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[U] In re J.J.

Superior Court of Pennsylvania

May 22, 2013

IN RE: J.J., A MINOR Appeal of: J.J., Father Appellant IN RE: C.J., A MINOR Appeal of: J.J., Father Appellant IN RE: M.J., A MINOR Appeal of: J.J., Father Appellant IN RE: S.J., A MINOR Appeal of: J.J., Father Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered October 3, 2012 in the Court of Common Pleas of Allegheny County, Family Court, at No. 1774-12, 1773-12, 1772-12, 1771-12

BEFORE: BENDER, MUNDY, and STRASSBURGER [*] , JJ.

MEMORANDUM

MUNDY, J.

Appellant, J.J. (Father), appeals from the October 3, 2012 orders adjudicating as dependent, pursuant to 42 Pa.C.S.A. § 6302(1) of the Juvenile Act, his four children, C.J., a female, born in July 1997; J.J., a male, born in April 2003; and female twins, S.J. and M.J., born in March 2002, (collectively, the Children). In said orders, the trial court further directed that the Children were to remain in their kinship foster care placements with their kinship foster parents, who the trial court made their educational and medical decision makers at the pre-hearing conference. After careful review, we affirm.

The trial court summarized the relevant facts and procedural history of this case as follows.

This matter was referred to the Allegheny County Office of Children, Youth and Families (CYF) on December 6, 2011. At that time, CYF learned that the four children were living with their mother when she died unexpectedly [in November of 2011]. The children's older sister, [E.R., ] moved into their home to care for them. She filed for custody on December 20, 2011 and Father appeared to contest. The court awarded custody to [E.R.] on an interim basis with Father having partial custody every other weekend and at such other times as the parties agreed. The matter was referred to Generations. [E.R.] and Father entered into an agreement whereby he was granted unsupervised custody every weekend. Father took advantage of only one weekend.
[E.R.] was unable to care for the four children and made arrangements in July of 2012 to place them with maternal relatives. C.J. was placed with [the Children's maternal grandparents, E.S. and S.S.]. Twins M.J. and S.J. were placed with [the Children's maternal aunt, L.S.]. J.J. was placed with [the Children's maternal aunt and uncle, P.G. and M.G.]

Trial Court Opinion, 12/12/12, at 1-2.

On August 16, 2012, CYF filed petitions seeking for the trial court to adjudicate the Children dependent. On September 4, 2012, the trial court held a pre-hearing conference, at which CYF presented its caseworker who is not identified in the transcript of the proceedings. Father appeared and testified, as did his wife, M.J. The guardian ad litem for the Children presented to the trial court letters written by two of the Children, S.J. and M.J. N.T., 9/24/12, at 26-27. The trial court heard, in camera, with all counsel present, the wishes of the Children as to their placement and visitation with Father.

Importantly, the caseworker testified that Father had visited the Children on only one weekend occasion, several months prior to the pre-hearing conference, pursuant to the custody order with E.R. that permitted Father unsupervised weekend visits. Id. at 9. Father explained that he had married M.J., who has four children who live with Father and M.J. Id. at 13. Father testified that he had not seen the Children since March 23, 2012, because they had been living with E.R., 40 or 50 miles away from his home, and he was having difficulty getting in touch with their caregivers. Id. at 14-15. Father requested visits with the Children, and indicated that he would desire for the Children to reside with him. Id. at 14. Father stated that he was willing to undergo an interactional evaluation with the Children. Id. On cross-examination, Father explained his lack of involvement in the Children's lives, stating that he had married M.J., and the Children's mother had not liked M.J. Id. at 15-16.

The trial court made the following factual findings based on the testimony at the prehearing conference held on September 4, 2012.

There were no concerns with any of the caregivers. Foster parents and the [C]hildren wish to continue living together. Father was ordered to provide proof of domestic violence treatment, anger management treatment, and [to] undergo urine screening. A psychological evaluation of Father and the [C]hildren[, ] and an interactional evaluation between both Father and [the] [C]hildren, and [E.R.] and the [C]hildren were ordered to aid in treatment and placement.

