In the Int. of: P.T.G., Appeal of: M.G.

J-S13005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.T.G., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: M.G., MOTHER
No. 1636 MDA 2021
Appeal from the Dispositional Order Entered November 18, 2021
In the Court of Common Pleas of Northumberland County
Juvenile Division at No.: CP-49-DP-0000083-2011
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 09, 2022
Appellant, M.G. (“Mother”) appeals from the November 18, 2021
dispositional order adjudicating P.T.G. (“Child”), her minor child, dependent,
removing him from the home of Mother and C.S., his Maternal Grandmother
(“Maternal Grandmother”), placing Child in foster care, and ordering
supervised visitation with a goal of reunification. We affirm in part and vacate
in part.
Northumberland County Children and Youth Services (“CYS” or the
“Agency”) has been involved with Child’s family since 2011, when he was four
years old. Child was first adjudicated dependent on November 30, 2011 and
placed in legal custody of CYS. He remained in placement until February of
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* Former Justice specially assigned to the Superior Court.
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2013, after which Child and Mother lived with Maternal Grandmother and
Child’s maternal grandfather, who has since passed away. On December 27,
2016, CYS received another referral when Mother overdosed on heroin in the
family home. CYS first received concerns about truancy from Child’s school
in November of 2019, and again on March 5, 2020. On February 18, 2021,
CYS met with Maternal Grandmother regarding Child’s failure to complete
schoolwork and his failure to login to remote learning sessions. Another
meeting occurred on February 23, 2021 regarding, among other things, Child’s
pending failure of several of his seventh-grade courses. CYS filed a
dependency petition on March 18, 2021 alleging that Child was without proper
parental care or control, and that he was habitually truant from school. The
trial court conducted a hearing on May 6, 2021 and declined to adjudicate him
dependent or remove him from the home.
The instant matter arose from an October 13, 2021 referral informing
CYS that Child had completely failed to attend school during the 2021-2022
school year. N.T., 11/10/21, at 16. Several subsequent attempts to contact
the family were unsuccessful. Id. at 16-18. On November 9, 2021, CYS
personnel and a local police officer traveled to Maternal Grandmother’s home,
where Mother and Child both lived. Initially no one answered the door, but
Mother eventually arrived as a passenger in a car. Id. at 18. She was
slumped over in the back of the car, and after exiting the vehicle she exhibited
slurred speech and difficulty in standing. Id. at 18; N.T. 11/18/21, at 13.
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Mother claimed she had just come from a methadone clinic. N.T 11/18/21, at
23. While Mother was present, the CYS caseworker was able to contact
Maternal Grandmother—Child’s legal guardian—by phone. N.T. 11/10/21, at
18. Maternal Grandmother claimed to be shopping in Selinsgrove, but the
police officer heard voices from inside the home. Id. at 18-19; N.T. 11/18/21,
at 16-18. Eventually, Maternal Grandmother came to the door with Child. Id.
She was unable to provide any verification that Child was enrolled in any cyber
school or private school. N.T. 11/10/21, at 18-19; N.T. 11/18/21, at 19-20.
Also, Grandmother spoke of difficulties in her life stemming from her
deteriorating mental and physical health and the recent death of her husband,
Child’s grandfather. N.T. 11/10/21, at 19; N.T. 11/18/21, at 16.
On November 9, 2021, CYS received a verbal order granting them
physical custody of Child. N.T. 11/10/21, at 19-20. A shelter care hearing
took place on November 10, 2021, and the trial court granted CYS’s petition
for protective custody. Id. at 30-31. CYS filed a dependency petition on
November 12, 2021, alleging that Child was without proper parental care or
control.
At the November 18, 2021 hearing on the petition, school officials
confirmed Child’s total absence from school during the Fall of 2021. N.T.,
11/18/21, at 28. Child’s school received nothing regarding Child’s enrollment
in any other school until a November 12, 2021 request from Milton Area School
District. Id. at 46. Child failed two subjects as a seventh grader the previous
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year and never completed a required summer remedial program. Id. at 29-
32, 44-45. Thus, he would have had to repeat seventh grade when he
returned. Id. at 50. The principal confirmed that truancy letters had been
sent on October 26, 2021 and November 9, 2021. Id. at 48. A school
attendance improvement meeting between Mother, Maternal Grandmother,
and school officials occurred on November 15, 2021, just before the hearing.
Id. at 43, 50. Otherwise, the truancy proceeding had gone no further.
Rather, the school referred the matter to CYS and the local police, resulting in
the welfare check on November 9, 2021.
