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[U] In re D.L.

Superior Court of Pennsylvania

January 23, 2014

IN THE INTEREST OF: D.L., A MINOR. APPEAL OF: B.L. IN THE INTEREST OF: K.L., A MINOR. APPEAL OF: B.L. IN THE INTEREST OF: C.L., A MINOR. APPEAL OF: B.L. IN THE INTEREST OF: S.L., A MINOR. APPEAL OF: B.L.

NON-PRECEDENTIAL DECISION

Appeal from the Order entered June 14, 2013, in the Court of Common Pleas of Wyoming County Civil Division, at No(s):DP-2013-8

Appeal from the Order entered June 14, 2013, in the Court of Common Pleas of Wyoming County Juvenile Division, at No(s):DP-2013-9

Appeal from the Order entered June 14, 2013, in the Court of Common Pleas of Wyoming County Juvenile Division, at No(s): CP-66-DP-0000010-2013

Appeal from the Order entered June 14, 2013, in the Court of Common Pleas of Wyoming County Juvenile Division, at No(s): DP-2013-11

BEFORE: PANELLA, MUNDY, and PLATT [*] , JJ.

MEMORANDUM

PANELLA, J.

B.L. ("Father"), the father of the subject children, D.L. (a male, born in February of 2005), and adoptive father of K.L. (a female born in May of 2001), C.L. (a female born in May of 1999), and S.L. (a female born in May of 1997) (collectively, the "Children"), appeals the orders of the trial court, dated June 13, 2013, and entered on June 14, 2013, which adjudicated the Children dependent under the definition of dependent child in section 6302(1) of the Juvenile Act, 42 Pa.C.S.A. § 6302(1), and ordered legal custody with DHS, and the Children placed in a foster home.[1] We affirm.

In its opinion entered on August 7, 2013, the trial court thoroughly set forth its factual findings and the procedural history of this appeal, which we incorporate herein.[2] We set forth only those facts and procedure as are necessary to an understanding of this appeal. On April 25, 2013, the Wyoming County Human Services ("HS") filed petitions for emergency protective custody of the Children, based on allegations S.L.'s former boyfriend made to Pennsylvania State Police that Father had sexually abused S.L. and C.L. on numerous occasions. On April 26, 2013, the trial court held a shelter care hearing. At the hearing, HS presented the testimony of Pennsylvania State Trooper Stephen T. Scoble. N.T., 4/26/13, at 6. HS also presented the testimony of its caseworker, Kelly Flaherty, the caseworker assigned to the case. Mother was present with her counsel. Attorney Kelly Carrubba, who was appointed to represent the Children, also was present. Father was not present, nor was he represented by counsel at the hearing. Id. at 3-4. On April 26, 2013, the trial court entered shelter care orders with regard to the Children, removing them from their parents' home, and placing them in a foster/kinship care home. The kinship care home was not the home of Children's paternal grandparents, however.

Thereafter, on April 30, 2013, DHS filed dependency petitions with regard to the Children. After a continuance, the trial court held a hearing on the dependency petitions on June 13, 2013. Mother appeared at the hearing, represented by her counsel, and Attorney Carrubba represented the Children. Father appeared with his criminal counsel, but without counsel to represent him in the dependency matter. After a colloquy, Father waived representation at the dependency hearing. N.T., 6/13/13, at 6-9.

On June 14, 2013, the trial court entered the orders dated June 13, 2013, adjudicating the Children dependent, and maintaining them in foster care. On July 12, 2013, Father filed timely appeals, along with concise statements of errors complained of on appeal.[3]

On appeal, Father raises the following issues:

1. As to SL and CL, were the Trial Court Orders dated June 13, 2013[, ] wherein the Trial Court determined these children were removed from the home based upon [a] finding of abuse[, ] and the named children victims of child abuse[, ] in that they had been sexually abused[, ] contrary to the evidence, law[, ] and an abuse of discretion[, ] wherein there was only hearsay evidence, at most a dependency based on allegations without any stipulation to the veracity or accuracy of the facts, no finding in the record[, ] and [F]ather at most agreed to dependency[, ] without agreeing to abuse allegations[, ] and the Dependency Petition fails to put Father on notice[, ] since [the] Petition [did] not checked [sic] that [C]hildren are alleged victims of child abuse[, ] and [there was] no specific allegation [of child abuse in the petition]?
2. As to DL and KL, were the Trial Court Orders dated June 13, 2013 contrary to the evidence, law[, ] and an abuse of discretion[, ] wherein there are no findings of fact in the record, only hearsay evidence was offered[, ] and [the] record reflects at most dependency without any mention to agreeing to abuse allegations[, ] and the Dependency Petition alleges no allegation of abuse?
3. As to DL and KL, was the denial of [F]ather with even supervised visits contrary to the evidence, law and an abuse of discretion?
4. Was the denial of the [C]hildren [being] placed with grandparents contrary to the evidence, law[, ] and an abuse of discretion[, ] and [was] 42 Pa.C.S.A. [§] 6351 . . . totally disregarded?

