In the Interest of: E.C., a Minor

• Court: Superior Court of Pennsylvania
• Decided: February 8, 2018
• Docket: 966 MDA 2017
• Status: Unpublished

Opinion

J-A32001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.C., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: YORK COUNTY OFFICE : OF CHILDREN YOUTH & FAMILIES : : : : : No. 966 MDA 2017

Appeal from the Order Entered May 19, 2017 In the Court of Common Pleas of York County Juvenile Division at No(s): CP-67-DP-0000218-2015

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 08, 2018

York County Office of Children Youth and Families (CYF) appeals from

the order entered May 19, 2017, in the Court of Common Pleas of York County,

that, inter alia, terminated the dependency adjudication of E.C., a minor,1

returned legal and physical custody of E.C. to his father, T.C., Sr. (Father),

vacated ab initio the dependency adjudication, directed expungement of the

adjudication, and vacated all prior orders awarding custody or educational

rights to anyone other than Father. CYF contends the trial court erred and

abused its discretion in (1) vacating ab initio the adjudication of dependency

of E.C., directing the dependency order and any findings of dependency be

expunged, and vacating all prior orders awarding custody or educational rights

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 E.C. turned 18 years of age while this appeal was pending in this Court. J-A32001-17

to anyone other than Father, based upon its finding that E.C. was not credible

in his allegations of abuse by his father, and (2) returning legal and physical

custody of a dependent child, E.C., to his father, a resident of Virginia, in

violation of the Interstate Compact for the Placement of Children (ICPC).2 See

CYF’s Brief at 5. Based upon the following, we affirm in part, and reverse in

part.

This dependency case was initiated after CYF received a referral on

September 17, 2015, regarding E.C., due to allegations of physical abuse of

E.C. by Father and drug and alcohol usage by Father.3 On September 24,

2015, CYF filed an application for emergency protective custody. On

September 25, 2015, the Honorable Andrea Marceca Strong granted CYF’s

application, transferring legal and physical custody of E.C., then 16 years of

age, to CYF. See Order for Emergency Protective Custody, 9/25/2015. A

shelter care hearing was held on September 28, 2015, attended by Father and

E.C.’s mother, L.W. (Mother).4 By order dated September 29, 2015, Judge

Strong adopted the recommendation of the Master that E.C. remain in shelter

care. On September 30, 2015, CYF filed a dependency petition, alleging E.C. ____________________________________________

2 See 62 P.S. § 761.

3 See Application for Emergency Protective Custody, 9/24/2015, at 3 ¶1.

4 Mother was initially identified as T.B., but the error was subsequently corrected to reflect her name as L.W. See N.T., 9/28/2015, at 29; Dependency Petition, 9/30/2015, at ¶7.

-2- J-A32001-17

to be a dependent child, pursuant to 42 Pa.C.S. § 6302, due to lack of proper

parental care and control, and also alleging physical abuse of E.C. by Father

based upon the referral received by CYF.5

On November 16, 2015, a dependency hearing was held before Judge

Strong, and Judge Strong adjudicated E.C., finding:

The child 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.

Order of Adjudication, 11/16/2015, at 1, quoting 42 Pa.C.S. § 6302,

“Dependent Child”(1).6 The trial court found that “[a]ll parties present are in

agreement that the child is dependent based on lack of proper parental care

or control,”7 ordered legal and physical custody of E.C. remain with CYF, and

directed E.C. be placed by CYF at United Methodist Home. Id. at 1. The court

further ordered that “[t]he finding of abuse is deferred to a later date and may

be pursued upon praecipe to schedule a hearing being filed …”. Id. at 2.

5The dependency petition alleged Mother was residing in South Carolina. See Dependency Petition, 9/30/2015, at 4 ¶7.

6 At the dependency hearing, the trial court incorporated into the record an October 6, 2015, comprehensive psychological evaluation completed by Dr. Hugh S. Smith, of Hugh S. Smith, Ph.D & Associates, P.C. Dr. Smith recommended that E.C.’s case continue to be managed through CYF and that an out of home placement would benefit E.C. See CYF Exhibit 1 at 11, and N.T., 11/16/2016, at 15.

7 Mother was not present at the hearing. N.T., 11/15/2016, at 2. Mother indicated she was available by phone. Id.

-3- J-A32001-17

In addition, Judge Strong specifically stated on the record that “we only

make the [dependency] finding based on lack of proper parental care based

on the parent/child conflict with [F]ather and the unavailability of [M]other.”

N.T., 11/16/2015, at 17. Before the close of the hearing, Judge Strong

“remind[ed] [M]other of her right to be represented by counsel,” and

“remind[ed] all parties of their right to file an appeal of th[e] decision within

30 days.” Id. at 18. No appeals were filed from the dependency adjudication.

