 (Pa. Super. 2017)).
We begin with Father’s due process claims. Father contends he was not
notified of the initial dependency proceedings in this case and did not receive
the opportunity to defend against CYS’s dependency allegations. See Father’s
Brief at 10, 15-16. Father further argues the juvenile court failed to require
CYS to file a dependency petition against him, specifically. See id. at 11-12,
15. He maintains CYS never alleged Child was dependent while in his care,
and that its failure to file a petition deprived the court of jurisdiction to make
a dependency finding against him. See id. at 12-13. Finally, Father asserts
the court erroneously conducted an aggravated circumstances hearing before
making the necessary dependency finding. See id. at 14, 16.
We discern no error of law or abuse of discretion in the juvenile court’s
analysis. As discussed in our summary of the facts and procedural history of
this case, the court and CYS did not initially know Father was Child’s natural
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father. Mother had identified another man, J.D., as Child’s father, and the
court and CYS did not learn the truth until November 2019, seven months
after Child’s adjudication of dependency in April 2019. See N.T., 2/9/21, at
11-13. It was impossible for the court and CYS to notify Father of Child’s initial
dependency proceedings or facilitate his participation in those proceedings. To
the extent Father contends he did not receive the opportunity to challenge
Child’s status as dependent, however, he is incorrect. Father filed a motion to
end Child’s dependency, and the court held a hearing to provide Father that
opportunity.
Further, we note permanency review hearings occurred on January 9,
2020, August 20, 2020, November 5, 2020, and February 4, 2021, which
included determinations of whether Child remained dependent. In the
Interest of H.K., 172 A.3d 71, 79 (Pa. Super. 2017) (citing 42 Pa.C.S.A. §
6351(e)-(f.1); Pa.R.J.C.P. 1607–1609) (“[Juvenile] courts in dependency
matters must conduct periodic permanency review hearings during which they
assess, among other things, whether the child remains dependent”). As such,
these were also opportunities for Father to present evidence and challenge
Child’s dependent status.
Father also argues that the juvenile court lacked jurisdiction because
CYS failed to file a dependency petition against him. Father’s argument is
misplaced. The Juvenile Act confers jurisdiction on the appropriate court of
common pleas to address petitions alleging that a child is dependent. See 42
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Pa.C.S.A § 6321; see also In re A.L., 779 A.2d 1172, 1175 (Pa. Super.
2001). Accordingly, once an appropriate party has filed a petition with the
appropriate court alleging that a child is dependent, that court has jurisdiction
to address the petition. See id.For example, if an infant was found alone on the street after midnight
in winter, a local agency could file a dependency petition with no parents
named. The petition would grant the local court jurisdiction to assess and
address the needs of the child while also pursuing the identity of the parents.
If the parents are located, then due process concerns require that they be
provided notice and an opportunity to be heard in any future dependency
proceedings. But jurisdiction over the dependency petition would be
unaffected.
Here, CYS filed its petition pursuant to Section 6302(1), alleging that
Child lacked proper parental care or control. See In re M.L., 757 A.2d 849,
851 (Pa. 2000). Child unquestionably met this definition during the initial
dependency proceedings. Mother was engaging in substance abuse and
violated CYS’s safety plan, while putative father J.D. was incarcerated. See
Recommendation for Adjudication and Disposition, 4/2/19, at 1-6; N.T.,
2/9/21, at 11.
The court and CYS did not realize Father existed, and Father did not
realize Child existed. See N.T., 2/9/21, at 11-13, 191. Accordingly, Father
could not provide Child with proper parental care or control at that time,
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either. Accordingly, the court had jurisdiction over CYS’s petition. And, as
discussed previously, once Father was identified as a party with a protected
interest in the matter, he was provided with notice and an opportunity to be
heard by an impartial tribunal on the issue of Child’s needs and welfare. Father
has not established that the dependency proceeding violated his due process
rights.
Father’s final due process argument, that the juvenile court improperly
found aggravated circumstances before making a dependency finding against
him, fails for the same reasons. Once again, courts make dependency findings
as to individual children, not individual parents. See In re J.C., 5 A.3d at 289.
