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[U] In re I.A.

Superior Court of Pennsylvania

February 14, 2014

IN THE INTEREST OF: I.A. APPEAL OF: ALLEGHENY COUNTY OFFICE OF CHILDREN, YOUTH AND FAMILIES IN RE: I.A., A MINOR APPEAL OF: F.A.

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered May 28, 2013 In the Court of Common Pleas of Allegheny County Family Court at No. 2343-12, JID No. 89533-A

Appeal from the Order Entered June 26, 2013 In the Court of Common Pleas of Allegheny County Juvenile Division at No. 2343-12

BEFORE: BENDER, P.J.E., LAZARUS, J., AND MUNDY, J. [*]

MEMORANDUM

BENDER, P.J.E.

Allegheny County Office of Children, Youth and Families (CYF or Agency) appeals from the order dated May 20, 2013, and entered May 28, 2013, that granted the private petition filed by the probation officer assigned to the minor subject of this case, I.A., born in June of 1995, finding I.A. to be a dependent child pursuant to the Juvenile Act, 42 Pa.C.S. § 6302 "Dependent Child." F.A. (Mother) appeals from the order dated June 25, 2013, and entered June 26, 2013, that continued jurisdiction over I.A. by the juvenile court after he turned eighteen years old. Following review, we reverse the order finding I.A. to be a dependent child and, therefore, dismiss Mother's appeal as moot.[1]

We begin our review in relation to CYF's appeal from the juvenile court's order determining that I.A. is a dependent child. The court provided the following findings of fact upon which it based its conclusion:

Findings of fact are as follows: The child has three pending delinquency petitions at T175049, T174410 and T175082, all related to alleged assaults by the child at school and in the home. The child had been evaluated by Dr. Zerby and Dr. Neeper who found the child not competent at this time to participate in his defense due to mental health issues and in need of mental health treatment and possible RTF[2] placement. All parties stipulated on the delinquency case as to the child's mental incapacity. All parties had notice of the child's competency issue. Mother and child were living in a hotel and the child was not attending school and was demonstrating out of control behaviors in school and at home. The child had not received treatment as of May 23, 2013, due to [M]other's refusal to permit the child to receive mental health treatment and cooperate with the court appointed educational and medical guardian, Sharon Profeta, Esquire. The court finds in addition that there are cultural and communication issues that necessitated CYF services.
Probation filed a private petition since CYF had refused to help this child and mother. The court finds that [M]other had recently obtained housing, but still refuses to cooperate and assist in her son's mental health treatment and the child will be 18 years of age before another hearing can be scheduled. This court also finds that even though the Child had recently started to attend school, as a result of the guardian's assistance, there are still concerns that his educational needs are not being met and needs to have an IEP[3] plan in place. The child also continues to pose a risk for out of control behaviors without prescribed mental health treatment.
While the court believes the child has a guardian under section one, there may need to be a hearing to determine the child's mental capacity on the dependency case to determine whether the child is mentally incapacitated.
While lacking statutory authority, this court would opine that a child that is found to be incompetent due to mental health issues and commits delinquent acts is similar to a 42 Pa.C.S.A. [§] 6302 "Dependent Child" (7) when a child under the age of 10 commits a delinquent act or crime they are seemed [sic] to be dependent.
The entire record of the child's case shall be incorporated and be made part of this hearing subject to any evidentiary objections.

Order of Adjudication and Disposition—Child Dependent, 5/20/13, at 2.

CYF filed its timely appeal and a statement of matters complained of on appeal. In its brief, CYF states its questions as follows:

1. Whether the trial court abused its discretion by adjudicating an individual dependent when there was insufficient evidence presented[?]
2. Whether the trial court abused its discretion by considering and relying on evidence that [was] heard outside of the dependency matter at previously conducted delinquency hearings[?]

CYF's brief at 8.[4]

Our scope and standard of review in dependency cases is as follows:

We must accept the facts as found by the trial court unless they are not supported by the record. 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. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In the Interest of A.N., 39 A.3d 326, 330 (Pa.Super. 2012) (quoting In re C.M.T., 861 A.2d 348, 351 (Pa.Super. 2004) (citations omitted)). Importantly, we recognize that the overarching purpose of the Juvenile Act is "to preserve family unity wherever possible." 42 Pa.C.S. § 6301(b).