Trial Court Opinion, 12/12/12, at 2.

At the completion of the pre-conference hearing, the trial court ordered Father to undergo a drug and alcohol evaluation, and to provide proof of completion of the domestic violence/anger management classes which he claimed to have taken previously. Id. at 38. Because Father was unwilling to submit to a drug screen on the day of the pre-hearing conference, the trial court ordered that Father's visitation with the Children would be supervised. Id. At the request of the CYF caseworker, who was unidentified on the transcript, the trial court appointed the Children's caregivers as the medical and educational decision makers for the Children. Id. at 39-40. The trial court also directed that the Children undergo grief counseling because of the death of their Mother, and remain in their current placements. Id. at 38.

Subsequently, the trial court held a hearing on the petitions on October 2, 2012. At the hearing, CYF presented the testimony of Sonya Pass, the CYF caseworker assigned to the case, and Joe Zranec, the caseworker from Second Chance assigned to the case. CYF also presented L.S., the Children's maternal aunt who is serving as the caregiver for M.J. and S.J.; M.G., who is the Children's maternal uncle, through marriage, and is serving as the caregiver for J.J.; and E.S., the Children's maternal grandfather, who is the caregiver for C.J. Father failed to appear at the hearing, but his counsel appeared on his behalf.

The trial court made the following findings of fact from the testimony at the hearing.

All the children are doing well in current placement. The families see each other frequently so that the siblings have sufficient opportunity to be together. The current caregivers have education/medical guardianship over the children and are undergoing certification [as foster parents].
Father failed to appear at the hearing despite being notified twice by CYS. Sonya Pass, caseworker for CYS, testified that Father did not comply with any of the requirements set at the prehearing conference. He failed to provide proof of domestic abuse counseling or anger management treatment and he refused a urine screening. He did not appear for any of his scheduled appointments with Dr. O'Hara, the court appointed psychologist. The recommendation of CYS was for the [C]hildren to remain in current placement. [CYS further recommended that] [c]ustody for Father should not be considered until he provides information to the court regarding drug and alcohol treatment, domestic violence treatment and anger management treatment as ordered and submits to psychological evaluation.
Case worker, Joe Zarenec, testified that he had met with all the foster parents[, ] who were all cooperative. They had nearly completed the [foster parent] certification process and there were no concerns whatsoever with the current placement. He was unable to reach Father despite several attempts and Father had made no attempt to contact him. He recommended that Father attend the interactional [evaluation] and then participate in family therapy with the children.
[L.S.], maternal aunt and current foster parent for the twins, testified that the only time Father took the [C]hildren for a weekend, he returned them late and they missed a day of school. [M.G., ] wife [sic] of Mother's sister and foster parent for J.J., testified that Father has had virtually no contact with the children for at least ten years. [E.S.], maternal grandfather of the [C]hildren and foster parent for C.J., testified that the [C]hildren get together at his house two or three times each week. He has no contact with Father and raised custody concerns based on things C.J. told him. [S.J.], sibling of the [C]hildren, testified that she had personally witnessed Father abusing her mother by pushing her and punching her in the face. No objection was raised to this testimony.

Trial Court Opinion, 12/12/12, at 4-6. The trial court also found that Father had failed to participate in any supervised visits with the Children. Id. at 2.

In the October 3, 2012 orders, the trial court adjudicated the Children dependent, and continued them in their current foster home placements with their kinship foster parents, who the trial court had made their educational and medical decision makers at the pre-hearing conference. On November 2, 2012, Father filed timely notices of appeal with regard to the orders concerning the Children, along with concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).[1]

On appeal, Father raises the following three issues.

[1.] Did the [t]rial [c]ourt misapply the law when it appointed an educational and medical decision maker for the children without a record to show [F]ather was unwilling or unavailable to maintain this role?
[2.] Did the [t]rial [c]ourt misapply the law when it found dependency under 42 Pa.C.S. [§] 6302(1) without a record to show [F]ather was not able and available?
[3.] Did the [t]rial [c]ourt misapply the law when it allowed evidence of allegations of dependency beyond the scope ...

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