J-S53002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF B.T., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
APPEAL OF B.S., MOTHER
No. 1334 EDA 2019
Appeal from the Order Entered May 3, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-CR-0002481--2018
IN THE INTEREST OF B.T., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
No. 1338 EDA 2019
Appeal from the Order Entered May 3, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-CR-0002482-2018
BEFORE: OLSON, STABILE, and NICHOLS, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 17, 2020
Appellant, B.S. (“Mother”), appeals from the May 3, 2019 orders
directing her to stay away from her sister, L.B.. L.B. serves as kinship foster
placement for the two minor children (“Children”) involved in these
consolidated appeals. We vacate the juvenile court’s orders. J-S53002-19
The juvenile court summarized the pertinent facts and procedural
history in its July 9, 2019 opinion:
[Children] have been in care continuously for approximately 7 months with [L.B.]. Mother works at the same place as [L.B.]. [L.B.’s] children and Children attend the same school.
On November 2, 2018, the Department of Human Services [“DHS”] received two reports for this case. The reports were filed in response to an incident involving Children’s Father (“Father”) and Children. The first report was a child protective service report (“CPS”) and the second was a general protective service report (“GPS”). The CPS report alleged that Father inflicted “injury to another person” and the GPS report alleged that Father used “inappropriate discipline” when dealing with Children. The alleged incident was that Father hit one of the Children in the face, and pushed [the] other child to the ground when she was trying to intervene. After further investigation by DHS, the GPS report was validated for “inappropriate discipline.”
On November 5, 2018, a safety plan was entered which allowed Children to return home. The plan also stated that Father was not allowed to have any contact with Children. The DHS worker assigned to the case, Christopher Li, testified that there were concerns that the safety plan was being violated. The violation concerns stemmed from an allegation that Father was maintaining contact with Children. It was contended that Father was sleeping in the home and had cut up the younger child’s clothes. Mr. Li testified that he questioned Mother about the allegation. In response, Mother stated that Father was not having contact with Children, but that Father did cut up the younger child’s clothing.
On December 3, 2018, Children were adjudicated dependent based on a finding that the Children were “without proper care or control, subsistence, education … or other care necessary for [Children’s] physical, mental, or emotional health or morals.” The Mother was allowed the have “Line of Sight/Hearing Supervised visits” at the agency at Children’s discretion. Mother’s single case plan objectives were to gain stable housing and employment, pay the copay for Children’s therapy, do ARC for parenting to make sure that the Children were up to date with
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medical and dental check-ups, and meet with CUA every other week.
Mother is not allowed to interact with Children outside of supervised visits at the discretion of Children. Mother also has a restraining order for her to stay away from [L.B.] At the hearing on February 4, 2019, Mother testified that [L.B.] was trying to provoke her. At that hearing Mother indicated that she felt that [L.B.] had been “aggressive” towards her. Mother also testified that if she and [L.B.] would have to interact going forward, “…it would be problematic.” Following the conclusion of a hearing on May 2, 2019, Mother exerted aggressive behavior towards [L.B.] In response, [L.B.] returned to the courtroom and requested a protective order against Mother.
Based on the foregoing testimony, this court issued a decree entering a dependency court protective order against Mother on behalf of [L.B. and her residence] pursuant to 42 Pa.C.S.A. §§ 6301, 6351.
Trial Court Opinion, 7/9/19, at 1-3 (record citations and some capitalization
omitted).
Mother filed a timely appeal from the juvenile court’s order. She raises
a single assertion of error:
1. The trial court committed an error of law and discretion [sic] by entering a permanent protection order without providing [Mother] due process of law in that an ex parte hearing may be the basis of a temporary order but not a permanent order.
Mother’s Brief at 7.1
To summarize, therefore, the juvenile court issued a protective order in
favor of L.B. after Mother’s alleged aggressive behavior toward L.B. shortly
____________________________________________
1 Mother’s brief is not paginated, but according to the table of contents her question presented appears on page 7.
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after the May 2, 2019 permanency hearing. The court relied on 42 Pa.C.S.A.
§§ 6301 and 63512 of the Juvenile Act, but did not offer specifics as to how
either subsection authorizes entry of a protective order. Regardless, Mother
does not challenge the trial court’s authority to enter the protective order.
