In re Interest of S.U.

204 A.3d 949

In the INTEREST OF: S.U., a Minor

Appeal of: R.U., Father

No. 888 MDA 2017

Superior Court of Pennsylvania.

Argued July 10, 2018

Filed February 21, 2019

H. Allison Wright, Lancaster, for appellant.

Courtney J. Restemayer, Lancaster, for Lancaster County CYS, appellee.

Jeffrey Gonick, Leola, Guardian Ad Litem, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY NICHOLS, J.:

R.U. (Father) appeals¹ the order adjudicating his minor son, S.U. (Child), dependent, maintaining Child's placement in foster care, setting Child's permanency goal to adoption, and terminating Father's visitation. Father also appeals a separate order entered the same day, which found aggravated circumstances and directed that the Lancaster County Children and Youth Social Service Agency (the Agency) make no efforts to reunify Child with Father.² We affirm.

The relevant factual and procedural history of this case follows. On April 12, 2017, the Agency filed a dependency petition and a petition for temporary custody of Child. In its dependency petition, the Agency stated that Father and Mother (collectively, Parents) have a protracted history with the Agency. See Dependency Pet., 4/12/17, at Allegations of Dependency ¶ F. Specifically, the Agency asserted that two of Parents' younger sons, J.U.1 and J.U.2, were already dependent. Id. On May 18, 2016, Parents voluntarily relinquished their parental rights to J.U.1, and their parental rights to J.U.2 were terminated involuntarily on March 28, 2017. Id.

The Agency further stated that it received a referral regarding Child on March 27, 2017, which alleged that Child suffered from poor hygiene and that Mother was using illegal substances, including cocaine. Id. at ¶ A. Following an investigation, the Agency discovered that Child was living with Parents in a one-bedroom apartment "with a mattress that the family share[d]." Id. at ¶ D. On April 5, 2017, Courtney Ross, a caseworker for the Agency, made an unannounced home visit. Id. at ¶ C. Parents refused a random drug screen. Id. On a subsequent unannounced visit, on April 7, 2017, Father submitted to a drug screen and tested negative. Id. at ¶ D. Mother tested positive for THC³ and cocaine. Id.

On April 12, 2017, the Honorable Jay J. Hoberg entered an order granting the petition for temporary custody and placing Child in foster care. See Order, 4/12/17. The order scheduled a hearing for April 13, 2017, and appointed H. Allison Wright, Esq., to represent Father, David Peiffer, Esq., to represent Mother, and Jeffrey Gonick, Esq., to represent Child as guardian ad litem (GAL). Id. Attached to the order was a notice, which provided, in relevant part, the following:

THE LAWYER APPOINTED FOR YOU WILL REPRESENT YOU, WITHOUT CHARGE, ONLY AT THE FIRST SCHEDULED HEARING. THIS LAWYER HAS BEEN PROVIDED A COPY OF THIS PETITION AND WILL BE PRESENT AT THE HEARING. IT IS YOUR RESPONSIBILITY TO CONTACT THE LAWYER PRIOR TO THE HEARING.

IF YOU WISH TO HAVE A LAWYER AFTER THE FIRST HEARING, AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE[ ] SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

Notice, 4/12/17 (emphasis in original). The notice further provided a list of documents Father needed to provide to obtain a court-appointed attorney. See id.

On April 13, 2017, the court continued the hearing to April 18, 2017, due to the unavailability of the GAL and counsel for Parents. We have included below the order and notice, which indicates that Father was served individually.

On April 18, 2017, Judge Hoberg conducted the shelter care hearing. Due to Parents' failure to attend the hearing, the court permitted counsel for Parents to withdraw. On May 1, 2017, Judge Hoberg entered a shelter care order finding it was not in the best interest of Child to return to the Parents' home, legal and physical custody should remain with the Agency, and visitation should continue as scheduled, subject to a negative drug screen. See Shelter Care Order, 5/1/17. The order included an attachment, which notified Parents that their respective attorneys had withdrawn their appearances due to their failure to appear at the hearing. Id. Specifically, the attachment included a notation indicating that Father was served individually. Id. The attachment further directed Parents to make an appointment to re-qualify for counsel for their next scheduled hearing if they wished to have counsel represent them at said hearing. Id. We have included the order and attachment below.

