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A.M. AND P.M. MINORS. APPEAL DOROTHY M. AND JAMES M. (08/20/87)

filed: August 20, 1987.

IN RE A.M. AND P.M. MINORS. APPEAL OF DOROTHY M. AND JAMES M.


Appeal from the Order entered December 11, 1986 in the Court of Common Pleas of Delaware County, Juvenile Division, No. JV No. 20587.

COUNSEL

Anne Vaughan, Media, for appellants.

Joyce A. Monaco, Media, for appellees.

Mcewen, Tamilia and Hoffman, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 518]

Appellants appeal from an Order entered by the court below on December 11, 1986, which approved and adopted a master's determination that appellants' two children, A.M. and P.M., were dependent and which placed legal and physical custody of the children with Children and Youth Services of Delaware County (CYS) retroactive to August 14, 1986. Appellants filed an appeal with this Court on December 26, 1986, but also filed exceptions with the court below. At a hearing on the exceptions on January 28, 1987, Judge Robert A. Wright advised appellants' counsel that she could not have her exceptions heard while her appeal was pending. Counsel chose to withdraw her exceptions and await the outcome from this Court. We affirm the lower court's Order.

In his Opinion, the trial judge takes the position that there should be no appeal unless the party who is dissatisfied with the decision of a master has requested a rehearing (Slip Op., Wright, R., 2/4/87, pp. 2, 4, 5). This is not contemplated by the statutory scheme. The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., provides for a hearing to be held before a master, instead of a judge, if there is no objection made by any party (42 Pa.C.S.A. 6305(b)). "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.A. § 6305(d).) The section clearly does not require that exceptions be filed (as in the divorce and support rules) nor that a rehearing must be requested before an appeal can be taken from a court-approved master's determination.

The use of masters in family related cases has become quite extensive -- in divorce proceedings, Pa.R.C.P. 1920.51, Hearing by the Court. Appointment of Master. Notice of Hearing and Pa.R.C.P. 1920.53, Hearing by Master. Report, and in support proceedings, Pa.R.C.P. 1910.10, Alternative Hearing Procedures, Pa.R.C.P. 1910.11, Office Conference.

[ 365 Pa. Super. Page 519]

Subsequent Proceedings. Order and Pa.R.C.P. 1910.12, Office Conference. Hearing. Record. Exceptions. Order. In each of the above, there is a provision for written exceptions to be filed within a ten-day period which, for support cases, will result in either a hearing de novo by the court, Pa.R.C.P. 1910.11 (f), (g) and (i), or arguments on the exceptions, Pa.R.C.P. 1910.12(e) and (g), followed by a final appealable Order. In divorce cases, it is provided by Pa.R.C.P. 1920.55, Master's Report. Notice. Exceptions. Final Decree, that (a) exceptions must be filed within ten days of notice of filing of the master's report, (b) if no exceptions are filed, the court shall review the report and if approved, shall enter a final decree and (c) if exceptions are filed, the court shall hear argument and enter an appropriate final decree. In each of the procedures, it is clear there is no alternative to proceeding except as detailed by the rules; failure to do so results in a waiver of any alleged error for appeal purposes. No similar provisions are contained in the Juvenile Act, § 6305(b). The failure of the act to specifically require exceptions or to mandate a review by the court, instead leaving this within the trial court's discretion, would appear to obviate review as a mandatory part of the post-adjudication procedure, such as required in support and divorce actions. We also point out that the rules explicitly exempt custody and paternity proceedings from hearings by masters. Pennsylvania Rules of Civil Procedure 1920.51(a)(2)(iii) states: "No master may be appointed in a claim for custody or paternity."

It has been the time-honored and universal rule that where custody of children is in issue, the decision may only be made by a judge. (See 48 P.S. § 92 Judges to decide disputes as to children's custody.) The departure in juvenile cases appears to be in response to the heavily burdened juvenile courts of the state and the provision for rehearing on cause shown is to permit the ultimate determination on the facts to be made by a judge. However, since he must exercise discretion as to whether or not such rehearing must be granted, it cannot be maintained that a respondent has a right to review. Obviously, the legislature intended

[ 365 Pa. Super. Page 520]

    to grant the juvenile judge authority to rehear a case heard by a master if he deemed it necessary. We can only take this to mean that a final Order by a trial judge, whether or not petition for rehearing was filed, is appealable and there is no requirement to file exceptions to the master's report to preserve issues on appeal. We would be loathe to find otherwise, absent explicitly clear legislative intent, as no cause presented to the court carries greater implications for society than the intrusion of the state into the relationship between a child and his parent. We could not conceive of a more deleterious provision in the law than to foreclose a parent from appealing the decision of a master or court for failure to file exceptions when no requirement to do so is evident, no time for doing so is set and no notice provision is established. We can only perceive that 42 Pa.C.S.A. 6305(b) was not meant as a post-trial review process but rather was meant to provide an additional safeguard to the use of masters, when such a proceeding is not used in ascertaining custody elsewhere in the law.

The Juvenile Act, at 42 Pa.C.S.A. § 6341, sets forth a two-step process to be applied in child dependency cases. That section provides in pertinent part:

§ 6341. Adjudication

(a) General Rule. -- After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child . . .

(c) Finding of dependency. -- If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

In In the Interest of C.A.M., 264 Pa. Super. 300, 399 A.2d 786 (1979), we held that an appeal cannot be taken from the determination of dependency, as that is interlocutory in nature, but appeal will lie after final disposition has been

[ 365 Pa. Super. Page 521]

    made. "After a final disposition has been made, the entire proceedings will be subject to review, including the sufficiency of the evidence to support the court's finding of dependency." Id., 264 Pa. Superior Ct. at 302, 399 A.2d at 787. See In re Sharpe, 248 Pa. Super. 74, 374 A.2d 1323 (1977); In the Interest of LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); In the Matter of DeSavage, 241 Pa. Super. 174, 360 A.2d 237 (1976).

As both of the steps had been taken in the instant case, appellants properly brought their timely appeal before this Court. Thus we may proceed to examine the merits of their claims.

Appellants' first issue on appeal is whether the court's adjudication of dependency and disposition was supported by clear and convincing competent evidence. We find there is ample evidence on the record to support the court's finding of dependency.

A.M. is eight; P.M. is eleven (H.T. 8/26/86, p. 3). A CYS worker began an investigation on July 31, 1986, into allegations of abuse of the children (H.T. 8/26/87, pp. 15-16). Appellee/CYS's ...


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