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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF J.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
APPEAL OF M.F., PATERNAL
GRANDMOTHER
Appellant No. 2751 EDA 2015
Appeal from the Order Entered August 7, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-000123402014
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 22, 2016
M.F. (“Paternal Grandmother”) appeals, pro se, from a permanency
review order entered August 7, 2015 in the Philadelphia County Court of
Common Pleas, Juvenile Division, that adopted the recommendation of a
master to remove her grandson, J.C. (“Child”), born in April of 2014, from
her home. We dismiss the appeal.
On May 21, 2014, the Philadelphia Department of Human Services
(“DHS”) filed a petition to adjudicate Child dependent. On July 1, 2014, the
trial court adjudicated Child dependent, transferred legal custody of Child to
DHS, and placed Child in kinship foster care with Paternal Grandmother.
The trial court directed that the placement goal for Child was to return to
parent or guardian. Additionally, on that same date, the trial court entered
an aggravated circumstances order, as the parents’ rights had previously
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been involuntarily terminated as to another child. In the order, the trial
court provided that continued efforts should be made toward reunification.
The trial court held a permanency review hearing on November 4,
2014. In a permanency review order entered on that same date, the trial
court found that both parents were non-compliant with the permanency
plan. As a result, the court ordered exploration of the parents voluntarily
relinquishing their parental rights, and additionally ordered that reasonable
efforts to reunify Child with the parents were not required.
On December 19, 2014, DHS filed a petition for a goal change to
adoption. Subsequently, in a permanency review order entered on February
3, 2015, the trial court changed the permanency goal to adoption, with
reunification ruled out as a feasible option.
Master Alexis Ciccone presided over permanency review hearings on
May 1, 2015, June 5, 2015, July 24, 2015,1 and August 7, 2015. At the
master’s permanency review hearing on August 7, 2015, DHS requested
Child’s removal from Paternal Grandmother’s home. DHS presented the
testimony of Katie Kiehle, the adoption worker from Northeast Treatment
Centers (“NET”); Vivian Ebersole, a DHS caseworker; Patience Capote, a
Community Umbrella Agency case manager through Turning Points for
____________________________________________
1
This hearing, which was scheduled due to a request for an emergency
hearing for judicial removal of Child, had to be continued due to technical
difficulties with the digital recorder. Master’s Recommendation -
Continuance and Order, 7/24/15.
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Children; and Lisa Marlana Lugo, a Family Findings Case Manager for
Turning Points for Children. Paternal Grandmother also testified.
At the close of the master’s hearing, DHS argued that Child should be
removed from Paternal Grandmother’s home, as NET, the agency preparing
the family profile, was unable to approve the profile. DHS noted issues with
finances, police activity, assistance in caring for Child, attendance at
scheduled appointments, family history with DHS, and issues with Paternal
Grandmother’s identity matters.2 N.T. 8/7/15, at 42-46. The Child
Advocate joined in this argument. Id. at 46-47. In opposition, Paternal
Grandmother averred that she would never leave Child alone, and
questioned removing Child from the only family he knows. Id. at 49.
Immediately after the hearing, Master Ciccone recommended that Child
should be removed from Paternal Grandmother’s home. The trial court
adopted the master’s recommendation on that same date.
On September 3, 2015, Paternal Grandmother filed a timely notice of
appeal, pro se, and included a concise statement of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her concise
statement, Paternal Grandmother stated:
I feel I was wrongfully mislead [sic] and told [Child] would
return to me with the outcome of a situation that was beyond
____________________________________________
2
Testimony at the master’s hearing revealed that, in the past, Paternal
Grandmother had used multiple social security numbers, dates of birth, and
places of birth. See N.T. 8/7/15, at 42-46.
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my control I would [sic] and have never put my grandson [Child]
I would like to be able to explain my concerns. I am in the
process of getting a stay away order towards my daughter who
defended herself and myself I had no control over her actions
and I am getting restraining order against biological mother and
father of [Child] my grandson is my reason for waking up in the
morning I am very confused about this whole situation and my
grandson and I are paying for grown up individuals [sic] wrong
choices.