At the conclusion of the hearing, the trial court entered the order on
appeal. Mother filed this timely appeal in which she presents four questions
for our review:
1. Whether the trial court erred or abused its discretion by
adjudicating [Child] dependent?
2. Whether the trial court erred or abused its discretion by
allowing the dependency petition to be amended?
3. Whether the trial court erred or abused its discretion by
removing [Child] from the physical custody of [Mother]?
4. Whether the trial court erred or abused its discretion by
ordering supervised visitation[.]?
Mother’s Brief at 2.
We conduct our review 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 the
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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).
The Juvenile Act defines dependent child, in relevant part, as follows:
“Dependent child.” A child who:
(1) 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 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;
[…]
(5) while subject to compulsory school attendance is
habitually and without justification truant from school;
42 Pa.C.S.A. § 6302, Dependent child. “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.” E.B., 83
A.3d at 431. “A determination 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[.]”
Id. “The 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.” Id.-5-
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For analytical clarity we begin with Mother’s second argument, which
challenges the trial court’s decision, during the November 18, 2021 hearing,
to grant the Guardian Ad Litem’s (“GAL”) oral motion to amend the
dependency petition. The Agency’s dependency petition was a partially
preprinted form with a checklist quoting verbatim the statutory bases for
dependency under § 6302. CYS checked the box next to lack of parental
control (subsection one of the statutory definition) but did not check the box
next to habitual truancy (subsection five of the statutory definition). Because
of this, Mother’s counsel lodged an objection and asked the trial court to
exclude all of the truancy evidence as irrelevant. N.T. 11/18/21, at 55.
Initially, the trial court agreed and sustained the objection. Id. In response,
the GAL moved to amend the petition, arguing that all parties were on notice
that Child’s absence from school was at issue—indeed that was the reason for
the October 13, 2021 referral that culminated in the dependency hearing. Id.
at 57. The Agency did not join in the GAL’s motion and argued the GAL had
no authority to amend the Agency’s petition:
For full context, we quote the exchange among counsel:
[GAL]: Your Honor, I would, as the Guardian Ad Litem, based
upon the hour’s worth of testimony that we’ve heard, I
would ask that the dependency petition be modified to
include an allegation under Paragraph 5 which the parties
were on notice of. Everybody thought that box five was
checked about compulsory school attendance.
[CYS Counsel]: I don’t –
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[GAL]: This testimony was gone over in depth at the shelter care.
So I think – I think everybody was on – everyone thought it
was part of the petition. So I’d ask that it be modified to
include that.
[CYS Counsel]: And I’m not going to allow for my petition to be
modified. I mean I don’t think you can modify what I filed.
We are here because this child lacks proper parental care
and control. It’s not – yes, the child was not attending
school. If everybody wants to stipulate to that, that’s fine.
I’m not the one that’s – was asking about about [sic] –
pardon me?
[Child’s Counsel]: The school just filed the – for the safe program
– for the safe meeting. They just did that.
[CYS Counsel]: But he still wasn’t attending. Whether or not the
school did its job or not is not […] the issue here.
[…]
[Maternal Grandmother’s Counsel]: The reason that the initial
referral came was for truancy. That has been testified in
this hearing. If the agency is not going forward on that
ground, then why are they reviewing cases removing kids
because of truancy?
Southern Columbia – I mean regardless of what is true
Southern Columbia did not follow the correct truancy
procedure by statute. […]
Again they have to start with this compulsory school
attendance improvement plan meeting. They did not do
that. So the whole case essentially has begun over a
truancy and the child not going to school; and even if we
don’t even dispute that he has not been going to school, the
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procedure that needs to be followed by statute[1] was not
followed –
[CYS Counsel]: By the school.
[Maternal Grandmother’s Counsel]: Yes.
[CYS Counsel]: That has nothing to do with the agency. The
agency – failing to get an adequate education for a child is
a child welfare category, and it doesn’t necessarily mean
that it goes to – that it falls under your definition of what
the school must do for truancy.
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1 Maternal Grandmother’s counsel refers to 24 P.S. § 13-1333.1 of the Public
School Code. § 13-1333.1, titled “Procedure by school when child habitually
truant,” which provides in relevant part as follows:
(a) When a child is habitually truant and under fifteen (15) years
of age at the time of referral, the school:
(1) Shall refer the child to either of the following:
(i) A school-based or community-based attendance
improvement program.
(ii) The county children and youth agency for services or for
possible disposition as a dependent child under the provisions of
42 Pa.C.S. Ch. 63 (relating to juvenile matters).
(2) May file a citation in the office of the appropriate judge
against the person in parental relation who resides in the same
household as the child.