Mother’s Brief at 9 (Summary of the Argument). She challenges entry of the
order ex parte and without creation of a record. Id.
The trial court relied on In re M.B., 869 A.2d 542 (Pa. Super. 2005),
wherein this Court explained that due process in a dependency proceeding is
less stringent than in a criminal matter. There, the appellant mother claimed
the trial court deprived her of due process by granting a protective order in
favor of Children and Youth Services (“CYS”) regarding CYS’ confidential court
summary. CYS claimed mother had been providing copies of that document
to witnesses, and CYS requested permission to provide the document to
mother’s attorney rather than mother, to prevent mother from distributing it.
Id. at 545. The trial court granted the protective order. Mother claimed her
inability to provide CYS’ confidential court summary to witnesses deprived her
of due process. Id. at 546.
In assessing mother’s due process interests, this Court wrote:
2 Section 6301(a)(4) provides that one Act’s purposes is to “provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.” 42 Pa.C.S.A. § 6301(a)(4). Section 6351 governs a variety of issues related to the disposition of a dependent child. 42 Pa.C.S.A. § 6351.
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When conducting review, we note that the needs of each situation inform our analysis and our inquiry must then be directed to the questions raised, explored, and decided ... as to what process is due. Additionally, in a dependency case, the liberty interest of [a parent] is not at stake and the risk of erroneous adjudication is so substantially mitigated by safeguards, reviews, and procedures directed toward uniting the family, that due process requires a less didactic approach than in criminal procedures. And, while a dependency proceeding is adversarial in the sense that it places the state in opposition to the parent with respect to the custody of the child ... it does not implicate the liberty interests of the parent or the child as would be the case of a defendant in a criminal action.
Id.
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J-S53002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF B.T., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
APPEAL OF B.S., MOTHER
No. 1334 EDA 2019
Appeal from the Order Entered May 3, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-CR-0002481--2018
IN THE INTEREST OF B.T., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
No. 1338 EDA 2019
Appeal from the Order Entered May 3, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-CR-0002482-2018
BEFORE: OLSON, STABILE, and NICHOLS, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 17, 2020
Appellant, B.S. (“Mother”), appeals from the May 3, 2019 orders
directing her to stay away from her sister, L.B.. L.B. serves as kinship foster
placement for the two minor children (“Children”) involved in these
consolidated appeals. We vacate the juvenile court’s orders. J-S53002-19
The juvenile court summarized the pertinent facts and procedural
history in its July 9, 2019 opinion:
[Children] have been in care continuously for approximately 7 months with [L.B.]. Mother works at the same place as [L.B.]. [L.B.’s] children and Children attend the same school.
On November 2, 2018, the Department of Human Services [“DHS”] received two reports for this case. The reports were filed in response to an incident involving Children’s Father (“Father”) and Children. The first report was a child protective service report (“CPS”) and the second was a general protective service report (“GPS”). The CPS report alleged that Father inflicted “injury to another person” and the GPS report alleged that Father used “inappropriate discipline” when dealing with Children. The alleged incident was that Father hit one of the Children in the face, and pushed [the] other child to the ground when she was trying to intervene. After further investigation by DHS, the GPS report was validated for “inappropriate discipline.”
On November 5, 2018, a safety plan was entered which allowed Children to return home. The plan also stated that Father was not allowed to have any contact with Children. The DHS worker assigned to the case, Christopher Li, testified that there were concerns that the safety plan was being violated. The violation concerns stemmed from an allegation that Father was maintaining contact with Children. It was contended that Father was sleeping in the home and had cut up the younger child’s clothes. Mr. Li testified that he questioned Mother about the allegation. In response, Mother stated that Father was not having contact with Children, but that Father did cut up the younger child’s clothing.
On December 3, 2018, Children were adjudicated dependent based on a finding that the Children were “without proper care or control, subsistence, education … or other care necessary for [Children’s] physical, mental, or emotional health or morals.” The Mother was allowed the have “Line of Sight/Hearing Supervised visits” at the agency at Children’s discretion. Mother’s single case plan objectives were to gain stable housing and employment, pay the copay for Children’s therapy, do ARC for parenting to make sure that the Children were up to date with
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medical and dental check-ups, and meet with CUA every other week.