Subsequently, Paternal Grandmother filed with this Court a two-page,
handwritten brief essentially stating the same argument.
Our Supreme Court set forth our standard of review for dependency
cases as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010). See also In re
A.B., 19 A.3d 1084, 1093-1094 (Pa. Super. 2011) (stating that this Court
will not infringe upon the juvenile court’s credibility determinations).
We note initially that the trial court did not address the merits of
Paternal Grandmother’s argument in its Pa.R.A.P. 1925(a) Opinion. Instead,
the trial court suggested that Paternal Grandmother had waived all issues on
appeal by her failure to file any exceptions to the master’s recommendation
within three days of her receipt of the recommendation, pursuant to
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Pennsylvania Rule of Juvenile Court Procedure (Pa.R.J.C.P.) 1911.3 The trial
court reasoned that because Paternal Grandmother filed an appeal instead of
exceptions in accordance with Pa.R.J.C.P. 1191, Paternal Grandmother
deprived the trial court of the ability to issue an order that would be
reviewable on appeal. Trial Court Opinion, 10/12/15, at 2-3.
The trial court further suggested that Paternal Grandmother waived all
issues by filing an insufficient concise statement of errors complained of on
appeal. The court found Paternal Grandmother’s concise statement was “too
vague as to afford the trial court the opportunity to address her issues.”
Trial Court Opinion, 10/12/15, at 4. The court continued to explain:
Appellant never avers any specific claim of error. Thus, the trial
court has not been afforded an opportunity to respond as the
Appellant has not fulfilled her duty to file a concise statement.
Id.
In its brief, DHS disagrees with the trial court’s suggestion regarding
Paternal Grandmother’s waiver of all issues because of her failure to file
exceptions, asserting that the trial court adopted the master’s
recommendation on the same day as the master’s hearing and
____________________________________________
3
Pennsylvania Rule of Juvenile Court Procedure 1191(C) provides that a
party may challenge a master’s recommendation by filing a motion
requesting a rehearing before a judge, and averring the reasons for the
challenge within three days of receipt of the recommendation.
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recommendation. DHS asserts, however, that Paternal Grandmother has
waived all issues on appeal due to her deficient concise statement. DHS
further alleges that Paternal Grandmother’s brief fails to comply with the
requirements of the Pennsylvania Rules of Appellate Procedure, and that we
should dismiss her appeal on that basis. DHS Brief at 9-16.
We need not rule on whether the trial court’s acceptance of the
master’s recommendation on the same day the master issued the
recommendation precluded Paternal Grandmother from filing exceptions
because she failed to raise this procedural issue in either her concise
statement of errors complained of on appeal or her appellate brief. As such,
Paternal Grandmother has waived any challenge relating to her obligation to
file exceptions under Pa.R.J.C.P. 1191. Krebs v. United Refining
Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (finding
waiver where an issue is not included in both a concise statement of errors
complained of on appeal and statement of questions involved section of the
brief). Although Paternal Grandmother is proceeding pro se, we will not act
as her lawyer. See Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa.
Super. 1996); Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.
2005). Consequently, we proceed with our analysis of the sufficiency of
Paternal Grandmother’s concise statement and brief.
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Where a concise statement of errors complained of on appeal does not
sufficiently identify the issues raised on appeal, we have found waiver of all
issues on appeal, explaining as follows:
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant
fails adequately to identify in a concise manner the issues sought
to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that
Lord should also apply to Concise Statements which are so
vague as to prevent the court from identifying the issue to be
raised on appeal. In the instant case, Appellant's Concise
Statement was not specific enough for the trial court to identify
and address the issue Appellant wished to raise on appeal. As
such, the court did not address it. Because Appellant’s vague
Concise Statement has hampered appellate review, it is waived.
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (quoting
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)).