Father's Brief, at 1.

Our Supreme Court set forth our standard of review for dependency cases 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, 26-27, 9 A.3d 1179, 1190 (2010).

Dependency matters are governed by the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6364 ("Act"). Section 6302 of the Juvenile Act defines "dependent child" as follows.

"Dependent child." A child who:
(1) 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, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk.

42 Pa.C.S.A. § 6302.

Dependency must be proven by clear and convincing evidence. In re D.A., 801 A.2d 614, 617 (Pa.Super. 2002) (en banc). "Clear and convincing evidence" is defined as that evidence "that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003) (quotation marks omitted).

Further, we have stated:

[t]he burden of proof in a dependency proceeding is on the petitioner to demonstrate by clear and convincing evidence that a child meets that statutory definition of dependency.

In re G., T., 845 A.2d 870, 872-73 (Pa.Super. 2004) (quotations and citations omitted).

In In re D.A., we explained the following.

[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or a private or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).

In re D.A., 801 A.2d at 617 (citation omitted). Further, the panel in In re D.A. stated that the question of whether a child is lacking proper parental care and control involves two discrete questions: whether the child is presently without proper care or control, and, if so, whether such care and control are immediately available. Id. at 619. The definitions of "sexual abuse and "child abuse" are set forth in section 6303 of the Child Protective Services Law, 23 Pa.C.S.A. § 6303.[4]

We consider Father's first two issues together, as they are interrelated. Father contends that the trial court erred in entering its June 13, 2013 orders, because it stated that S.L. and C.L. were removed from their parental home based on findings that they were sexually abused. He argues that there was no clear and convincing evidence to support findings of sexual abuse of S.L. and C.L. In his second issue, Father argues that the trial court erred in entering its June 13, 2013 orders stating that K.L. and D.L. were removed from their parental home based on findings that they were abused. With regard to all four children, Father claims that HS presented only hearsay evidence, through the testimony of its HS caseworker, Ms. Flaherty. He states that the parties did not stipulate to the veracity or accuracy of the facts of the case regarding the allegations of sexual abuse of the older two children and abuse of the younger two children. Father asserts that the parties, on the record, agreed to a finding that the Children were dependent, but did not agree to findings that the Children were sexually abused and/or abused. Father also asserts that the petitions did not put him on notice of the abuse and/or sexual abuse allegations. Thus, he urges that the trial court's issuance of the adjudication orders was reversible error.

We find no merit to Father's argument that the dependency petitions did not put him on notice that the dependency proceedings involved allegations that sexual abuse and/or abuse, within the definition of the Juvenile Act, had occurred. As to the two older children, the dependency petitions did include a check in the box for abuse, 23 Pa.C.S.A. § 6303, and did state that allegations of sexual abuse were made by them. While the petitions did not describe the allegations of abuse in graphic detail, they stated that Mother did not believe the allegations, that Father denied the allegations, and that the Children were in protective custody in a kinship home because of the sexual abuse allegations with regard to the two older children. The evidentiary hearing on all of the petitions occurred at the same time, so Father's assertion that he was not on notice concerning the allegations of abuse with regard to the younger two children is disingenuous.

Further, at the dependency adjudication hearing, Attorney Deborah Albert-Heise accompanied Father, because he had retained her to represent him for any criminal charges that might be filed against him in relation to the abuse allegations in the dependency case. N.T., 6/13/13, at 6. Counsel for HS, attorney Thomas Daniels, objected, asserting a conflict of interest on the part of Attorney Albert-Heise, because her husband worked for DHS, and because she was not an interested party. Id. at 6-7. Thereafter, the trial court entered into the following colloquy with Father and his criminal counsel:

BY THE COURT[:] [Father], do you have an attorney hired in this matter?
[FATHER:] No, not for this.
BY THE COURT[:] Alright, do you wish the court to appoint an attorney for you to represent you?
[FATHER:] No, I don't need one. I'll represent myself for today.
BY THE COURT: Ok, you understand that you have the right to request the court to appoint legal counsel for you in this matter?
[FATHER:] Yes.
BY THE COURT[:] Ok, so you say not for this hearing, but do you want counsel appointed?
[FATHER:] No.
BY THE COURT[:] I'm going to appoint counsel for you, anyway[, ] with respect to this matter. I'll check with the court administrator, and we'll find an individual to represent you. I don't want you to go through this matter unrepresented even though you believe that you can. Alright? Ok, very good. Ms. Albert-Heise, you're not representing [Father] in this matter?
MRS. ALBERT-HEISE[:] Your Honor, I represent [Father] in as much as he is the target of a criminal investigation which arises out of the same factual scenario as this case that we're here for ...

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