DocketNumber: No. 00636
Judges: Cirillo, Hester, Tamilia
Filed Date: 7/26/1991
Status: Precedential
Modified Date: 10/19/2024
These are consolidated appeals from a June 7, 1990, Order, which found the child, A.S., to be dependent and placing her in foster care, and a December 31, 1990, Order,
On June 6, 1990, Children and Youth Services (CYS) received custody of sixteen year old A.S., daughter of appellants, on an emergency basis due to a severe conflict between the child and both parents. On June 7, 1990, the parents stipulated to the facts on which the trial court based its dependency finding and the child was placed in foster care. On July 28, 1990, the parents appealed the initial dependency finding of the court and petitioned for a juvenile dependency determination. At a September 6, 1990, hearing, the court found A.S. continued to be dependent and in need of foster care. The parents appealed the June 7, 1990, Order (No. 00636 Harrisburg, 1990).
At the six-month judicial review hearing held December 19, 1990, the Master found, inter alia, it was in A.S.’s best interest to remain in foster care until high school graduation. On December 31, 1990, the trial court entered an Order affirming the Master’s findings. The parents appealed this Order (No. 00069 Harrisburg, 1991). These appeals have been consolidated for our review.
Appellants now argue the following: 1) the trial court’s Order must be vacated because the court adjudicated the child dependent without sufficient evidence of record to meet the “clear and convincing evidence” standard; 2) the parents’ prior counsel was so ineffective that he undermined the truth determining process such that no reliable adjudication of dependency could have taken place; 3) appellants’ right to fundamental fairness and due process was denied by the trial court because its dependency Order was exclusively the product of the Master’s extensive and routine ex parte contact with only one party (appellee) to the multi-party litigation; 4) finally, there is sufficient cause for a rehearing before a judge because the motion for rehearing averred procedural irregularities and averred the Master failed to advise appellants of their right to have the matter heard by a judge.
Court appointed counsel for the child adopts appellee’s arguments in full and adds that under no circumstances does the child want to return to the custody of her mother and father.
Our review of this case begins with a determination of whether the trial court properly exercised its jurisdiction for the purpose of entering an adjudication of dependency; second, whether the disposition was in the best interest of the child and clear necessity required placement of the child out of the home; and third, whether ineffectiveness of counsel so impaired the proceeding that, despite the record, the truth finding process was so impaired as to require reversal.
The thrust of appellants’ complaint is that the Order of adjudication of dependency entered June 7, 1990, and filed June 11, 1990, was invalid as it was based upon insufficient evidence. This Order was based on a stipulation in open court, entered by the parties, based on the extensive factual statement contained in the petition charging dependency filed within 24 hours of the time the child was taken into custody by CYS. The petition contained sufficient facts of the child’s emotional and physical condi
The stipulation is based on the allegations insofar as they set forth a severe parent-child conflict and the fact that his Honor at this point in time is quite disturbed, and this leads to the stipulation.
Insofar as I must say for the record, Your Honor, and insofar as some of the specific factual allegations go, I must say I can’t agree to them, can’t admit them, but I don’t think any useful purpose would be served in an adversary proceeding style at this point, as long as we are agreed on what is essential and on stipulation which Mrs. Weeks has properly stated.
(T.T., 6/7/90, p. 5.) It is, therefore, not clear that the facts stated in the petition actually formed the basis for the stipulation to enter an Order finding the child dependent, and proceeding forthwith, without further testimony to enter a disposition pursuant to section 6351, Disposition of dependent child. It appears that most of the parties necessary for a proper hearing on the child’s dependency were
We, therefore, hold the adjudication of dependency was flawed and, although this adjudication was not appealed in a timely fashion, the subsequent appeal of the dispositional review permitted the issue to be raised on the basis of ineffective counsel. See Matter of J.P., 393 Pa.Super. 1, 573 A.2d 1057 (1990).
The second procedural error that may not pass unnoticed is the failure of the Master to inform the parents they had a right to proceed before a judge. Section 6305, Masters, provides:
*472 (b) Hearings before masters.—The court of common pleas may direct that hearings in any case or class of cases be conducted in the first instance by the master in the manner provided in this chapter. Before commencing the hearing the master shall inform the parties who have appeared that they are entitled to have the matter head by a judge. If a party objects, the hearing shall be conducted by a judge.
This section appears to be mandatory but unless contested in a timely fashion, and not for the first time on appeal, the failure to so instruct is deemed to be waived.
(d) Rehearing before judge.—A rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations become the findings and order of the court when confirmed in writing by the judge.
42 Pa.C.S. § 6305(d). Failure to inform the parties they are entitled to a hearing before a judge is subject to review pursuant to section 6305(d), but is waived if not. raised in a timely fashion pursuant to that section.
Because of our holding we must remand this case for an adjudicatory hearing and dispositional hearing, if required. So that appellants are not unduly exulted by our ruling, we must add that if properly presented evidence conforming to the allegations in the petition is presented in open court, the adjudication should be the same. The parents must understand that a 17-year old child must be controlled by good example, love and respect; discipline alone will not resolve severe conflicts between parent and child. Refusal to cooperate in family counselling and distancing themselves from the child by refusing visitation will harden the antagonisms and make it impossible to obtain a reconciliation.
Since time is of the essence, it is directed that the adjudicatory hearing on the petition be set within 30 days of the return of the record to the court.
Order of adjudication vacated and case remanded for further proceedings consistent with this Opinion.
Jurisdiction relinquished.