In order to adjudicate a child dependent, at least one of the subsections provided in section 6302 "Dependent Child" must be met. Here, the court found I.A. to be a dependent child pursuant to subsections (1) and (6) under that section. Those two sections provide that a child is dependent if he/she:

(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….
(6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;

42 Pa.C.S. § 6302.

A dependency hearing is a two-stage process. The first stage requires the juvenile court to hear evidence on the dependency petition and determine whether the child is dependent pursuant to the standards set forth in section 6302. 42 Pa.C.S. § 6341(a). If it finds "clear and convincing" evidence that the child is dependent, the court may move to the second stage, an adjudicatory hearing where it must make an appropriate disposition based on an inquiry into the best interests of the child. § 42 Pa.C.S. § 6341(c); In re B.S., 923 A.2d 517 (Pa.Super. 2007). "Clear and convincing" evidence has been defined as testimony that is "so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue." In the Matter of C.R.S., 696 A.2d 840, 845 (Pa.Super. 1997).

Moreover, parties to dependency proceedings are entitled to introduce evidence, cross-examine witnesses, and otherwise be heard on their behalf. See 42 Pa.C.S. § 6338(a). Further, the Juvenile Act mandates that juvenile courts hear evidence on the dependency petition prior to adjudicating a child dependent or to making a proper disposition of the case. See 42 Pa.C.S. § 6341(a) and (c). Likewise, the Pennsylvania Rules of Juvenile Court Procedure direct juvenile courts to conduct an adjudicatory hearing during which "[e]ach party shall be given the opportunity to: (1) introduce evidence; (2) present testimony; and (3) to cross-examine any witness." Pa.R.J.C.P. 1406; see also Pa.R.J.C.P. 1401. The right to introduce evidence and cross-examine the opponent's witnesses is beyond dispute. See In re A.S., 936 A.2d 1094, 1097 (Pa.Super. 2007).

Since CYF's two questions raise sufficiency of the evidence claims, we have reviewed the juvenile court's opinion, which expands upon the findings of fact contained in its Order of Adjudication and Dispostion—Child Dependent that we quoted above. To properly address CYF's issues, we believe it is necessary to reproduce extensive portions of the juvenile court's decision that provide a history of this matter. Specifically, the court stated:

