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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: YORK COUNTY OFFICE :
OF CHILDREN YOUTH & FAMILIES :
:
:
:
: No. 966 MDA 2017
Appeal from the Order Entered May 19, 2017
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000218-2015
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 08, 2018
York County Office of Children Youth and Families (CYF) appeals from
the order entered May 19, 2017, in the Court of Common Pleas of York County,
that, inter alia, terminated the dependency adjudication of E.C., a minor,1
returned legal and physical custody of E.C. to his father, T.C., Sr. (Father),
vacated ab initio the dependency adjudication, directed expungement of the
adjudication, and vacated all prior orders awarding custody or educational
rights to anyone other than Father. CYF contends the trial court erred and
abused its discretion in (1) vacating ab initio the adjudication of dependency
of E.C., directing the dependency order and any findings of dependency be
expunged, and vacating all prior orders awarding custody or educational rights
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Retired Senior Judge assigned to the Superior Court.
1 E.C. turned 18 years of age while this appeal was pending in this Court.
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to anyone other than Father, based upon its finding that E.C. was not credible
in his allegations of abuse by his father, and (2) returning legal and physical
custody of a dependent child, E.C., to his father, a resident of Virginia, in
violation of the Interstate Compact for the Placement of Children (ICPC).2 See
CYF’s Brief at 5. Based upon the following, we affirm in part, and reverse in
part.
This dependency case was initiated after CYF received a referral on
September 17, 2015, regarding E.C., due to allegations of physical abuse of
E.C. by Father and drug and alcohol usage by Father.3 On September 24,
2015, CYF filed an application for emergency protective custody. On
September 25, 2015, the Honorable Andrea Marceca Strong granted CYF’s
application, transferring legal and physical custody of E.C., then 16 years of
age, to CYF. See Order for Emergency Protective Custody, 9/25/2015. A
shelter care hearing was held on September 28, 2015, attended by Father and
E.C.’s mother, L.W. (Mother).4 By order dated September 29, 2015, Judge
Strong adopted the recommendation of the Master that E.C. remain in shelter
care. On September 30, 2015, CYF filed a dependency petition, alleging E.C.
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2 See 62 P.S. § 761.
3 See Application for Emergency Protective Custody, 9/24/2015, at 3 ¶1.
4 Mother was initially identified as T.B., but the error was subsequently
corrected to reflect her name as L.W. See N.T., 9/28/2015, at 29;
Dependency Petition, 9/30/2015, at ¶7.
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to be a dependent child, pursuant to 42 Pa.C.S. § 6302, due to lack of proper
parental care and control, and also alleging physical abuse of E.C. by Father
based upon the referral received by CYF.5
On November 16, 2015, a dependency hearing was held before Judge
Strong, and Judge Strong adjudicated E.C., finding:
The child is without proper [parental] care or control,
subsistence, education as required by law, or other care or
control necessary for his physical, mental, or emotional
health, or morals.
Order of Adjudication, 11/16/2015, at 1, quoting 42 Pa.C.S. § 6302,
“Dependent Child”(1).6 The trial court found that “[a]ll parties present are in
agreement that the child is dependent based on lack of proper parental care
or control,”7 ordered legal and physical custody of E.C. remain with CYF, and
directed E.C. be placed by CYF at United Methodist Home. Id. at 1. The court
further ordered that “[t]he finding of abuse is deferred to a later date and may
be pursued upon praecipe to schedule a hearing being filed …”. Id. at 2.
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5The dependency petition alleged Mother was residing in South Carolina. See
Dependency Petition, 9/30/2015, at 4 ¶7.
6 At the dependency hearing, the trial court incorporated into the record an
October 6, 2015, comprehensive psychological evaluation completed by Dr.
Hugh S. Smith, of Hugh S. Smith, Ph.D & Associates, P.C. Dr. Smith
recommended that E.C.’s case continue to be managed through CYF and that
an out of home placement would benefit E.C. See CYF Exhibit 1 at 11, and
N.T., 11/16/2016, at 15.
