In re Interest of H.K., 474 WDA 2017

• Decision Date: 13 October 2017
• Docket Number: No. 474 WDA 2017,474 WDA 2017
• Citation: 172 A.3d 71
• Parties: IN the INTEREST OF: H.K. Appeal of: Greene County Children and Youth Services
• Court: Pennsylvania Superior Court

172 A.3d 71

IN the INTEREST OF: H.K.

Appeal of: Greene County Children and Youth Services

No. 474 WDA 2017

Superior Court of Pennsylvania.

Submitted August 15, 2017

Filed October 13, 2017

Gregory C. Hook, Waynesburg, for appellant.

Jessie R. Minerich, Pittsburgh, for appellee.

David J. Russo, Waynesburg, for P.K. and W.K., participating parties.

BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

OPINION BY STABILE, J.:

Greene County Children and Youth Services ("CYS") appeals from the order entered March 2, 2017, which dismissed its dependency petition with respect to H.K. ("Child"), a female born in April 2007, and returned Child to the care of her parents, W.K. and P.K (collectively, "Parents"). After careful review, we reverse the trial court's March 2, 2017 order, reinstate the December 28, 2016 order adjudicating Child dependent, and remand for further proceedings consistent with this Opinion.

We summarize the relevant factual and procedural history of this matter as follows. CYS filed an application for emergency protective custody of Child on December 16, 2016. In its application, CYS averred that it received a report alleging that Child was being sexually abused by her brother. Application for Emergency Protective Custody, 12/16/16, at 3. The report further alleged that Parents were aware of the abuse, but were doing nothing to stop it. Id. The Honorable Louis Dayich granted the application and entered an order for emergency protective custody, placing Child in foster care. Child remained in foster care pursuant to a shelter care order entered December 20, 2016.

On December 22, 2016, the parties appeared for a dependency hearing before Master Kimberly Simon–Pratt. Following the hearing, on December 27, 2016, Master Simon–Pratt issued a recommendation that Child be adjudicated dependent and remain in foster care. That same day, Parents filed a document entitled "Request for De Novo Hearing," requesting a new dependency hearing before a judge. Judge Dayich accepted Master Simon–Pratt's recommendation and adjudicated Child dependent by order dated December 27, 2017, and entered December 28, 2017.

On January 6, 2017, Greene County President Judge, the Honorable Farley Toothman ("the trial court" or "the court"), granted Parents' "Request for De Novo Hearing," and scheduled a dependency rehearing.¹ The rehearing commenced before the trial court on January 30, 2017, and continued on March 2, 2017. On March 2, 2017, counsel for Parents made an oral motion requesting that the court dismiss CYS's dependency petition. Specifically, counsel for Parents argued that the court violated the Rules of Juvenile Court Procedure by failing to conduct the rehearing within seven days of receiving Master Simon–Pratt's recommendation, and that the court's procedural misstep deprived it of jurisdiction to further consider CYS's petition.² N.T., 3/2/17, at 21. After interviewing Child, the court recessed the rehearing to consider Parents' motion. Id. at 93–95. The court ultimately granted Parents' motion, and entered an order concluding that it lacked jurisdiction, and that it was in Child's best interests to be returned immediately to the care of Parents. CYS timely filed a notice of appeal on March 24, 2017, along with a concise statement of errors complained of on appeal.

CYS now raises the following issues for our review, which we have reordered for ease of disposition.

[1.] Whether the parents['] filing on December 27, 2016 entitled "request for de novo hearing" was defective for its failure to follow Rule 1191 of the Rules of Juvenile Court Procedure in that the parents failed to aver reasons for the challenge as required by Rule 1191(c)[?] Additionally, whether the request was defective in that it was not served on all parties as required by law in that the parents failed to serve the guardian ad litem with their pleading[?]

[2.] Whether the Trial Court committed error in determining that its failure to conduct a re-hearing pursuant to Rule 1191 of the Rules of Juvenile Court Procedure result[ed] in the Trial Court [being] "without jurisdiction to further consider the petition of [CYS]"?

3. Whether the Trial Court committed error or violated the due process rights of [CYS] by determining that it was in the best interest to return the minor child to the custody of her parents when the Trial Court had not heard the evidence that would have been presented by [CYS] had the Court allowed the hearing to continue[?]

CYS's Brief at 1–2.

In dependency matters, we review the trial court's order pursuant to an abuse of discretion standard of review. In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). As such, we must accept the court's findings of fact and credibility determinations if they are supported by the record, but we need not accept the court's inferences or conclusions of law. Id. In addition, when reviewing a court's conclusion that it lacks subject matter jurisdiction, our standard of review is de novo. S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014) (citing Beneficial Consumer Discount Co. v. Vukman, 621 Pa. 192, 77 A.3d 547, 550 (2013) ).