Upon review, we are constrained to agree with the trial court and DHS
that Paternal Grandmother’s statement is merely a narrative paragraph and
is devoid of any specific allegation of error. Paternal Grandmother instead
vaguely indicates her confusion and desire to explain her concerns as she
was “wrongfully mislead [sic] and told [Child] would return to [her] with the
outcome of a situation that was beyond [her] control.” Concise Statement of
Errors Complained of on Appeal, 9/3/15.
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We are also constrained to agree with DHS that Paternal
Grandmother’s brief is defective. Pennsylvania Rule of Appellate Procedure
2111 provides as follows:
(a) General rule.-The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following
order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment that
no order requiring a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
(b) Opinions below.-There shall be appended to the brief a
copy of any opinions delivered by any court or other
government unit below relating to the order or other
determination under review, if pertinent to the questions
involved. If an opinion has been reported, that fact and
the appropriate citation shall also be set forth.
(c) Pleadings.-When pursuant to Rule 2151(c) (original
hearing cases) the parties are not required to reproduce the
record, and the questions presented involve an issue raised by
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the pleadings, a copy of the relevant pleadings in the case shall
be appended to the brief.
(d) Brief of the Appellant.-In the Superior Court, there shall
be appended to the brief of the appellant a copy of the
statement of errors complained of on appeal, filed with the
trial court pursuant to Pa.R.A.P. 1925(b). If the trial court
has not entered an order directing the filing of such a
statement, the brief shall contain an averment that no
order to file a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) was entered by the trial
court.
Rules 2114 through 2119 further set forth in great detail the specifics
as to each of the required sections of the brief. See Pa.R.A.P. 2114-2119.
Rule 2101 provides as follows with regard to non-compliance:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the
appeal or other matter may be quashed or dismissed.
We have held that an appeal may be dismissed and/or quashed where
the deficiencies of the appellant’s brief are such that we are unable to
conduct a meaningful review. Karn v. Quick & Reilly, Incorp., 912 A.2d
329, 337 (Pa. Super. 2006); Branch Banking & Trust v. Gesiorski, 904
A.2d 939, 943 (Pa. Super. 2006); Commonwealth v. Maris, 629 A.2d
1014, 1017 (Pa. Super. 1993). Of particular importance, an appellant must
include a Statement of Questions Involved. Branch Banking & Trust, 904
A.2d at 94; Maris, 629 A.2d at 1016. As we indicated in Maris:
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“This Court possesses discretionary authority to quash, dismiss
or deny allowance of appeal based upon the substantial defects
of appellant’s brief. Pa.R.A.P. 2101.” Commonwealth v. Ely,
381 Pa.Super. 510, 513, 554 A.2d 118, 119 (1989). . . . “We
decline to become appellant’s counsel. When issues are not
properly raised and developed in briefs, when the briefs are
wholly inadequate to present specific issues for review a Court
will not consider the merits thereof.” Sanford, supra, 299
Pa.Super. at 67, 445 A.2d at 150. . . .
Maris, 629 A.2d at 1017.
Moreover, we cannot accord special relief to an appellant merely
because of her pro se status. See id. As this Court stated in
Commonwealth v. Adams, supra:
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
Adams, 882 A.2d at 498.
Here, as in Maris, Paternal Grandmother’s brief fails to include a
statement of jurisdiction, order or other determination in question, summary
of argument, or statement of questions involved, and the statement of the
case and argument sections are lacking. See Maris, 629 A.2d at 1015-17.
Likewise, Paternal Grandmother’s brief presents us with the same situation
as in Karn, where we also deemed the appellant’s issues waived due to an
improper Rule 1925(b) concise statement. In Karn, the appellant’s brief did
not include statements of the scope and standard of review, a short
conclusion stating the precise relief sought, or a copy of the statement of
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errors complained of on appeal. Moreover, the statement of the questions
involved and argument sections of the appellant’s brief did not conform to
the Rules of Appellate Procedure and failed to cite appropriate legal
authority. See Karn, 912 A.2d at 337.