This family and child have a history with CYF dating back to November of 2012. CYF filed an ECA on November 6, 2012, alleging that the child assaulted his mother, punching her in the face and Mother was fearful of and unwilling to allow the child to return home. On November 6, 2012, the court issued an ECA and placed the child into shelter care at Family Links, Plum. At the shelter hearing on November 9, 2012, before Hearing Officer Hobson, the court returned the child to Mother's care and CYF advised the family of Family Group Decision Making. Judge Ward appointed Kids Voice as the child's GAL/legal counsel on November 8, 2012, to represent the child's best interest and recognized that dependency issues and jurisdiction applied to this case. CYF failed to file a dependency petition after the first court hearing between Mother and the child and this court believes it should have done so immediately and provided the child with the necessary mental health treatment and Mother the appropriate assistance. This court notes that the only service offered to this family was Family Group Decision Making when Mother was a refugee with no family in Pittsburgh.
On January 16, 2013, Judge Hens Greco issued a detention order detaining the child in Shuman for aggravated assault and defiant trespass, alleging that the child committed one count of aggravated assault by threatening and pushing Baldwin vice principal, Jonathan Peeples while on Baldwin School property and one count of defiant trespass, alleging that the child entered Baldwin school property on 1/16/2013, after being provided notice that he was not permitted to enter Baldwin school grounds. On January 31, 2013, Judge Ward ordered the child to remain detained, continued the adjudicatory hearing and ordered the child to have a mental health evaluation.
On February 4, 2013, Allegheny County Juvenile Probation filed two additional delinquency petitions alleging that the child committed five counts of Simple Assault, two counts of Harassment and one count of Disorderly Conduct related to two separate family incidents in which it was alleged that the child attacked his sister and mother.
At the February 11, 2013, detention hearing, this court ordered the child to remain detained at Shuman Center with permission to be admitted to Western Psychiatric Hospital. Permission was also granted for the child to be admitted to a mental health step-down program upon discharge by agreement of all parties. A status conference was scheduled for March 11, 2013.
On March 11, 2013, this court ordered the child released from Shuman Center and ordered him to be admitted to an interim mental health program, pending RTF placement with an alternative safety plan to be implemented. CYF was ordered to assess the Mother's housing status, since evidence was presented that probation had made two referrals to CYF, which resulted in little or no action by CYF. This court also ordered the continued use of an interpreter, Aweys Mwaliya, for the mother.
On March 18, 2013, probation officer Claire Koval, filed a private petition for dependency, alleging that the child has pending delinquency petitions before this court and is currently incompetent to participate in his defense and is in need of an RTF placement. It should be emphasized that Allegheny County Probation filed the dependency petition, due to CYF's reluctance to investigate and help this family. The child was detained at Shuman Center and his mother was residing in a motel, all of which has been reported to CYF. On March 21, 2013, Judge Cozza, a third judge, appointed Kids Voice as the child's GAL recognizing the need for the child's best interest to be represented and the existence of dependency concerns.
After the detention review hearing on March 21, 2013, this court ordered the child to remain detained at Shuman with permission to place [him] in a mental health program pending an RTF or other appropriate placement. Upon completion of a mental health program, the child was to be released to Shuman or an appropriate RTF program. An inner county agency meeting with all parties was ordered to take place. The court also ordered the continued use of the interpreter for the benefit of the mother. At the time of this hearing, the court ordered Mother to continue to search for housing as she still had not obtained permanent housing for the child and his siblings.
At the next detention review hearing on April 2, 2013, after Mother obtained housing, this court ordered the child to remain detained with permission to return to Mother's care upon EHM connection with permission for the child to have "windows" as per the probations officer's discretion, specifically for mental health treatment and school. The child was to have no contact with the alleged victim. This court ordered probation to continue to explore RTF placement for the child and to notify CYF and the caseworker of the next scheduled hearing. Due to the child's significant mental health issues and Mother's reluctance to assist in the child's treatment plan, the court appointed attorney[] Sharon Profeta the medical/educational guardian for the child. At this time the court was convinced beyond any reasonable doubt that CYF would not assist this child or family. The April 2, 2013, order contained the following:
"Status Conference, Competency and Police/Private Petition Hearings are scheduled for 4/22/13 at 9:00 A.M. in front of Judge McVay. The court has heard testimony regarding child's behavior, perhaps lack of competency, and Mother's housing and unwillingness to cooperate or get the child appropriate mental health treatment and advised her to obtain counsel. Probation to provide a copy of this order ASAP to CYF caseworker who again was not present. CYF to assist mom with obtaining counsel and GAL to work with med/ed guardian and is aware of possible RTF treatment needs according to P.O. Koval. THESE CONCERNS ARE AT ISSUE IN THE DEPENDENCY HEARING AND ALL PARTIES ARE ON NOTICE" (see Judge McVay's April 2, 2013, detention Review order).
The April 22, 2013, status conference, competency and private dependency petition hearings were continued to May 8, 2013, as a status conference. Mother was ordered to obtain counsel and an interpreter was ordered to be present in court for the benefit of the mother. The child was ordered to remain on EHM.
On May 7, 2013, the child's med/ed guardian filed her report indicating that all RTF referrals for the child had been denied. The report also indicated that CYF would not provide any assistance with transporting the child to and from mental health appointments, since the child was not dependent and that the evaluations were most relevant to the child's delinquency case, essentially yet again, refusing to help the family in need.
After a status conference on May 8, 2013, this court issued an order scheduling an adjudicatory hearing, competency hearing, and probation's petition hearing for May 20, 2013, before this court. In addition, the order contained the following notice:
THIS IS A POTENTIALLY SHARED RESPONSIBILITY CASE AND THE PARTIES ARE ON NOTICE THAT THE COURT HAS HEARD EVIDENCE OF DEPENDENCY AS TO SECTIONS ONE AND SIX IN PREVIOUS DELINQUENCY HEARINGS AND WILL CONSIDER IT WHEN DETERMINING THE DEPENDENCY ADJUDICATION. (See Judge McVay's May 8, 2013, order)
On May 20, 2013, this court continued the child's delinquency adjudicatory hearing as the parties had stipulated to the evaluations by Drs. Zerby and Neeper, finding the child not competent at this time to participate in his own defense due to mental health issues and the need for mental health treatment and possible RTF placement. This court found that Allegheny County Juvenile Probation presented clear and convincing evidence that the child was dependent under sections one and six of the Juvenile Act 42 Pa.C.S.A. § 6302 "Dependent Child" including judicial notice of the entire record in this case.

Juvenile Court Opinion, 7/24/13, at 2-5.

In regard to its first claim set forth in its brief, CYF notes that the court directed the juvenile probation officer to file the private petition for dependency, which states that there

is pending delinquency charges before Judge McVay and [I.A.] is currently not competent to participate in his defense and is in need of RTF placement. Currently child is detained at Shuman Center. Child's mother … resides in a motel due to lack of stable housing. At a hearing on 3/11/13, PO Koval was directed to file a dependency petition.

Petition for Dependency, 3/18/13.

At the May 20, 2013 hearing, the delinquency charges were continued so that mental health treatment could be obtained for I.A. With regard to the dependency petition, the probation officer testified that since the filing of the petition, I.A.'s mother had obtained appropriate housing and had I.A.'s mental health evaluated, but was refusing medication for I.A. Specifically, the probation officer testified that the petition was filed at the direction of the court because I.A. "was not competent to stand trial[, ] was not receiving the treatment that would make him competent[, ]" N.T., 5/20/13, at 22, and because he was homeless. Sharon Profeta, the Education Decision Maker for I.A., who was appointed by the court, "testified that I.A. had agreed to attend mental health appointments; that mother was willing to accept help from the Pittsburgh Refugee Center regarding transportation; and that I.A. was on target to graduate by the end of the school year." CYF's brief at 18 (citing N.T., 5/20/13, at 29-35). Ms. Profeta also testified that I.A.'s mother would speak to the psychiatrist so that she could understand why I.A. needed the prescribed medication.