Regular review hearings were held periodically throughout this case.8

On February 29, 2016, CYF filed a motion for modification of placement, to

move E.C. from group home placement at United Methodist Home to shelter

care placement at York County Youth Development Center due to concerns

regarding E.C.’s behavior. On March 1, 2016, CYF’s motion was granted by

the Honorable N. Christopher Menges, and an order was entered continuing

E.C. in CYF’s legal and physical custody for placement in shelter care. On

March 2, 2016, at the permanency review/shelter care hearing, Judge Menges

8See N.T., 1/14/2016 (status review hearing before Jeffrey T. Bizer, Esquire, Juvenile Master); N.T., 3/2/2016 (permanency review hearing before the Honorable N. Christopher Menges); N.T., 6/1/2016 (status review hearing before Judge Menges); N.T., 8/23/2016 (permanency review hearing before Juvenile Master Bitzer); N.T., 2/13/2017 (permanency review hearing before Judge Menges). The November 23, 2016 status review hearing before Judge Menges was cancelled.

Father was present at the hearings on January 14, 2016, March 2, 2016, and August 23, 2016; he was not present at the hearings on June 1, 2016 and February 13, 2017, nor did counsel appear on his behalf at those hearings.

-4- J-A32001-17

ordered E.C. to remain in shelter care. Thereafter, CYF filed a motion for

modification of placement when a group home space became available for E.C.

at Concern Treatment Unit for Boys, effective June 17, 2016. The motion was

granted by Judge Menges by order entered June 15, 2016.

A permanency review hearing was held on August 23, 2016. Relevant

to this appeal, Father advised that the military would be relocating him to Fort

Belvoir, Fairfax County, Virginia, on September 1, 2016. See N.T.,

8/23/2016, at 11. See also id. at 8. At the hearing, the issue of the ICPC9

was discussed as it related to E.C.’s visitation and possible reunification with

Father who would be living outside Pennsylvania. Id. at 9-10.

On October 20, 2016, CYF filed a motion to schedule dispositional

hearing to address E.C.’s out of state and unsupervised visitation with Father.

A hearing was convened on October 27, 2016 on CYF’s motion. On that date,

Father’s new counsel entered her appearance and filed, on behalf of Father, a

motion to terminate dependency or in the alternative for a change of

9 Regarding the ICPC, we note:

The ICPC is a statutory agreement among member states, the District of Columbia, and the U.S. Virgin Islands authorizing them to work together to ensure that children who are placed across state lines receive adequate protection and support services. The ICPC establishes procedures for the placement of children and assigns responsibility for agencies and individuals involved in placing children.

Pennsylvania Dependency Benchbook, at p. 14-9 (Rev. 2014).

-5- J-A32001-17

placement to Father’s home. Father’s counsel requested a continuance, and

the court granted this request. The disposition hearing was continued to be

combined with an already scheduled status review hearing on November 23,

2016, before Judge Menges. See N.T., 10/27/2016, at 2. A subsequent

continuance request was also granted, and the hearing rescheduled to January

12, 2017. Meanwhile, on December 12, 2016, CYF filed a Regulation 7 Form

Order for Expedited Placement Decision Pursuant to the ICPC for purposes of

initiating an Interstate Compact referral for Father in Virginia.

Testimony before Judge Menges began on January 12, 2017, but was

not completed on that date and the hearing was continued for additional

testimony. On January 17, 2017, CYF filed a motion/praecipe to schedule

finding of abuse hearing, which was granted, and a hearing was scheduled for

March 3, 2017, to be combined with the continued hearing on the pending

motions.

On February 13, 2017, a permanency review hearing was held. The

caseworker reported that the ICPC for Mother had been denied “because she

was not cooperative,” and that on January 23, 2017, Father “would be formally

charged by the military on several accounts [sic] of abuse towards [E.C.] and

other individuals.” N.T., 2/13/2017, at 6. The Virginia ICPC referral for Father

was expected to be put on hold as a result of the military charges against him.

See id. at 13. Further evidentiary hearings occurred on March 3, 2017, and

-6- J-A32001-17

May 4, 2017. On May 4, 2017, Judge Menges placed his order and findings of

fact on the record.

Judge Menges adjudged E.C. to be not dependent and, inter alia,

vacated the November 16, 2015, dependency adjudication ab initio, directed

expungement of the dependency order and findings of dependency, and

ordered E.C. returned to Father immediately. The trial judge also vacated any

additional orders that grew out of the dependency adjudication that gave legal

or physical custody, or educational rights or any other rights to anyone other

than Father. In addition, the trial court denied CYF’s request for a finding of

abuse determination against Father. In Findings of Fact, the trial court found

“{E.C.} to be not credible in his allegations that were made on or about

September of 2015 relative to abuse by his father,” and “that no abuse took

place at all in the autumn of 2015 by father against {E.C.}” Order, 5/19/2017,

at 4, 6-7. The trial court’s order with findings of fact was entered on May 19,

2017. This timely appeal followed.10

At the outset, we state our standard of review:

The 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. We review for abuse of discretion.