[…]
(d) When referring a habitually truant child to the
county children and youth agency or filing a citation with
the court because a child has been habitually truant, the
school shall provide verification that a school attendance
improvement conference was held.
24 P.S. § 13-1333.1(a), (d) (emphasis added). Given our disposition in the
main text, we need not consider the effect of the school district’s compliance,
or lack thereof, with these dictates.
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[…]
[CYS Counsel]: Failure to get the child an education is neglect.
That’s the parental responsibility whether or not the school
did what they were supposed to do or not. The fact of the
matter is that this child has not gone to school for it’s going
on two years, but has not been at all, and has not registered
until when the agency received custody, and they went up
and registered him in Milton because that’s where he’s
staying right now.
So [Mother] and [Maternal Grandmother] did nothing. And
that is a component of our case regarding not having proper
parental care or control.
Id. at 56-59.
Despite CYS counsel’s statement that it did not wish to amend its own
petition, the trial court granted the GAL’s motion to amend. Id. at 60. Mother
argues that the trial court erred because the GAL was not the proper party to
move for amendment. The GAL argues that the amendment was proper,
noting that the applicable procedural rule is not specific as to who may amend
a petition:
A. Amendment.
(1) Mandatory. The court shall allow a petition to be amended
when there is a defect in:
(a) form;
(b) the description of the allegations;
(c) the description of any person or property; or
(d) the date alleged.
(2) Discretionary. Absent prejudice to any party, the court may
allow a petition to be amended if the petition alleges a different
set of events or allegations, where the elements or matters of
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proof by any party are materially different from the elements or
matters of proof to the allegation originally petitioned.
Pa.R.J.C.P. 1334(A).
Rule 1334(A)(2), the GAL notes, is not specific as to the proper movant
for an amendment. Thus, she believes her motion was proper because Rule
1334(A)(2) does not exclude amendment of a dependency petition by a non-
filing party. We find this argument unavailing, however, because the Rules of
Juvenile Procedure are very specific as to who may file a dependency petition.
Rule 1330, which governs the filing of dependency petitions, permits the
county agency to file a dependency petition within 24 hours of a shelter care
hearing. Pa.R.J.C.P. 1330(A)(2). The official comment to Rule 1330 explains,
“paragraph (A)(2) requires that the county agency file a petition. Any other
person, other than the county agency, is to file an application to file a petition
under Rule 1320.” Pa.R.J.C.P. 1330, cmt. Because the instant petition was
filed by the Agency in accord with Rule 1330, we discern no valid basis for
permitting the GAL to amend it. Any party wishing to file a dependency
petition on grounds other than those specified in the Agency’s petition would
have had to proceed under Rule 1320.
Based on the foregoing, the trial court erred in granting the GAL’s
motion to amend the Agency’s petition over the Agency’s objection. We
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therefore analyze the trial court’s adjudication of dependency2 based on the
grounds specified in the Agency’s petition—lack of parental care or control.3
Thus, we turn to Mother’s first assertion of error. Mother’s argument
that the trial court erred in adjudicating Child dependent builds on her
argument that the trial court erred in granting the GAL’s motion to amend.
She claims a procedural due process violation because Child was adjudicated
dependent based on allegations not contained in the petition. Mother cites In
re R.M., 790 A.2d 300, 306 (Pa. 2002), wherein our Supreme Court held that
the variance between the allegations in the petition and the proofs offered at
the hearing violated due process. The R.M. Court wrote as follows:
Although by design juvenile proceedings are characterized
by a degree of informality and flexibility, where constitutionally
protected interests are at stake, the Due Process Clauses of the
United States Constitution impose a requirement of fundamental
fairness. See U.S. CONST. amends. V, XIV § 1[.] While due
process requirements are themselves flexible and non-technical,
they subsume a core demand for adequate notice provided
sufficiently in advance of a deprivation proceeding so as to afford
a reasonable opportunity to prepare a defense.
Id. at 304-05 (some citation omitted). Parents have a due process interest
in the care and custody of their children. Id. at 304 n.8. Our Supreme Court
concluded,
[i]n light of the gravity of the parental interests involved and the
limited imposition upon the government in terms of identifying
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2 The trial court adjudicated Child dependent for both lack of parental care or
control and habitual truancy.
3 We note with disapproval that the Agency has not filed an appellate brief.
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factual circumstances of which it must have some awareness and
since the primary objective of notice is to ensure the opportunity
of a meaningful hearing [...] we believe that reasonable factual
specificity is required in the dependency setting.
Id. at 305.
