In re M.M.

Appeal from the Order Entered January 18, 2023, in the Court of Common Pleas of Philadelphia County, Juvenile Division at No(s): CP-51-DP-0002129-2015.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

OPINION

KUNSELMAN, J.

In this matter, we decide whether a juvenile court's dependency adjudication may serve as a basis to amend a non-party's report of child abuse from "indicated" to "founded," pursuant to the Child Protective Services Law (CPSL). See 23 Pa.C.S.A. § 6303(a) (definition of "founded report"). Pursuant to the CPSL, certain judicial adjudications - including a dependency adjudication under the Juvenile Act^[1] - may serve as the basis for designating a report as "founded," so long as the judge determined there was clear and convincing evidence of child abuse. See id. When a report is "founded," the name of the perpetrator is placed on a statewide registry, which in turn triggers a litany of consequences. In this case, the Juvenile Division of the Philadelphia County Court of Common Pleas (the juvenile court) adjudicated dependent M.M., the 12-year-old son of J.D.-S. The dependency proceedings

began after the death of M.M.'s sibling. Allegations of child abuse were made against J.D.-S. (Mother) and E.M. (Appellant), a family friend. In its adjudicatory order, the court found child abuse and determined that the reports of Mother and Appellant should be amended from "indicated" to "founded." Appellant appealed, maintaining that the juvenile court exceeded its authority under the CPSL, because she was not a party to the underlying dependency action. After careful review, we agree, and therefore we vacate that provision of the adjudicatory order pertaining to Appellant.

The record discloses the following factual history. Philadelphia Department of Human Services (DHS) had been intermittently involved with Mother and her Children for over a decade.^[2] In December 2021, Appellant moved into Mother's home to help Mother care for the Children. At the time, the Children (son M.M., daughter C.S., and son Ch.S.) were 11, 12, and 13 years old, respectively. On February 19, 2022, C.S. (Decedent) died; she had just turned 13. The circumstances surrounding her death are tragic.

The [child protective services] report alleged that the [Decedent] was taken to Saint Christopher's Hospital for Children by emergency medical services after she was found nonresponsive that morning. CPR was administered without success, and the [Decedent] was pronounced dead at the hospital. The report alleged that Mother and a family friend [Appellant], resided in the home with the [Decedent] and the [two other] Children. The CPS report further alleged that Mother and [Appellant] felt the [Decedent's] anorexia

was [reoccurring] because she had not been eating as much as normal. [Appellant] stated that when she checked on the [Decedent] around 7:00 AM, she was slow to respond, disoriented, and her heartbeat was racing. [Appellant] checked on the [Decedent] two hours later and she was nonresponsive. The report further alleged that the [Decedent] was taken to the hospital wearing an adult diaper. This report was indicated.

That same day, DHS received a supplemental [child protective services] report alleging that once the [Decedent] arrived at the hospital, staff performed CPR for 25 minutes, which proved to be unsuccessful. It was also reported to the Philadelphia Police Department that the [Decedent] had lividity^[3] in her right cheek, right earlobe, back, and buttocks, and that her pupils were dialed six inches. The report further alleged that Mother and [Appellant] resided in the home […]. Based on the lividity of the [Decedent's] body, the Philadelphia Police Department [] believed that [Appellant's] account that the [Decedent] was alive at 7:00 AM was incorrect. This raised concerns that there was a delay in medical care that could have contributed to her death.

On February 22, 2022, DHS received [another] supplemental [child protective services] report […]. This report alleged that the [Decedent] slept in the same bed as [Appellant]. The report further alleged that the [Decedent] had been refusing food for days and that she was wearing a diaper because she was too weak to walk to the bathroom. The [] report alleged that at 7:00 AM, the [Decedent] reportedly woke up and [Appellant] noticed that her heart was racing. The report alleged that [Appellant] left the room, went back to sleep, and when she returned two hours later, the [Decedent] was cold to the touch and nonresponsive.

Trial Court Opinion, 3/8/23 (T.C.O.), at 2-3 (style adjusted) (footnote added) (citations to the record omitted).