On May 2, 2017, the Honorable Thomas B. Sponaugle conducted a dependency hearing. Parents failed to attend, and no counsel appeared on Parents' behalf. At the hearing, Ross testified as to the averments in the dependency petition. See N.T., 5/2/17, at 5-16. Ross further testified that the "Agency continue[d] to have concerns with substance abuse as this has been an ongoing issue for the family," Child's hygiene, and Parents' inability to provide for Child's needs or maintain a stable environment. Id. at 8. She stated that there were also some concerns that Child could have a mental health issue, but that Parents did not address those concerns. Id. at 11-12.

Ross stated that there were aggravating circumstances due to Parents' parental rights being involuntarily terminated as to J.U.2. Id. at 5, 9. She explained that Parents were given a child permanency plan as to J.U.1 and J.U.2 and that they did not complete the objectives. Id. 8-9. She added that the concerns that led to the placement of J.U.1 and J.U.2 had not been alleviated. Id. at 11. Ross indicated that she attempted to discuss the permanency plan for Child with Parents but could not reach them by phone or in person at their apartment. Id. at 9. She testified that she was able to speak with Parents on May 1, 2017, the day before the hearing, when she personally served them with the notice of the hearing and they indicated that "they would come early to discuss the case with me." Id. at 9-10.

Ross further testified that during the time of the Agency's involvement with J.U.1 and J.U.2, Parents told the Agency that Child lived with maternal grandmother. Id. at 10. She stated that had the Agency known that Child was actually residing with Parents it would have sought to place Child at the same time as it placed J.U.1 and J.U.2. Id. at 11.

Finally, Ross stated that Child is adjusting well in the new resource home with maternal aunt. Id. at 15. Child is very excited to have his own bed and his own space. Id. Child "also had indicated to me that he did not feel safe going outside of where he was living with [P]arents, so he enjoys being able to play in the driveway and being able to play in a yard." Id. Currently, Child is placed with his two youngest siblings and has visitation with the rest of his siblings as maternal grandmother and aunt have a close relationship. Id. at 14.

On May 4, 2017, Judge Sponaugle entered an order adjudicating Child dependent, maintaining his placement in foster care, setting his permanency goal as adoption, and terminating Father's visitation.⁴ See Order, Adjudication and Disposition, 5/4/17. Judge Sponaugle entered a separate order that same day, finding aggravated circumstances due to the involuntary termination of Parents' parental rights to J.U.2., and directing that no efforts be made to reunify the family. See Order, Aggravated Circumstances, 5/4/17.

Father obtained court-appointed counsel⁵ and, on June 1, 2017, filed a single timely notice of appeal from both orders and a Pa.R.A.P. 1925(a)(2)(i) statement.

This Court granted en banc consideration in this matter to address whether the trial court properly notified Father of his right to representation during a dependency hearing and withdrew this Court's prior memorandum. See Order, 2/12/18. Accordingly, we address this issue before resolving the merits of Father's underlying appeal.

The Agency claims that Section 6337 of the Juvenile Act requires the trial court to colloquy a party and appoint counsel, if the party appears at a hearing . See Agency's Brief at Ex. A, at 1. The Agency further claims that Rule 1151(E) of the Pennsylvania Rules of Juvenile Court Proceedings requires that the trial court appoint counsel to a party if counsel is requested. Id. The Agency reasons that "[i]t is evident from the text of the applicable statu[t]es and rules that a party must appear at the hearing to trigger the court's affirmative duty to notify the party of their right to counsel and colloquy the party as to whether they wish to be represented." Id. at Ex. A, at 2.

Finally, the Agency claims that the "panel's decision negatively impacts public policy and frustrates the purpose of federal and state statutes dictating timely permanency for children in foster care." Id. at Ex. A, at 5-6. It states that it is common that parents fail to appear for hearings despite receiving proper notice. Id. Further, the Agency asserts that requiring the court to continue hearings until the parents appear in person and then inquire into their desire to have counsel will significantly delay the completion of six-month permanency hearings required by 42 Pa.C.S. § 6351(e).⁶ Id.

Section 6337 of the Juvenile Act recognizes that "there exists in parents a right to counsel in dependency cases," In re N.B. , 817 A.2d 530, 535 (Pa. Super. 2003) (citation omitted), and provides:

[A] party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party other than a child appears at a hearing without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel.

42 Pa.C.S. § 6337.

Pennsylvania Rules of Juvenile Court...