7 Mother was not present at the hearing. N.T., 11/15/2016, at 2. Mother
indicated she was available by phone. Id.
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In addition, Judge Strong specifically stated on the record that “we only
make the [dependency] finding based on lack of proper parental care based
on the parent/child conflict with [F]ather and the unavailability of [M]other.”
N.T., 11/16/2015, at 17. Before the close of the hearing, Judge Strong
“remind[ed] [M]other of her right to be represented by counsel,” and
“remind[ed] all parties of their right to file an appeal of th[e] decision within
30 days.” Id. at 18. No appeals were filed from the dependency adjudication.
Regular review hearings were held periodically throughout this case.8
On February 29, 2016, CYF filed a motion for modification of placement, to
move E.C. from group home placement at United Methodist Home to shelter
care placement at York County Youth Development Center due to concerns
regarding E.C.’s behavior. On March 1, 2016, CYF’s motion was granted by
the Honorable N. Christopher Menges, and an order was entered continuing
E.C. in CYF’s legal and physical custody for placement in shelter care. On
March 2, 2016, at the permanency review/shelter care hearing, Judge Menges
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8See N.T., 1/14/2016 (status review hearing before Jeffrey T. Bizer, Esquire,
Juvenile Master); N.T., 3/2/2016 (permanency review hearing before the
Honorable N. Christopher Menges); N.T., 6/1/2016 (status review hearing
before Judge Menges); N.T., 8/23/2016 (permanency review hearing before
Juvenile Master Bitzer); N.T., 2/13/2017 (permanency review hearing before
Judge Menges). The November 23, 2016 status review hearing before Judge
Menges was cancelled.
Father was present at the hearings on January 14, 2016, March 2, 2016,
and August 23, 2016; he was not present at the hearings on June 1, 2016 and
February 13, 2017, nor did counsel appear on his behalf at those hearings.
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ordered E.C. to remain in shelter care. Thereafter, CYF filed a motion for
modification of placement when a group home space became available for E.C.
at Concern Treatment Unit for Boys, effective June 17, 2016. The motion was
granted by Judge Menges by order entered June 15, 2016.
A permanency review hearing was held on August 23, 2016. Relevant
to this appeal, Father advised that the military would be relocating him to Fort
Belvoir, Fairfax County, Virginia, on September 1, 2016. See N.T.,
8/23/2016, at 11. See also id. at 8. At the hearing, the issue of the ICPC9
was discussed as it related to E.C.’s visitation and possible reunification with
Father who would be living outside Pennsylvania. Id. at 9-10.
On October 20, 2016, CYF filed a motion to schedule dispositional
hearing to address E.C.’s out of state and unsupervised visitation with Father.
A hearing was convened on October 27, 2016 on CYF’s motion. On that date,
Father’s new counsel entered her appearance and filed, on behalf of Father, a
motion to terminate dependency or in the alternative for a change of
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9 Regarding the ICPC, we note:
The ICPC is a statutory agreement among member states, the
District of Columbia, and the U.S. Virgin Islands authorizing them
to work together to ensure that children who are placed across
state lines receive adequate protection and support services. The
ICPC establishes procedures for the placement of children and
assigns responsibility for agencies and individuals involved in
placing children.
Pennsylvania Dependency Benchbook, at p. 14-9 (Rev. 2014).
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placement to Father’s home. Father’s counsel requested a continuance, and
the court granted this request. The disposition hearing was continued to be
combined with an already scheduled status review hearing on November 23,
2016, before Judge Menges. See N.T., 10/27/2016, at 2. A subsequent
continuance request was also granted, and the hearing rescheduled to January
12, 2017. Meanwhile, on December 12, 2016, CYF filed a Regulation 7 Form
Order for Expedited Placement Decision Pursuant to the ICPC for purposes of
initiating an Interstate Compact referral for Father in Virginia.
