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In re K.S.

Superior Court of Pennsylvania

March 29, 2017

IN THE INTEREST OF: K.S., a Minor APPEAL OF: A.L.W.

         Appeal from the Order dated August 12, 2016 in the Court of Common Pleas of Northumberland County, Juvenile Division, No(s): CP-49-DP-0000056-2016

          BEFORE: PANELLA, OTT and MUSMANNO, JJ.

          OPINION

          MUSMANNO, J.

         A.L.W. ("Mother") appeals from the Order of Adjudication and Disposition - Child Dependent ("Dependency Order") relating to her minor son, K.S. ("Child"), born in April 2001, pursuant to 42 Pa.C.S.A. § 6302. We vacate the Dependency Order, and remand for a new adjudicatory hearing.

         Northumberland County Children and Youth Services ("the Agency") first became involved with the family in 2009. Since that time, the Agency received eight additional referrals, raising concerns about housing, lack of supervision of Child, and parents' drug and alcohol abuse.

         In October 2015, Child began living with his step-grandfather ("Custodian"), who was granted custody of Child in December 2015. In July 2016, Custodian indicated to the Agency that, as a result of a physical confrontation between them, Child could no longer live with him. Child thereafter resided with his maternal great-grandmother, who subsequently indicated that Child could no longer live with her, due to housing issues and Child's behavior. Child also stayed with a friend's family before being temporarily placed with his paternal great-aunt.

         On August 9, 2016, the Agency filed a shelter care Application, and requested the temporary placement of Child in Agency's custody. The trial court entered an Order the same day, granting the Agency's request for temporary placement and scheduling a shelter care hearing. The trial court conducted a shelter care hearing on August 12, 2016.[1]

         At the time of the hearing, Child's father ("Father") was serving a sentence in a state correctional institution. However, Father waived his right to counsel, and participated in the hearing via telephone.

         Additionally, Mother was serving time in Snyder County Prison as a Northumberland County prisoner, following her arrest for various drug charges (including, inter alia, manufacturing methamphetamine in her home). Mother did not attend the shelter care hearing, either in person or via telephone.[2] Mother's interests were represented by Marc Lieberman, Esquire ("Attorney Lieberman"), in his capacity as Northumberland County dependency court counsel.

          During the shelter care hearing, Attorney Lieberman requested a continuance, due to Snyder County Prison's refusal to allow Mother to participate in the hearing, and because Attorney Lieberman did not have time to file a motion for a transport order. The Agency opposed the request, because, "as [Mother] is incarcerated and [Father] is incarcerated[, ] neither would be an option today." N.T., 8/12/16, at 5. The trial court denied Attorney Lieberman's request for a continuance.

         Pamela Bowman ("Bowman"), an Agency caseworker, testified regarding the family's history with the Agency. The Agency thereafter asked the trial court to proceed with the adjudicatory hearing.[3] Attorney Lieberman objected to proceeding with the adjudicatory hearing, as Mother was not available to participate in the proceedings. The trial court overruled Attorney Lieberman's objection, and granted the Agency's request to adjudicate Child dependent.

         Bowman subsequently provided recommendations for Child's permanency plan. The trial court adopted the Agency's report and recommendations at the conclusion of the hearing. The same day, the trial court issued a Shelter Care Order, granting physical and legal custody of child to the Agency, as well as the Dependency Order.

         Mother filed a timely Notice of Appeal and a Concise Statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court subsequently ordered Mother to file a Pa.R.A.P. 1925(b) concise statement. Mother filed a second Concise Statement on September 29, 2016.

On appeal, Mother raises the following questions for our review:
I. Whether the trial court erred in [] denying Mother[']s right to participat[e] in the adjudication hearing and suspending [] Mother's parental rights[, ] without [] Mother being permitted due process of law?
II. Whether the trial court erred in determining that the best interests of [C]hild would be served by denying Mother minimal due process?

Mother's Brief at 10.

We apply the following standard of review in dependency ...

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