In March 2022, DHS obtained an order of protective custody for the Decedent's surviving brothers, M.M. and Ch.S. Two days after the order of protective custody, Ch.S. went "AWOL."^[4] Meanwhile, DHS filed a dependency petition against Mother, alleging that M.M. was without proper parental care or control. In April 2022, DHS determined there was substantial evidence of abuse, and thus DHS "indicated" the report of child abuse and named Mother and Appellant as perpetrators for their failure to provide the Decedent with necessary medical care.

The juvenile court conducted dependency proceedings over the course of four dates: May 4, 2022; July 19, 2022; October 20, 2022; and January 18, 2023. Evidently, the proceedings were continued on each on the first three dates, culminating with a substantive adjudicatory hearing on January 18, 2023. Only the transcript for the final January date was made a part of the record. As far as we can discern from record, the appellate briefs and the T.C.O., the following procedural history transpired:

On the first hearing date, May 4, 2022, Appellant appeared before the dependency court in answer to a witness subpoena.^[5] At the conclusion of that

first date, the dependency court appointed counsel to represent Appellant in an "unassigned role." Also on this date, DHS notified Appellant, pursuant to CPSL, that the report of child abuse against her was deemed "indicated." The court evidently heard testimony from DHS about the death of Decedent, and the Agency's subsequent investigation. See DHS's Brief at 3. Later that month, on May 26, 2022, Mother was criminally charged with third-degree murder and endangering the welfare of a child.

The dependency proceedings resumed on July 19, 2022. On this second date, Mother's counsel requested a continuance, which the court granted. Appellant and her lawyer were present for the second day. Appellant's counsel objected to the dependency court's jurisdiction over Appellant, maintaining that Appellant was a non-party and that she had not been served with any sort of petition. Appellant's counsel also informed the court that she could not access the sealed juvenile docket, because Appellant was not a party to the dependency proceedings. DHS countered that it had informed Appellant's counsel, via email, of its witness list and exhibits 30 days prior to the hearing. DHS also said that it sent a letter to Appellant informing her that the child abuse report against her was "indicated." The court agreed with DHS, noting that Appellant was aware of the evidence and testimony against her, and, because Appellant's counsel was present, Appellant must have received notice. Id. at 5.

The proceedings resumed on October 20, 2022. On this third date, Appellant's counsel renewed her jurisdiction objection and further argued that

while DHS emailed a redacted version of the dependency petition, service was still deficient. The court determined that if notice had been defective originally, it was cured by Appellant's signature of her subpoena in July and her receipt of the emailed, redacted dependency petition.^[6]

The proceedings culminated on the fourth and final date, January 18, 2023, which we understand to be the substantive hearing. Counsel for Appellant re-raised the jurisdiction and notice objections. Appellant's counsel reasoned that even if Mother's dependency petition somehow sufficed as notice, notice was still defective because the narrative contained in the petition did not allege any specific abuse or neglect on the part of Appellant - only on the part of Mother. See N.T., 1/18/23, at 9-11. Appellant maintained that she had never received a formal written petition, summons, or other documentation explaining that DHS sought to establish a "finding" of child abuse against her through this juvenile court hearing. See id. at 11. The court overruled Appellant's objections and proceeded with witness testimony.

The DHS investigative social worker testified about the allegations in the child protective services reports. In addition to the allegations mentioned above, the social worker testified that Appellant told her of the following: that Appellant moved into the home to help Mother care for the Children; that the Children considered Appellant to be a maternal aunt; that the Decedent was

being cyber-bullied prior to her death, which may have contributed to her suspected anorexia; that the Decedent wore adult diapers because she was too weak to walk to the bathroom; and that the Decedent did not receive any medical treatment for these concerns. See T.C.O. at 4-5 (citations to the record omitted).

The social worker also testified to the deplorable living conditions: there were animal feces and urine throughout the house; there was a foul odor in each room; there were no sheets on the Children's beds; and the mattresses were stained with urine. Moreover, Children were not up to date on routine medical or dental care. The Children did not have seasonally appropriate clothing; the Children were unkempt; and...