Once the court adjudicated Child dependent in April 2019, the Juvenile Act
permitted it to find aggravated circumstances, and no second adjudication of
dependency as to Father was necessary. See 42 Pa.C.S.A. §§ 6341(c.1),
6351(e)(2); Pa.R.J.C.P. 1705. As noted above, what due process required was
that once Father was identified as an interested party, he was entitled to notice
of the proceedings and an opportunity to be heard. As Father has not
established his interests were impaired without notice or an opportunity to be
heard by an impartial tribunal, his due process claim fails.
We now turn our attention to Father’s second set of claims, where he
challenges the juvenile court’s finding that Child remains dependent. We
review orders in dependency proceedings for an abuse of discretion. See In
re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the juvenile court’s
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findings of fact and credibility determinations if the record supports them, but
we need not accept the court’s inferences or conclusions of law. See id.Father argues Child is not dependent because he can provide her with
proper parental care and control. See Father’s Brief at 9-10, 13. The Juvenile
Act governs dependency proceedings. See 42 Pa.C.S.A. §§ 6301–6375. A
juvenile court may adjudicate a child dependent if it determines by clear and
convincing evidence that he or she meets the requirements of one of ten
definitions listed under § 6302. See 42 Pa.C.S.A. §§ 6302, 6341(c);
Pa.R.J.C.P. 1409(A)(1). Here, the court found Child met the first of these
definitions, which defines a child as dependent when lacking “proper parental
care or control, subsistence, education as required by law, or other care or
control necessary for his physical, mental, or emotional health, or morals.”
42 Pa.C.S.A. § 6302(1).
If the juvenile court adjudicates a child dependent, and either the county
agency or the child’s attorney has alleged aggravated circumstances exist, the
court must then determine the veracity of those allegations. See 42 Pa.C.S.A.
§§ 6341(c.1), 6351(e)(2); Pa.R.J.C.P. 1705. If the court finds by clear and
convincing evidence that aggravated circumstances do exist, it must consider
whether reasonable efforts to prevent or eliminate the need to remove the
child or to preserve and reunify the family should be made or continue to be
made. See id. The court may direct that no reasonable efforts be made or
continue to be made at its discretion. See In re L.V., 127 A.3d 831, 839 (Pa.
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Super. 2015) (citing In re A.H., 763 A.2d 873, 878 (Pa. Super. 2000)). Of
relevance to this appeal, the Juvenile Act defines “Aggravated circumstances”
to include situations where the parent has been convicted of misdemeanor
indecent assault pursuant to 18 Pa.C.S.A. § 3126 and, separately, where the
parent must register as a sexual offender. See 42 Pa.C.S.A. § 6302(3)(iii),
(6).
Father contends the court based its finding on his lack of a bond with
Child and his SVP status. See id. at 9, 13. According to Father, this was
improper because his lack of a bond with Child resulted from the court
suspending his visits with her and because he incurred his SVP status long
before she was born. See id. at 9, 13-14. In addition, Father attempts to
suggest that his SVP status is irrelevant to the question of whether Child is
dependent, because the definition of “Dependent child” in the Juvenile Act
does not mention SVP status as a factor. See id. at 9-10, 14.
The juvenile court explained in its opinion accompanying the order on
appeal that Father could not provide Child with proper parental care or control.
See Opinion and Order of Court, 3/29/21, at 12. It acknowledged Father may
have the essentials necessary for Child’s physical wellbeing, such as food and
shelter, but reasoned that it was necessary to consider Child’s best interests
in totality. See id. The court observed Child has no bond with Father. See id.
More significantly, in explaining its decision that no further efforts should
be made to reunify Father with Child, the court discussed Father’s history of
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perpetrating child sexual abuse. It emphasized Father began sexually abusing
his sister when she was just a toddler and continued the abuse until she was
approximately eleven years old. See id. at 16-17. The abuse continued even
into Father’s adulthood and after he was married. See id. at 17. The court
observed Father is an SVP, which indicates he is likely to engage in predatory
sexually violent offenses, and that he was discharged unsuccessfully from his
previous sexual offender treatment provider. See id. at 17-18. The court
concluded no number of additional services would sufficiently mitigate the risk
Child would face in Father’s home, commenting, “we are not convinced that
placing a child of the same age and gender as Father’s prior long-time victim
in his home, is in this little girl’s best interest.” See id. at 18-19.
