In the Interest of: K.G., A Minor, Appeal of: C.G.

Superior Court of Pennsylvania

In the Interest of: K.G., A Minor, Appeal of: C.G.

Superior Court of Pennsylvania·Decided February 1, 2018·No. 1307 WDA 2017·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA :

:

APPEAL OF: C.G., NATURAL FATHER :

:

: No. 1307 WDA 2017

Appeal from the Order Dated August 15, 2017 in the Court of Common Pleas of Bedford County Orphans' Court at No(s): CP-05-DP-0000048-2017

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.** MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 1, 2018 Appellant, C.G. (“Father”), files this appeal from the order1 of the Bedford County Court of Common Pleas, adjudicating his minor daughter, K.G. (“Child,” born September 2007), dependent pursuant to 42 Pa.C.S.A. § 6302. Child remained in the legal custody of Bedford County Children and Youth

1 This order, dated August 15, 2017, was stamped filed and docketed by Bedford County’s Prothonotary’s Office on August 25, 2017. There is no notation on the docket or otherwise that notice was ever given and that the order was entered for purposes of Pa.R.C.P. 236(b). See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding that “an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given”); Pa.R.A.P. 108(a) (entry of an order is designated as “the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.C.P. 236(b)”). However, it would be a waste of judicial resources to remand the matter solely for the filing of Rule 236(b) notice. Thus, in the interest of judicial economy, we reach the merits of the case. We caution the Prothonotary’s Office as to compliance with these rules.

* Former Justice specially assigned to the Superior Court. ** Retired Senior Judge assigned to the Superior Court.

Services (“CYS”) and was placed with her maternal grandparents. We vacate the dependency order and remand for a new adjudicatory hearing.

Since 2013, CYS has been involved with the welfare of Child, who was in the custody of her mother, C.W. (“Mother”) and Mother’s husband (“Stepfather”). The couple also had the custody of Child’s half-sibling, C.S. CYS had received information about Mother’s home that reported deplorable home conditions, lack of food in the home, lack of electricity, no running water, poor personal hygiene, domestic violence between Mother and Stepfather, and drug and alcohol abuse by both Mother and Stepfather.

CYS attempted to provide Mother with aid on multiple occasions during these years.2 In March 2017, CYS provided the couple with a dumpster to clean out garbage from the home, but the couple never utilized it. In May 2017, Mother told CYS her family was moving to Fulton County. However, CYS could not locate the family in Fulton or Bedford County for an extended period of time.

On August 2, 2017, CYS received another report that Mother’s home had deplorable conditions including sewage backed up in the yard, no electricity, and no running water. The report indicated that Mother and Stepfather had not paid the landowner any rent since January 2017. It appeared that the children were staying with family members for the summer

months, but were to return to Mother’s home before school started.

2 The complete factual history of CYS’s involvement in this case has not been fully documented in the record.

On August 3, 2017, a caseworker attempted to visit the home to assess the condition of the home and discuss the reported conditions with the parents; however, Stepfather refused to allow the caseworker to speak to Mother or to enter the residence. The caseworker smelled sewage in the air when she exited her vehicle and walked on the property.

On August 4, 2017, CYS filed an emergency order for protective custody.

The lower court granted this order and transferred physical custody of Child to Father, who resides in Maryland and has exercised periods of partial custody of Child. On August 7, 2017, a shelter care hearing was held at which Father was present. The trial court granted a continuance until August 10, 2017 for further investigation of Mother’s home by CYS. Father indicated that he would not be able to return that week, but clearly indicated he wished to pursue custody of Child. In an order dated August 10, 2017 and entered August 14, 2017, physical custody was maintained with Father.

Thereafter, CYS filed a dependency petition on August 11, 2017, and an adjudicatory hearing was scheduled for August 15, 2017. At this hearing, the court adjudicated Child dependent.3 The court further maintained legal custody with CYS, but transferred physical custody to maternal grandparents. Father was not present on August 15, 2017 at the adjudicatory hearing.4 On

3 Throughout the dependency proceedings, Child was represented by a guardian ad litem.

4 We note that Father filed for custody of Child and a hearing was scheduled for December 14, 2017. Notes of Testimony (“N.T.”), 8/7/17, at 3, 5.

September 11, 2017, Father, through counsel, filed a notice of appeal, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In lieu of an opinion, by order dated October 17, 2017, and entered October 18, 2017, the trial court referred this Court to the transcript for purposes of Rule 1925(a).

On appeal, Father raises the following issues for our review:

A. Whether the lower court erred and abused its discretion by proceeding with the adjudicatory hearing, as the Appellant did not have proper notice of the hearing, and was not aware of the proceeding?

B. Whether the lower court erred and abused its discretion by adjudicating the minor child dependent, as the non-custodial parent was ready, willing, and able to care for the child?

Father’s Brief at 4.5 At the outset, our standard of review for dependency cases is 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 lower court’s inferences or conclusions of law.

Accordingly, we review for an abuse of discretion.

In re R.J.T., 608 Pa. 9, 26, 9 A.3d 1179, 1190 (2010) (citations omitted); see also In re L.Z., 631 Pa. 343, 360, 111 A.3d 1164, 1174 (2015).

Regarding the portion of Section 6302 that is pertinent to the present case, our Court has stated:

5 Notably, Child’s guardian ad litem, counsel for CYS, and counsel for Mother all filed letters indicating they would not submit briefs in this matter.

[T]o adjudicate a child dependent, a trial court must determine, by clear and convincing evidence, that 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. 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.

42 [Pa.C.S.A.] § 6302. “Clear and convincing” evidence has been defined as testimony that is “so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997) (citation omitted).

In accordance with the overarching purpose of the Juvenile Act “[t]o preserve the unity of the family wherever possible,” see 42 [Pa.C.S.A.] § 6301(b)(1), “a child will only be declared dependent when he is presently without proper parental care and when such care is not immediately available.” In re R.T., [ ] 592 A.2d 55, 57 (Pa.Super. 1991)

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