Similarly, in this matter, Paternal Grandmother’s brief consists of a
two-page, hand-written narrative, along with the trial court opinion.
Paternal Grandmother largely references the importance of keeping family
together, and states that her grandson was happy and healthy, and doing
well. However, aside from including the trial court opinion, this submission
fails to follow the format of, and fails to include the required information for,
an appellate brief, thus fatally hampering any meaningful review. See
Maris, 629 A.2d at 1017. Despite our efforts to liberally construe Paternal
Grandmother’s brief, we are constrained to find that her brief is defective
and subjects this appeal to dismissal. See Rivera, 685 A.2d at 1013.
Even if we were to review the trial court’s decision, we observe that
the record in this matter supports the trial court’s adoption of the master’s
finding that it was not in the best interests of Child to remain in the home of
Paternal Grandmother, and that Child should be removed.
Regarding the placement of a child, a panel of this Court stated:
When a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on
what the parent wants or which goals the parent has achieved.
See In re Sweeney, 393 Pa.Super. 437, 574 A.2d 690, 691
(1990) (noting that “[o]nce a child is adjudicated dependent. . .
the issues of custody and continuation of foster care are
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determined by the child’s best interests”). Moreover, although
preserving the unity of the family is a purpose of the Act,
another purpose is to ‘provide for the care, protection, safety,
and wholesome mental and physical development of children
coming within the provisions of this chapter.’ 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, ‘[t]he relationship of parent and child is
a status and not a property right, and one in which the state has
an interest to protect the best interest of the child.’ In re
E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
The primary purpose of the disposition of a dependent child is to
examine what is in the best interest of the child. 42 Pa.C.S.A. § 6351(a); In
the Interest of Z.W., et al., 710 A.2d 1176, 1178 (Pa. Super. 1998). See
also In re Tameka M., 525 Pa. 348, 354, 580 A.2d 750, 753 (1990)
(stating, “[i]n ordering a disposition under Section 6351 of the Juvenile Act,
the court acts not in the role of adjudicator reviewing the action of an
administrative agency, . . . rather the court acts pursuant to a separate
discretionary role with the purpose of meeting the child’s best interests.”)
(quoting In re Lowry, 506 Pa. 121, 484 A.2d 383 (1984)).
Following an examination and findings of factors provided in 42
Pa.C.S. § 6351(f) and (f.1), regarding matters to be determined at the
permanency hearing, the trial court must also find that DHS has met its
burden that a modification of placement is in Child’s best interests. See 42
Pa.C.S. § 6351(g).
Here, DHS presented concerns relating to Paternal Grandmother’s
long-term health issues and finances. DHS also presented concerns relating
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to Paternal Grandmother’s adult daughter, C.C., and her role in caring for
Child, and concerns relating to police activity at the home in June of 2015.
N.T., 8/7/15, at 8-13, 21-24, 34-35. Critically, the evidence indicated that
Paternal Grandmother did not promptly report the police incident to the
appropriate agency, and only mentioned it to the adoption caseworker
several days later, when she was present for adoption training. Id. at 13-
14, 23-24, 29-31.
Additionally, Paternal Grandmother subsequently failed to appear for a
parenting capacity appointment scheduled for the end of July 2015. N.T.
8/7/15, at 14, 24. As a result, the adoption caseworker was unable to
approve the family profile. Id. at 8. DHS further presented evidence
relating to the family’s lengthy history with DHS dating back to 1996, the
criminal history of the family, and Paternal Grandmother’s having multiple
Social Security numbers, dates of birth and reported birth locations. Id. at
19-21, 28, 33, 38-41. Based on this evidence, we would have no hesitation
in affirming the Master’s finding and recommendation, adopted by the trial
court, that Child’s removal from the home was in his best interests. In the
Interest of Z.W.; see also In re Tameka M.
Accordingly, based on the foregoing analysis, we dismiss the appeal.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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