Mother is not allowed to interact with Children outside of supervised visits at the discretion of Children. Mother also has a restraining order for her to stay away from [L.B.] At the hearing on February 4, 2019, Mother testified that [L.B.] was trying to provoke her. At that hearing Mother indicated that she felt that [L.B.] had been “aggressive” towards her. Mother also testified that if she and [L.B.] would have to interact going forward, “…it would be problematic.” Following the conclusion of a hearing on May 2, 2019, Mother exerted aggressive behavior towards [L.B.] In response, [L.B.] returned to the courtroom and requested a protective order against Mother.
Based on the foregoing testimony, this court issued a decree entering a dependency court protective order against Mother on behalf of [L.B. and her residence] pursuant to 42 Pa.C.S.A. §§ 6301, 6351.
Trial Court Opinion, 7/9/19, at 1-3 (record citations and some capitalization
omitted).
Mother filed a timely appeal from the juvenile court’s order. She raises
a single assertion of error:
1. The trial court committed an error of law and discretion [sic] by entering a permanent protection order without providing [Mother] due process of law in that an ex parte hearing may be the basis of a temporary order but not a permanent order.
Mother’s Brief at 7.1
To summarize, therefore, the juvenile court issued a protective order in
favor of L.B. after Mother’s alleged aggressive behavior toward L.B. shortly
____________________________________________
1 Mother’s brief is not paginated, but according to the table of contents her question presented appears on page 7.
-3- J-S53002-19
after the May 2, 2019 permanency hearing. The court relied on 42 Pa.C.S.A.
§§ 6301 and 63512 of the Juvenile Act, but did not offer specifics as to how
either subsection authorizes entry of a protective order. Regardless, Mother
does not challenge the trial court’s authority to enter the protective order.
Mother’s Brief at 9 (Summary of the Argument). She challenges entry of the
order ex parte and without creation of a record. Id.
The trial court relied on In re M.B., 869 A.2d 542 (Pa. Super. 2005),
wherein this Court explained that due process in a dependency proceeding is
less stringent than in a criminal matter. There, the appellant mother claimed
the trial court deprived her of due process by granting a protective order in
favor of Children and Youth Services (“CYS”) regarding CYS’ confidential court
summary. CYS claimed mother had been providing copies of that document
to witnesses, and CYS requested permission to provide the document to
mother’s attorney rather than mother, to prevent mother from distributing it.
Id. at 545. The trial court granted the protective order. Mother claimed her
inability to provide CYS’ confidential court summary to witnesses deprived her
of due process. Id. at 546.
In assessing mother’s due process interests, this Court wrote:
2 Section 6301(a)(4) provides that one Act’s purposes is to “provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.” 42 Pa.C.S.A. § 6301(a)(4). Section 6351 governs a variety of issues related to the disposition of a dependent child. 42 Pa.C.S.A. § 6351.
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When conducting review, we note that the needs of each situation inform our analysis and our inquiry must then be directed to the questions raised, explored, and decided ... as to what process is due. Additionally, in a dependency case, the liberty interest of [a parent] is not at stake and the risk of erroneous adjudication is so substantially mitigated by safeguards, reviews, and procedures directed toward uniting the family, that due process requires a less didactic approach than in criminal procedures. And, while a dependency proceeding is adversarial in the sense that it places the state in opposition to the parent with respect to the custody of the child ... it does not implicate the liberty interests of the parent or the child as would be the case of a defendant in a criminal action.
Id. at 546–47 (internal citations and quotation marks omitted). We concluded
that mother’s access to the court summary through her attorney and her
ability to examine witnesses based on her knowledge of its contents
sufficiently protected her due process interest. Id. at 547.
Appellant cites In re Penny R., 509 A.2d 338 (Pa. Super. 1986). There,
the trial court entered a Protection From Abuse (“PFA”) order pursuant to the
parties’ agreement.3 Later, without notice to the prohibited party (the father),
the trial court altered the order to remove the father’s visitation rights because
of a petition for emergency placement of the child. Id. at 339. We concluded
the trial court erred: “[H]owever well intentioned the court may have been
[…] a review on the record, necessarily ex post facto, to determine the
correctness of the order, should unquestionably have been conducted.” Id.
3 The statutory provision at issue in Penny R., 35 P.S. § 10185, has since been repealed. The current version of the PFA Act is codified at 23 Pa.C.S.A. § 6101, et seq.