We agree with the juvenile court and conclude Father’s contentions are
misplaced. First, there is no significant relationship between Father and Child.
Father did not know that Child existed until October 2019, when she was eight
months old. See N.T., 2/9/21, at 191. Once Father discovered Child existed,
he visited with her for less than a year.5 See id. at 16, 20-21, 198. Due to
the COVID-19 pandemic, which obviously was beyond Father’s control, Father
spent part of that year receiving only virtual visits, which lasted “10 or 15
minutes.” Id. at 198. Under the circumstances, even if the court were to find
that Father did not pose a threat to Child’s safety, it could not simply place
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5 An August 24, 2020, permanency review order indicates Father’s visits would
be suspended.
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Child in Father’s custody as he suggests. In re B.B., 745 A.2d 620, 623 (Pa.
Super. 1999)(affirming the adjudication of dependency, where the court
“determined that the fact that [the appellant] is completely unknown to the
children prevents his designation as a proper parental caregiver to them”).
Second, while Father is correct Section 6302(1) does not mention SVP
status as a relevant factor in determining whether a child is dependent, it is
apparent our General Assembly drafted Section 6302(1) to be flexible and to
encompass the myriad circumstances that may cause a child to be without
proper parental care or control. Indeed, Section 6302(1) does not mention
many of the concerns that routinely result in findings of dependency, such as
incarceration or a lack of appropriate housing. If a parent is an SVP, that is, a
person with a mental abnormality or personality disorder that makes him or
her likely to engage in sexually violent offenses, the juvenile court should
certainly consider that when assessing the parent’s abilities, to ensure it does
not place a child in a dangerous environment. We therefor discern no error by
the court in its consideration of Father’s SVP status in this case.
Regarding the remainder of Father’s arguments, he either trivializes or
ignores the overwhelming evidence presented at the hearing on February 9,
2021, which confirmed Child remains dependent pursuant to Section 6302(1).
As we have summarized, the record indicates Father committed approximately
ten years of sexual abuse against his own sister, starting when she was one
year old. N.T., 2/9/21, at 22-23, 28-29, 36. Child was two years old at the
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time of the hearing, and it was reasonable for the juvenile court to weigh the
similarity between Child and Father’s prior victim when concluding that placing
Child is Father’s care would pose a threat to her safety.
Another significant concern at the hearing was Father’s recent discharge
from his longtime sexual offender treatment provider, FAACT, Inc. Rita Lukas,
the president of FAACT, testified Father submits to annual polygraphs due to
his SVP status, and that a polygraph on June 11, 2020, indicated dishonesty
when Father was asked if he had engaged in sexual contact with a minor since
the previous year.6 See id. at 92-94, 116-18. FAACT subsequently discharged
Father on June 26, 2020. See id. at 91-92, 119-20.
While the exact reasons and merits of this decision were the subject of
much discussion at the hearing, it appears the discharge occurred for several
reasons, which included Father’s apparent dishonesty on the polygraph; his
need for more frequent treatment due to this dishonesty; his significant
distance from FAACT, which made more frequent treatment a challenge; and
FAACT’s rejection of his health insurance. See id. at 92-95, 109-10. We
acknowledge Father testified that he had begun attending treatment at a new
provider each week. However, he remained in the preliminary stages of this
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6 We acknowledge that the results of the polygraph cannot be used as
evidence to establish Father actually engaged in sexual conduct with children
in the prior year. However, the results are evidence bearing upon why FAACT
discharged Father. See Commonwealth v. A.R., 80 A.3d 1180, 1183-1184
(Pa. 2013).
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transition. Father explained his new provider was still “establish[ing] a future
treatment plan[,]” and he had not “gotten to the part of the program where
they will review if I get to step down to biweekly or monthly.” Id. at 56, 63.
Based on all the foregoing factors, we discern no abuse of discretion in the
court’s finding that Child remains dependent.
Accordingly, after a thorough review of the record, the juvenile court’s
opinions, and the parties’ briefs, we conclude that Father’s claims do not merit
relief, and we affirm the court’s March 29, 2021, order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/03/2021
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