Mother argues an improper variance between the petition and the proofs
in this case, because the petition alleged lack of parental care or control and
the proofs centered on Child’s truancy. We disagree, and discern no improper
variance here. Mother seemingly assumes that her success on her argument
against the amended petition will lead to her success on her procedural due
process argument, but this is not so. Subsection (1) of the statutory definition
of dependent child provides that dependency exists where the child “is without
proper parental care or control, subsistence, [or] education as required by
law[.]” 42 Pa.C.S.A. § 6302, Dependent child (1) (emphasis added). Thus,
the statutory definition of dependency, insofar as it addresses a child’s
educational needs, is not limited in scope to truancy issues under subsection
five. The Agency’s November 12, 2021 dependency petition quotes subsection
one verbatim, and the Agency checked the box indicating it was proceeding
under that subsection. Mother was therefore on notice that Child’s educational
needs were at issue, both from the express allegations in the petition itself
and from the events that preceded it. We discern no procedural due process
violation.
Turning to the merits, the record demonstrates that Child’s total failure
to attend school during what would have been his eighth-grade year was an
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issue, and all parties were well aware of it. The record also demonstrates that
Child’s attendance issues went at least as far back as February of 2020. But
Child’s educational issues were broader than that. During Child’s 2020-2021
seventh-grade year, he failed two courses. Child then failed to complete
summer remedial work that could have allowed him to move forward to eighth
grade for the 2021-2022 school year. The Agency’s repeated attempts to help
the family address these issues were futile. Mother’s argument is dependent
on the alleged lack of due process. She does not, and seemingly cannot,
argue that she properly attended to Child’s educational welfare. We discern
no abuse of discretion in the trial court’s finding, by clear and convincing
evidence, that Child’s educational needs were going unmet. In summary, all
parties were on notice that the Agency was proceeding under subsection one
of the statutory definition of dependent child, and the adjudication of
dependency was proper thereunder.
In her next question presented, Mother argues that the trial court erred
in ordering Child removed from her physical custody. This argument builds
on Mother’s contention that her due process rights were violated. We reject
this argument based on our analysis above.
Finally, Mother argues that the trial court erred in limiting her visitation
with Child. Mother cites to cases holding that reduction or cessation of
visitation rights is appropriate only where such visits pose a “grave threat” to
the child. She cites In re C.J., 729 A.2d 89 (Pa. Super. 1999), for the
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proposition that “parental visitation is usually not denied or limited [where the
goal is reunification] unless visitation with the parent poses a grave threat to
the child.” Id. at 95. In C.J., the parents were incarcerated in state
correctional institutions far distant from their children’s foster homes. The
trial court restricted visitation to once every six months, to coincide with
parents’ appearances for dependency review hearings. Id. at 92. This Court,
reasoning that the parents were to blame for their criminal convictions and
that the state was under no obligation to transport them long distances for
child visits, affirmed. Id. at 96-97.
C.J., as is obvious, involved circumstances distinct from the instant
case, and it does not advance Mother’s argument. Here, the trial court
ordered no less than one hour per week of supervised visitation between
Mother, Maternal Grandmother, and Child. Order, 11/22/21, at 2. Mother
does not acknowledge the general rule, described in C.J., that “[t]he polestar
and paramount concern in evaluating parental visitation, in dependency as
well as non-dependency situations, is the best interests and welfare of the
children.” Id. at 94. Mother does not explain how the trial visitation schedule
was not in Child’s best interest, nor does she explain why the visitation
schedule constitutes so severe a restriction as to require application of the
“grave threat” standard. We observe, for example, that the Pennsylvania
Code provides that county agencies “shall provide opportunity for visits
between the child and parents as frequently as possible but no less
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frequently than once every 2 weeks at a time and place convenient to the
parties and in a location that will permit interaction[….]” 55 Pa. Code. 3130.68
(emphasis added). We are cognizant that this provision governs county
agencies but is not binding on reviewing courts. C.J., 729 A.2d at 94.
Regardless, § 3130.68, in condoning bi-weekly rather than weekly visitation,
undermines Mother’s argument that the visitation schedule was unlawfully
restrictive. Because Mother’s final argument finds no support in the law she
cites, it fails.
In summary, we have concluded that the trial court erred in permitting
the GAL to amend the Agency’s dependency petition to include an allegation
of habitual truancy. We therefore vacate the order of disposition insofar as it
is based on child’s habitual truancy under subsection five of the statutory
definition. 42 Pa.C.S.A. § 6302, Dependent child, (5). Because Mother’s other
arguments lack merit, we affirm the order of disposition insofar as it was based
upon an adjudication of dependency under subsection one of the statutory
definition. 42 Pa.C.S.A. § 6302, Dependent child (1).
Order of disposition affirmed in part and vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/09/2022
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