Our review of the record reveals that it does not contain evidence that I.A. is incompetent, namely because no doctor's reports were entered into the record in the dependency case.[5] Moreover, the court's statement that the delinquency adjudication was continued due to the parties' stipulation that Dr. Neeper and Dr. Zerby found I.A. not competent to participate in his defense in the delinquency matter, is also not supported by any evidence in this record. The court does not provide citation to where in the record the parties entered into such a stipulation. We also agree with CYF that the filing of a delinquency petition "does not prove that the allegations contained within it are correct." CYF's brief at 21. Thus, there was no evidence that I.A. had committed any acts of disobedience. Additionally, despite the averments in the dependency petition that mother was residing in a motel and was without stable housing, testimony proffered at the hearing and noted by the court refutes those allegations.

In CYF's second claim of error, it asserts that the court abused its discretion by incorporating I.A.'s delinquency record and relying on the evidence contained in that record to arrive at its conclusion that I.A. is dependent when CYF was not a party to the delinquency proceedings. CYF also addresses the court's repeated statement that CYF was put on notice by the May 9, 2013 order that evidence presented in the delinquency case would be incorporated in the dependency matter. That order was included in the court's above-quoted recitation of the history of this matter, set forth in capital letters. However, CYF counters that despite the court's invitation to attend delinquency hearings, it was not a party to those proceedings and, therefore, could not present evidence or witnesses to rebut evidence that was presented by others. CYF further indicates that the transcript of the May 20, 2013 hearing reveals that evidence presented at prior delinquency hearings was disputed and that the court in the dependency case should not be permitted to take judicial notice of that evidence. Thus, CYF claims that the court erred when it incorporated the record from I.A.'s delinquency proceedings into the record for his dependency case.

We agree and quote the pertinent language in Pa.R.E. 201, which states:

(b) Kinds of Facts That May Be Judicially Noticed.

The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Pa.R.E. 201(b).

We also rely on this Court's opinion in V.B. v. J.E.B., 55 A.3d 1193 (Pa.Super. 2012), that discussed the trial court's acknowledgment "that it took judicial notice of the entire 'official file' in the prior, unrelated custody dispute, reviewed that file, and considered the information contained therein in fashioning the instant custody order." V.B., 55 A.3d at 1206.[6] This Court held that "in contrast to merely taking notice of its prior ruling, … the court committed reversible error by incorporating the entire file of the unrelated custody litigation into this matter by reference and by relying upon its prior findings of facts to reach its determination herein." Id. at 1207. We likewise conclude that the juvenile court in this case committed reversible error by incorporating the delinquency case into the instant dependency matter. CYF did not have an opportunity to produce evidence that might have contributed to a decision in the delinquency case, which more importantly had not been resolved at the time the order presently on appeal was handed down in this dependency matter. Accordingly, we are compelled to reverse the court's order wherein it concluded that I.A. is a dependent child. There is insufficient evidence to meet the requirements in subsections (1) and (6) of section 6302. Thus, the juvenile court's May 20, 2013 order is reversed.[7]

We now turn to Mother's appeal from the juvenile court's June 26, 2013 order, which continued jurisdiction over I.A. as a dependent child. The hearing was held and the order was entered after I.A. turned eighteen years old. Mother asserts that since I.A. is now eighteen and has not requested the court to continue supervision, the court is without jurisdiction to continue supervision over I.A. Specifically, Mother raises the following two issues:

Did the trial court abuse its discretion by misapplying the law when it assumed jurisdiction over [I.A.] while he was over eighteen and had not requested such supervision?
Did the trial court abuse its discretion by not applying the law and making a decision that was manifestly unreasonable when it reasoned that a determination of incompetence in a separate delinquency matter justified its exercising jurisdiction over a person of majority age without their consent and outside the scope of the Juvenile Act?

Mother's brief at 6. We do not address the merits of these issues in light of our determination that the juvenile court erred in concluding that I.A. was a dependent child under subsections (1) and (6) of the Juvenile Act, 42 Pa.C.S. § 6302 "Dependent Child." Having concluded that sufficient evidence did not support the court's dependency decision, it is evident that Mother's appeal is moot.

Order at 1044 WDA 2013 reversed. Appeal from order at 1143 WDA 2013 dismissed as moot.

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