10CYF filed a Rule 1925(b) statement with its notice of appeal, in compliance with Pa.R.A.P. 1925(a)(2)(i).

-7- J-A32001-17

In addition, we have observed:

In dependency proceedings our scope of review is broad. . . . Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate.

In the Interest of J.M., 166 A.3d 408, 416 (Pa. Super. 2017) (citations

omitted). With regard to questions of law, our standard of review is de novo.

See id.

CYF first argues the trial court committed an error of law and abused its

discretion when it vacated ab initio11 the adjudication of dependency of E.C.,

directed that the dependency order and any findings of dependency be

expunged, and vacated all prior orders awarding custody or educational rights

to anyone other than Father, based upon its finding that E.C. was not credible

in his allegations of abuse by his father. See CYF’s Brief at 18.

CYF acknowledges the court’s purview to terminate an adjudication of

dependency, court supervision and/or jurisdiction, and services through a

county agency. See CYF’s Brief at 21, citing Pa.R.J.C.P. 1631 (“Termination

of Court Supervision”). However, CYF maintains the trial court’s decision “to

wipe the slate clean, is clearly erroneous.” CYF’s Brief, id. at 21. In this

11“The term void ab initio means an action that is void from its inception.” Commonwealth v. Dennis, 695 A.2d 409, 410 n.4 (Pa. 1997), citing Black’s Law Dictionary 6 (6th ed. 1990).

-8- J-A32001-17

regard, CYF asserts, “This appears to be a question of first impression in the

Pennsylvania courts: whether or not the customarily contract-related doctrine

of ‘void ab initio’ to challenge procedural validity applies to court orders in the

child welfare context.” Id. at 21.

Our research reveals that the doctrine of void ab initio has been applied

in dependency cases. In In re Rose, 54 A.2d 297 (Pa. Super. 1947), this

Court held the trial court’s dependency adjudication was void ab initio because

the court had no jurisdiction of the subject matter of the alleged dependent

child where no dependency petition had ever been filed. The Rose Court

opined: “Until a petition was filed alleging that the child was neglected or

dependent, the court had no power to act.” Id. at 298. In addition, in Rose,

no hearing was conducted by the court prior to the adjudication, and no notice

was given to the persons having custody of the child. The Rose Court found

all subsequent orders to be void and concluded:

The proceedings … relating to the custody of Maria Rose, alleged to be a dependent child, although initiated by the lower court with no doubt the best intentions, were pursued in a manner that cannot be sanctioned. The whole proceeding was nonjudicial, void in form and substance, and is ordered to be stricken from the record; costs to be paid by the county of Westmoreland.

Id. at 301. See also Dauphin Cty. Soc. Servs. v. R.J.L., 821 A.2d 632,

635 (Pa. Super. 2003) (affirming trial court’s order that voided orders entered

against parents for support of dependent children after Superior Court ruled

trial court had no jurisdiction to make sua sponte dependency finding).

Therefore, we turn to consider the facts of the present case.

-9- J-A32001-17

Here, pursuant to a dependency petition and having conducted a full

hearing, the trial court adjudicated E.C. dependent on November 16, 2015,

on the sole grounds that E.C. lacked proper parental care and control. These

grounds were agreed to by the parties present at the hearing. CYF had asked

that a finding of abuse be deferred and that the adjudication proceed,12 and

the trial court specified in the adjudication that CYF reserved its right to later

pursue a finding of abuse. Thereafter, no party appealed the dependency

order. Nearly one year later, when Father filed his October 27, 2016 motion

to terminate the dependency adjudication, he sought only to terminate the

dependency adjudication and to have custody of E.C. returned to him. Father

did not request the court to vacate the dependency adjudication or to expunge

the adjudication.13 A hearing on Father’s motion was held before Judge

Menges, the successor judge in this case, who granted Father’s motion and,

as well, denied CYF’s revived request for a finding of abuse.

Based on these facts, we conclude the portion of Judge Menges’ order

vacating E.C.’s dependency order ab initio cannot stand. In the present case,

unlike In re Rose, supra, the trial court clearly had jurisdiction to make the

12 See N.T., 11/16/2015, at 2-3, 16-17.

13 The Pennsylvania Rules of Juvenile Court Procedure provide that, in delinquency cases, a party may file a motion with the court or the court may, sua sponte, commence expungement proceedings. See Pa.R.J.C.P. 170. The Rules contain no similar provision for expungement in dependency cases.