Testimony before Judge Menges began on January 12, 2017, but was
not completed on that date and the hearing was continued for additional
testimony. On January 17, 2017, CYF filed a motion/praecipe to schedule
finding of abuse hearing, which was granted, and a hearing was scheduled for
March 3, 2017, to be combined with the continued hearing on the pending
motions.
On February 13, 2017, a permanency review hearing was held. The
caseworker reported that the ICPC for Mother had been denied “because she
was not cooperative,” and that on January 23, 2017, Father “would be formally
charged by the military on several accounts [sic] of abuse towards [E.C.] and
other individuals.” N.T., 2/13/2017, at 6. The Virginia ICPC referral for Father
was expected to be put on hold as a result of the military charges against him.
See id. at 13. Further evidentiary hearings occurred on March 3, 2017, and
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May 4, 2017. On May 4, 2017, Judge Menges placed his order and findings of
fact on the record.
Judge Menges adjudged E.C. to be not dependent and, inter alia,
vacated the November 16, 2015, dependency adjudication ab initio, directed
expungement of the dependency order and findings of dependency, and
ordered E.C. returned to Father immediately. The trial judge also vacated any
additional orders that grew out of the dependency adjudication that gave legal
or physical custody, or educational rights or any other rights to anyone other
than Father. In addition, the trial court denied CYF’s request for a finding of
abuse determination against Father. In Findings of Fact, the trial court found
“{E.C.} to be not credible in his allegations that were made on or about
September of 2015 relative to abuse by his father,” and “that no abuse took
place at all in the autumn of 2015 by father against {E.C.}” Order, 5/19/2017,
at 4, 6-7. The trial court’s order with findings of fact was entered on May 19,
2017. This timely appeal followed.10
At the outset, we state our standard of review:
The 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.
We review for abuse of discretion.
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10CYF filed a Rule 1925(b) statement with its notice of appeal, in compliance
with Pa.R.A.P. 1925(a)(2)(i).
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In addition, we have observed:
In dependency proceedings our scope of review is broad. .
. . Although bound by the facts, we are not bound by the
trial court's inferences, deductions, and conclusions
therefrom; we must exercise our independent judgment in
reviewing the court's determination, as opposed to its
findings of fact, and must order whatever right and justice
dictate.
In the Interest of J.M., 166 A.3d 408, 416 (Pa. Super. 2017) (citations
omitted). With regard to questions of law, our standard of review is de novo.
See id.
CYF first argues the trial court committed an error of law and abused its
discretion when it vacated ab initio11 the adjudication of dependency of E.C.,
directed that the dependency order and any findings of dependency be
expunged, and vacated all prior orders awarding custody or educational rights
to anyone other than Father, based upon its finding that E.C. was not credible
in his allegations of abuse by his father. See CYF’s Brief at 18.
CYF acknowledges the court’s purview to terminate an adjudication of
dependency, court supervision and/or jurisdiction, and services through a
county agency. See CYF’s Brief at 21, citing Pa.R.J.C.P. 1631 (“Termination
of Court Supervision”). However, CYF maintains the trial court’s decision “to
wipe the slate clean, is clearly erroneous.” CYF’s Brief, id. at 21. In this
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11“The term void ab initio means an action that is void from its inception.”
Commonwealth v. Dennis, 695 A.2d 409, 410 n.4 (Pa. 1997), citing Black’s
Law Dictionary 6 (6th ed. 1990).
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regard, CYF asserts, “This appears to be a question of first impression in the
Pennsylvania courts: whether or not the customarily contract-related doctrine
of ‘void ab initio’ to challenge procedural validity applies to court orders in the
child welfare context.” Id. at 21.