Pursuant to the Juvenile Act, and our Rules of Juvenile Court Procedure, the president judge of a court of common pleas, or his or her designee, may appoint masters to conduct hearings in select dependency matters. 42 Pa.C.S.A. § 6305 ; Pa.R.J.C.P. 1185, 1187.³ However, parties in dependency matters have a right to a hearing before a judge. 42 Pa.C.S.A. § 6305(b) ; Pa.R.J.C.P. 1187(B)(1). Prior to the commencement of any hearing before a master, the master must inform the parties of that right. 42 Pa.C.S.A. § 6305(b) ; Pa.R.J.C.P. 1187(B)(1). If a party objects to having his or her case heard by the master, a hearing before a judge must be scheduled immediately.⁴ 42 Pa.C.S.A. § 6305(b) ; Pa.R.J.C.P. 1187(B)(2).

Even if the parties consent to a hearing before a master, the master's recommendation is subject to approval by a judge. Pa.R.J.C.P. 1191, cmt. The Juvenile Act provides that "[a] rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations become the findings and order of the court when confirmed in writing by the judge." 42 Pa.C.S.A. § 6305(d). In addition, the Rules of Juvenile Court Procedure provide the following guidance on how and when a party may challenge a master's recommendation, and how and when a trial court may accept that recommendation.

C. Challenge to Recommendation. A party may challenge the master's recommendation by filing a motion with the clerk of courts within three days of receipt of the recommendation. The motion shall request a rehearing by the judge and aver reasons for the challenge.

D. Judicial Action. Within seven days of receipt of the master's findings and recommendation, the judge shall review the findings and recommendation of the master and:

(1) accept the recommendation by order;

(2) reject the recommendation and issue an order with a different disposition;

(3) send the recommendation back to the master for more specific findings; or

(4) conduct a rehearing.

Pa.R.J.C.P. 1191(C)–(D).

With this authority in mind, we now turn to the issues raised by CYS on appeal. In its first issue, CYS argues that the trial court erred by granting Parents' "Request for De Novo Hearing." CYS's Brief at 9–11. CYS argues that Parents' failed to comply with Rule 1191(C), because they filed a request for a "de novo hearing" rather than a "rehearing," and because they did not aver reasons for their challenge to Master Simon–Pratt's recommendation. Id. at 9–10. CYS further argues that Parents failed to serve their request on Child's guardian ad litem. Id. Finally, CYS argues that Judge Dayich complied with Rule 1191(D) by accepting Master Simon–Pratt's recommendation within seven days, that Parents did not have a right to a rehearing under the Rules, and that the trial court erred by granting a rehearing after Judge Dayich accepted the recommendation. Id. at 10.

In its opinion, the trial court explained its decision to accept Parents' "Request for De Novo Hearing" as follows.

While [ Rule 1191(C) ] governs the requirements the attorney must follow in submitting his motion in the matter, it places no restriction on the discretion of the Court in accepting defective pleadings.

In this matter, the Court had to weigh any procedural defects in form and service of the petition against the best interests of the minor child in a matter involving a child removed from the parental home due to allegations of sibling sexual abuse.

Finally, the record from the January 30, 2017 and March 2, 2017 hearing does not show a prejudicial effect resulting from the Court accepting the petition upon any part[y].

Therefore, the Court respectfully submits that it did not err in accepting [Parents'] "Request for De Novo Hearing."

Trial Court Opinion, 4/20/17, at 10 (unpaginated).

We agree with CYS that the trial court erred by scheduling a rehearing on its dependency petition. Critically, neither the Juvenile Act, nor the Rules of Juvenile Court Procedure, provides that parties have a right to a rehearing after a dependency hearing before a master. The Juvenile Act provides that a court "may" order a rehearing, but only upon cause shown. 42 Pa.C.S.A. § 6305(d) ; see also In re A.M., 365 Pa.Super. 516, 530 A.2d 430, 432 (1987) (explaining that, since the court "must exercise discretion as to whether or not such rehearing must be granted, it cannot be maintained that a respondent has a right to review. Obviously, the legislature intended to grant the juvenile judge authority to rehear a case heard by a master if he deemed it necessary.").

Similarly, the Rules of Juvenile Court Procedure provide that a party may request a rehearing, but contain no provision requiring that a party's request must be granted.⁵ Pa.R.J.C.P. 1191(C)–(D). While parties have a right to a hearing before a judge, any party seeking to exercise that right must...