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at 340. We noted that the record contained no evidence or testimony
pertaining to the order, and there was no adequate basis for appellate review,
given that this Court was “provided only with vague innuendos as to why a
restraining order on visitation was issued.” Id. at 340.
We conclude trial court’s reliance on M.B. was misplaced because, while
M.B. noted that the process due to a parent in a dependency case is less than
the process due to a criminal defendant, it did not dispense with due process
entirely as did the trial court here. Moreover, we are not persuaded by the
trial court’s argument that no process is due because its order did not impinge
on any protected liberty interest. The record reveals that Appellant and L.B.
share the same employer. N.T. 2/4/19, at 20-21. Furthermore, Appellant’s
son, of whom she has custody, attends the same school as Children. These
issues could have been addressed and clarified, had Appellant received notice
and an opportunity to be heard.
We observe that our courts have permitted summary punishment for
direct criminal contempt when the conduct leading to the contempt occurs in
the trial court’s presence. In Commonwealth v. Moody, 125 A.3d 1 (Pa.
2015), for example, the defendants were present in the courtroom gallery
during a preliminary hearing when they physically assailed a witness and a
court officer who was called in to restore order. Id. at 3. The trial court
conducted a hearing at which the defendants were counseled but not
permitted to call and cross-examine witnesses. Id. at 4. The court believed
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no development of evidence was necessary because the events in question
occurred in its presence, in accord with 42 Pa.C.S.A. § 4132(3).4 Id. at 4-5.
This Court reversed the trial court, reasoning that the trial court relied on the
testimony of a court officer, and thus it was not sufficiently clear that the
disturbance took place “in the presence of the court” in accord with § 4132(3).
Id. at 5.
The Supreme Court disagreed, noting that it was clear from the record
that the trial judge was facing the gallery when the fight broke out, and that
he personally observed the defendants’ behavior. Id. at 11. More
importantly, for present purposes, the Supreme Court wrote, “courts have
inherent power and statutory authority to impose summary punishment for
direct criminal contempt for willful misconduct that occurs in the presence of
the court and obstructs its fair and orderly process.” Id. at 9; see also
Commonwealth v. Falana, 696 A.2d 126 (Pa. 1997) (upholding a finding of
4 Section 4132(3) provides:
The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
[…]
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.
42 Pa. C.S.A. § 4132(3).
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contempt where the newly-convicted defendant said, “I’ll be out one day,” as
he walked past the victim on his way out of the courtroom).
This case, unlike Moody, does not involve willful misconduct that
occurred in the presence of the court and obstructed its fair and orderly
process. Appellant’s alleged misconduct did not occur in the presence of the
trial court and did not obstruct orderly process. It occurred after the hearing
was over. We have no record of the facts because none was created. We
have only the trial court’s opinion, which states that Appellant exhibited
aggressive behavior toward L.B. after the May 2, 2019 hearing, and that L.B.
returned to the courtroom and requested a protective order. Trial Court
Opinion, 7/9/19, at 3. Because there is no record of the facts that gave rise
to the order on appeal, there is no support for the entry or an ex parte order
with no process under the rationale of Moody.
More pertinent instantly is the rationale of Penny R., in which the record
contained only “vague innuendo” as to the reasons for the order, and therefore
no means of conducting appellate review. Even though that case involved the
PFA, not child dependency, Penny R. teaches that a minimum amount of due
process is necessary to facilitate appellate review. Even in cases of direct
criminal contempt in the presence of the court, such as Moody and Falana,
this Court was able to review the record in assessing the propriety of the trial
court’s action. Here, as in Penny R., the record is inadequate to facilitate
appellate review.
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In summary, the trial court exercised a power not expressly granted to
it by statute or case law, without affording any due process to the subject of
the order, without creating any record to support its action, and without giving
Appellant the opportunity to raise legal objections prior to appeal. We
recognize that the children’s best interest is paramount in dependency cases,
but we do not believe the trial court would have undermined the children’s
best interests by affording Appellant notice and an opportunity to be heard,
either prior to the entry of the order or sometime shortly thereafter, to
facilitate appellate review.
For all of the foregoing reasons, we vacate the trial court’s orders.
Orders vacated.
Judge Nichols concurs in the result.
Judge Olson files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/17/20
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