Our research reveals that the doctrine of void ab initio has been applied
in dependency cases. In In re Rose, 54 A.2d 297 (Pa. Super. 1947), this
Court held the trial court’s dependency adjudication was void ab initio because
the court had no jurisdiction of the subject matter of the alleged dependent
child where no dependency petition had ever been filed. The Rose Court
opined: “Until a petition was filed alleging that the child was neglected or
dependent, the court had no power to act.” Id. at 298. In addition, in Rose,
no hearing was conducted by the court prior to the adjudication, and no notice
was given to the persons having custody of the child. The Rose Court found
all subsequent orders to be void and concluded:
The proceedings … relating to the custody of Maria Rose,
alleged to be a dependent child, although initiated by the lower
court with no doubt the best intentions, were pursued in a manner
that cannot be sanctioned. The whole proceeding was nonjudicial,
void in form and substance, and is ordered to be stricken from the
record; costs to be paid by the county of Westmoreland.
Id. at 301. See also Dauphin Cty. Soc. Servs. v. R.J.L., 821 A.2d 632,
635 (Pa. Super. 2003) (affirming trial court’s order that voided orders entered
against parents for support of dependent children after Superior Court ruled
trial court had no jurisdiction to make sua sponte dependency finding).
Therefore, we turn to consider the facts of the present case.
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Here, pursuant to a dependency petition and having conducted a full
hearing, the trial court adjudicated E.C. dependent on November 16, 2015,
on the sole grounds that E.C. lacked proper parental care and control. These
grounds were agreed to by the parties present at the hearing. CYF had asked
that a finding of abuse be deferred and that the adjudication proceed,12 and
the trial court specified in the adjudication that CYF reserved its right to later
pursue a finding of abuse. Thereafter, no party appealed the dependency
order. Nearly one year later, when Father filed his October 27, 2016 motion
to terminate the dependency adjudication, he sought only to terminate the
dependency adjudication and to have custody of E.C. returned to him. Father
did not request the court to vacate the dependency adjudication or to expunge
the adjudication.13 A hearing on Father’s motion was held before Judge
Menges, the successor judge in this case, who granted Father’s motion and,
as well, denied CYF’s revived request for a finding of abuse.
Based on these facts, we conclude the portion of Judge Menges’ order
vacating E.C.’s dependency order ab initio cannot stand. In the present case,
unlike In re Rose, supra, the trial court clearly had jurisdiction to make the
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12 See N.T., 11/16/2015, at 2-3, 16-17.
13 The Pennsylvania Rules of Juvenile Court Procedure provide that, in
delinquency cases, a party may file a motion with the court or the court may,
sua sponte, commence expungement proceedings. See Pa.R.J.C.P. 170. The
Rules contain no similar provision for expungement in dependency cases.
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dependency adjudication based upon the dependency petition filed by CYF.
Furthermore, the Pennsylvania Supreme Court has instructed that judges of
coordinate jurisdiction sitting in the same case should not overrule each
others’ decisions, except
in exceptional circumstances such as where there has been
an intervening change in the controlling law, a substantial change
in the facts or evidence giving rise to the dispute in the matter, or
where the prior holding was clearly erroneous and would create a
manifest injustice if followed.
Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995). Here, no
“exceptional circumstances” exist that justify departure from the coordinate
jurisdiction rule. In this regard, it bears emphasis that, while Judge Menges
found that E.C. was not credible regarding his claims of abuse by Father in the
autumn of 2015, the issue of child abuse was not the basis of the November
16, 2015 dependency adjudication. Therefore, on this record, we agree with
CYF that Judge Menges erred in ordering sua sponte that the dependency
adjudication of E.C. was “to be considered as though it was never made.”
Order, 5/19/2017, at 2.
Accordingly, we reverse the portion of the May 19, 2017 order vacating
ab initio the adjudication of dependency of E.C., directing the dependency
order and any findings of dependency be expunged, and vacating all prior
orders awarding custody or educational rights to anyone other than Father.