- 10 - J-A32001-17

dependency adjudication based upon the dependency petition filed by CYF.

Furthermore, the Pennsylvania Supreme Court has instructed that judges of

coordinate jurisdiction sitting in the same case should not overrule each

others’ decisions, except

in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed.

Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995). Here, no

“exceptional circumstances” exist that justify departure from the coordinate

jurisdiction rule. In this regard, it bears emphasis that, while Judge Menges

found that E.C. was not credible regarding his claims of abuse by Father in the

autumn of 2015, the issue of child abuse was not the basis of the November

16, 2015 dependency adjudication. Therefore, on this record, we agree with

CYF that Judge Menges erred in ordering sua sponte that the dependency

adjudication of E.C. was “to be considered as though it was never made.”

Order, 5/19/2017, at 2.

Accordingly, we reverse the portion of the May 19, 2017 order vacating

ab initio the adjudication of dependency of E.C., directing the dependency

order and any findings of dependency be expunged, and vacating all prior

orders awarding custody or educational rights to anyone other than Father.

In the second issue, CYF contends the trial court committed an error of

law and abused its discretion in returning legal and physical custody of a

- 11 - J-A32001-17

dependent child, E.C., to his father, a resident of Virginia, in violation of the

ICPC, 62 P.S. § 761.14

By way of background, the ICPC “governs the transfer and continued

supervision of children who are moving between states for the purpose of

adoption, foster care, or institutional placement.” Pennsylvania Dependency

Benchbook, § 3.4.2 at p. 3-4 (Rev. 2014).

CYF relies on 55 Pa. Code § 3130.41(2)(i), which states, “Under the

provisions of the Interstate Compact on the Placement of Children, the county

shall [a]pply for and receive approval from the receiving state prior to sending

a child to a placement in another state.” See CYF Brief, at 30 (emphasis

added) CYF asserts “[t]he practice of the Commonwealth of Pennsylvania is

to apply ICPC to placement with non[-]custodial out-of-state biological

parents.” Id. at 30 (citation omitted). CYF contends the trial court “lost sight

of the best interests of [E.C.], particularly in light of the knowledge that there

were military charges actually pending against Father, and that he was

residing in Virginia and that a referral for ICPC approval had been made by

14As noted in Footnote 1, after this appeal was filed, E.C. reached the age of 18. Therefore, CYF’s contention that the trial court violated the ICPC in returning E.C. to Father, a resident of Virginia, appears to be moot since the juvenile court’s jurisdiction normally ends when the child reaches 18 years of age, unless the child requests the court to retain jurisdiction, and the court determines the child remains under the jurisdiction of the court. See 42 Pa.C.S. § 6302, “Child”(1), (3). See also 42 Pa.C.S. § 6351(f)(8.1). Accordingly, at this juncture, the trial court would not have jurisdiction of E.C.

- 12 - J-A32001-17

CYF but put on hold by the Virginia ICPC office due to those criminal charges.”

Id. at 30-31. We find, however, that the ICPC does not apply here.

Relevant to our review, Article III(a) of the ICPC provides: “No sending

agency shall send, bring or cause to be sent or brought into any other party

state, any child for placement in foster care or as a preliminary to a

possible adoption unless the sending agency shall comply with each and

every requirement set forth in this article.” 62 P.S. § 761 (emphasis added).

Article II(d) of the ICPC defines “placement” as

the arrangement for the care of a child in a family, free or boarding home, or in a child caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.

Id. Furthermore, Article V(a) states, in part:

The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have if the child had remained in the sending agency’s state until the child is adopted, reaches majority, becomes self- supporting, or is discharged with the concurrence of appropriate authority in the receiving state. … The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement.

Id.

Here, the trial court concluded that “it’s in [E.C.’s] best interest for him

to [be] returned to the father,” and that “there has not been any evidence

- 13 - J-A32001-17

that there will be a safety concern for [E.C.] to return to his Father.”15

Therefore, the trial court terminated the dependency adjudication and ordered

legal and physical custody of E.C. returned to Father, a resident of Virginia,

immediately. Under these circumstances, we find trial court’s order did not

violate the ICPC since, when the trial court terminated the dependency

adjudication and returned E.C. to Father’s custody, the court ended its

jurisdiction and supervision of E.C. and, therefore, Father was not a

“placement” under the ICPC.

Accordingly, we reverse the portion of the May 19, 2017 order vacating

ab initio the adjudication of dependency of E.C., directing the dependency

order and any findings of dependency be expunged, and vacating all prior

orders awarding custody or educational rights to anyone other than Father.

Otherwise, we affirm.

Order affirmed in part, reversed in part. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/08/2018

15 Order, 5/19/2017, at 7.

- 14 -