In re Interest of A.D.-G.

263 A.3d 21

In the INTEREST OF: A.D.-G., a Minor

Appeal of M.G., Father

No. 544 MDA 2021

Superior Court of Pennsylvania.

Submitted July 26, 2021

Filed September 03, 2021

Anthony E. Miley, Gettysburg, for Goehres, appellant.

Paul C. Primrose, Chambersburg, for Franklin County Children and Youth Services, appellee.

Jens C. Wagner, Chambersburg, for Franklin County Children and Youth Services, appellee.

Theresa M. Yaukey, Chambersburg, for Franklin County Children and Youth Services, appellee.

Kristen B. Hamilton, Chambersburg, Guardian Ad Litem, appellee.

Michael J. Connor, Chambersburg, for Griswold, appellee.

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.^*

OPINION BY PANELLA, P.J.:

M.G. ("Father") appeals from the order entered March 29, 2021, which found his daughter, A.D.-G. ("Child"), remained dependent, denied his motion to terminate the dependency, found aggravated circumstances based on Father's history of sexual abuse, and directed no further efforts be made to reunify him with Child.¹ Father contends that the juvenile court violated his right to due process, and that the evidence did not support the court's dependency finding. Because we discern no error of law or abuse of discretion, we affirm.

Franklin County Children and Youth Service ("CYS") became involved with Child at the time she was born in February 2019, when she and Mother tested positive for illegal substances. See Recommendation for Adjudication and Disposition, 4/2/19, at 1-2. Mother consented to a safety plan, which provided she would have no unsupervised contact with Child. See id. at 2-3. CYS learned, however, that Mother violated the plan by having unsupervised contact. See id. at 3-4.

In response, CYS obtained emergency protective custody of Child pursuant to a verbal order which the court confirmed in writing on March 19, 2019. The court scheduled a shelter care hearing but continued the matter at Mother's request and consolidated it with Child's adjudication and disposition hearing. The consolidated hearing occurred before a hearing officer on March 28, 2019, after which the hearing officer issued a recommendation that Child be adjudicated dependent. The court adopted the recommendation on April 2, 2019, and Child has remained in foster care since then.

At the time of the adjudication of dependency, CYS did not know Father was Child's natural father. Mother had identified another man, J.D., as Child's father, and J.D. was listed as Child's father in court filings through October 2019. The record indicates J.D. was incarcerated at the time of Child's adjudication. See id. at 4-6; N.T., 2/9/21, at 11. After a paternity test revealed J.D. was not Child's father, Mother provided CYS with a vague description of another man. See N.T., 2/9/21, at 12. CYS ultimately identified the man as Father. See id. A paternity test in November 2019 confirmed that Father was Child's natural father. See id. at 12-13.

Significantly, CYS discovered soon thereafter that Father is a registered sexual offender. Father had sexually abused his own sister, beginning when she was about one year old, and he was eleven years old. See id. at 22-23, 28-29, 36. The sexual abuse continued until Father's sister was eleven years old, and he was twenty-one years old and had been married for two years. See id. 28-29, 36-37. As a result of this, Father pled guilty to misdemeanor indecent assault and was found to be a sexually violent predator ("SVP").² See id. at 123; CYS Exhibits 1-3 (documents relating to Father's conviction and SVP status).

On December 13, 2019, CYS filed a motion requesting that the juvenile court find aggravated circumstances, based on Father's conviction for indecent assault. The hearing officer recommended a finding of aggravated circumstances on October 7, 2020. In addition, the hearing officer recommended that no further efforts be made to reunify Child and Father. On October 8, 2020, the court adopted the recommendation. Father filed a motion challenging the hearing officer's recommendation on October 16, 2020, and an amended motion on October 20, 2020. By order entered on October 23, 2020, the court scheduled a de novo hearing.

On November 6, 2020, Father also filed a "Motion to Dismiss/Terminate" Child's dependency. He argued he was not notified of the initial proceedings in this matter, such as Child's placement in foster care and adjudication, that he never had the opportunity to defend himself in those proceedings, and that the court never determined whether he could provide Child with proper care. Father also requested a hearing so that the juvenile court could determine his fitness to provide proper care.