In the second issue, CYF contends the trial court committed an error of
law and abused its discretion in returning legal and physical custody of a
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dependent child, E.C., to his father, a resident of Virginia, in violation of the
ICPC, 62 P.S. § 761.14
By way of background, the ICPC “governs the transfer and continued
supervision of children who are moving between states for the purpose of
adoption, foster care, or institutional placement.” Pennsylvania Dependency
Benchbook, § 3.4.2 at p. 3-4 (Rev. 2014).
CYF relies on 55 Pa. Code § 3130.41(2)(i), which states, “Under the
provisions of the Interstate Compact on the Placement of Children, the county
shall [a]pply for and receive approval from the receiving state prior to sending
a child to a placement in another state.” See CYF Brief, at 30 (emphasis
added) CYF asserts “[t]he practice of the Commonwealth of Pennsylvania is
to apply ICPC to placement with non[-]custodial out-of-state biological
parents.” Id. at 30 (citation omitted). CYF contends the trial court “lost sight
of the best interests of [E.C.], particularly in light of the knowledge that there
were military charges actually pending against Father, and that he was
residing in Virginia and that a referral for ICPC approval had been made by
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14As noted in Footnote 1, after this appeal was filed, E.C. reached the age of
18. Therefore, CYF’s contention that the trial court violated the ICPC in
returning E.C. to Father, a resident of Virginia, appears to be moot since the
juvenile court’s jurisdiction normally ends when the child reaches 18 years of
age, unless the child requests the court to retain jurisdiction, and the court
determines the child remains under the jurisdiction of the court. See 42
Pa.C.S. § 6302, “Child”(1), (3). See also 42 Pa.C.S. § 6351(f)(8.1).
Accordingly, at this juncture, the trial court would not have jurisdiction of E.C.
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CYF but put on hold by the Virginia ICPC office due to those criminal charges.”
Id. at 30-31. We find, however, that the ICPC does not apply here.
Relevant to our review, Article III(a) of the ICPC provides: “No sending
agency shall send, bring or cause to be sent or brought into any other party
state, any child for placement in foster care or as a preliminary to a
possible adoption unless the sending agency shall comply with each and
every requirement set forth in this article.” 62 P.S. § 761 (emphasis added).
Article II(d) of the ICPC defines “placement” as
the arrangement for the care of a child in a family, free or boarding
home, or in a child caring agency or institution but does not
include any institution caring for the mentally ill, mentally
defective or epileptic or any institution primarily educational in
character, and any hospital or other medical facility.
Id. Furthermore, Article V(a) states, in part:
The sending agency shall retain jurisdiction over the child
sufficient to determine all matters in relation to the custody,
supervision, care, treatment and disposition of the child which it
would have if the child had remained in the sending agency’s state
until the child is adopted, reaches majority, becomes self-
supporting, or is discharged with the concurrence of appropriate
authority in the receiving state. … The sending agency shall
continue to have financial responsibility for support and
maintenance of the child during the period of the placement.
Id.
Here, the trial court concluded that “it’s in [E.C.’s] best interest for him
to [be] returned to the father,” and that “there has not been any evidence
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that there will be a safety concern for [E.C.] to return to his Father.”15
Therefore, the trial court terminated the dependency adjudication and ordered
legal and physical custody of E.C. returned to Father, a resident of Virginia,
immediately. Under these circumstances, we find trial court’s order did not
violate the ICPC since, when the trial court terminated the dependency
adjudication and returned E.C. to Father’s custody, the court ended its
jurisdiction and supervision of E.C. and, therefore, Father was not a
“placement” under the ICPC.
Accordingly, we reverse the portion of the May 19, 2017 order vacating
ab initio the adjudication of dependency of E.C., directing the dependency
order and any findings of dependency be expunged, and vacating all prior
orders awarding custody or educational rights to anyone other than Father.
Otherwise, we affirm.
Order affirmed in part, reversed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/08/2018
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15 Order, 5/19/2017, at 7.
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