Parties in Dependency: Proper Notice and Participation Is Essential
The stakes in a dependency matter are extremely high. Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate. The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.
In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child. Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS. A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.
The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone. CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration. In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.
The trial court agreed with CYS and denied the continuance. CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability. The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.
The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order. Mother subsequently filed a timely notice of appeal of the above-described court orders. Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process. Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.
On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation. In making her argument, pointed out three procedural rules. First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331. Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.” Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition. Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….” Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court. Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.” Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”
Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above. First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order. Obviously Mother could not have received service of the Petition per Rule 1331. Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331. Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361. Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363. As a result, there is nothing in the record suggesting Mother was properly served with the summons. Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)). To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself. Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.
Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above. Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate. Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.