Ultimately, the juvenile court held its de novo hearing on CYS's motion for a finding of aggravated circumstances and addressed Father's motion to end Child's dependency on February 9, 2021. CYS presented testimony from its caseworker, Gayle Schreiber, and called Father as on cross-examination. CYS then presented the testimony of Child's foster mother, S.B.; Alternative Behavioral Consultants parent educator, Charity Brallier, who performed an assessment of Father's parenting ability; and Rita Lukas, president of Father's previous sexual offender treatment provider, FAACT, Inc. Father presented testimony from Tracey Boyle, a licensed professional counselor who performed an assessment of his risk of harm to Child. He also testified on his own behalf.

On March 29, 2021, the juvenile court entered an order (1) finding Child remained dependent, (2) denying Father's motion to end Child's dependency, (3) finding aggravated circumstances existed due to Father's indecent assault conviction and status as an SVP, and (4) directing no further efforts be made to reunify Father and Child.³ Father timely filed a notice of appeal on April 28, 2021, along with a concise statement of errors complained of on appeal.⁴

Father now purports to raise the following claims for our review:

I. Whether it was an abuse of discretion for the [juvenile] court to find aggravated circumstances against [ ] [F]ather before there was any adjudication of child dependency as against Father[?]

II. Whether the [juvenile] court properly adjudicated dependency when [C]hild was adjudicated dependent prior to [Father] being notified of a dependency proceeding; [Father] did not have opportunity to challenge dependency adjudication; [C]hild was never alleged to be dependent as against [ ] [F]ather and while in [Father's] care[?]

III. Whether [Father's] status as an SVP ... was a proper basis to deny [Father] custody of [C]hild and terminate dependency when [Father's] SVP status came from conduct beginning while [Father] was a juvenile, and was committed prior to the birth of any of his children[?]

IV. Whether [Father's] due process rights were violated when Father requested a rehearing of shelter care, when the [juvenile] court held an aggravated circumstances hearing before there was a finding of dependency as to Father and, when no petition alleging dependency was ever filed as against [Father?]

Father's Brief at 5-6.

Before beginning our review, we address Father's defective presentation of his claims on appeal. While Father includes four claims in his statement of questions involved, he divides the argument in his brief into two sections, each containing numerous subclaims, which he does not divide under headings or organize in any other coherent fashion. Cf. Pa.R.A.P. 2119(a) ("The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein"). Father's noncompliance with our rules is not so substantial as to impede meaningful appellate review and require dismissal of his entire appeal, but we caution his counsel to comply strictly with our briefing rules in any future appeals. See Pa.R.A.P. 2101 ("[I]f the defects are in the brief ... of the appellant and are substantial, the appeal or other matter may be quashed or dismissed."); Krauss v. Trane U.S. Inc. , 104 A.3d 556, 584 (Pa. Super. 2014) ("When deficiencies in a brief hinder our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.").

Turning to the merits, we divide Father's claims into two categories for ease of disposition. Father contends (1) that the juvenile court violated his right to due process, and (2) that the evidence does not support the court's finding that Child is a dependent child pursuant to the Juvenile Act.

Regarding Father's assertion that the court violated his right to due process, this raises a question of law for which our standard of review is de novo . See Interest of S.L. , 202 A.3d 723, 729 (Pa. Super. 2019). A parent has the right to due process in any dependency case involving his or her child. See , e.g. , In Interest of Jones , 286 Pa.Super. 574, 429 A.2d 671 (1981). This right is not without limit, however. See S.T. v. R.W. , 192 A.3d 1155, 1161 (Pa. Super. 2018) ("Due process is flexible and calls for such procedural protections as the situation demands."). " ‘[P]rocedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.’ " Id. at 1161 (quoting J.M. v. K.W. , 164 A.3d 1260, 1269 (Pa. Super. 2017) ).

We begin with Father's due process claims. Father contends he was not notified of the initial dependency proceedings in this case and did not receive the opportunity to defend against CYS's dependency allegations. See Father's Brief at 10, 15-16. Father further argues the juvenile court failed to require CYS to file a dependency petition against him, specifically. See id. at 11-12, 15. He maintains CYS never alleged Child was dependent while in his care, and that its failure to file a petition deprived the court of jurisdiction to make a dependency...