In the Interest of: M.B., a Minor

J-S77003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.B., : IN THE SUPERIOR COURT OF
C.S.C.B., G.B., L.B., F.B., L.B. : PENNSYLVANIA
AND A.B., MINORS :
:
:
APPEAL OF: R.B., MOTHER :
:
:
: No. 791 MDA 2016

Appeal from the Dispositional Order entered on April 18, 2016
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000030-2016
CP-36-DP-0000031-2016
CP-36-DP-0000032-2016
CP-36-DP-0000033-2016
CP-36-DP-0000034-2016
CP-36-DP-0000035-2016
CP-36-DP-0000036-2016

BEFORE: PANELLA, J., OLSON, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J. FILED JANUARY 20, 2017

Appellant, R.B. (“Mother”), appeals from the orders1 of the trial court

entered on April 18, 2016, adjudicating her seven children M.B. (born in

March 2004); C.S.C.B. (born in June 2004)2; G.B. (born G.J., in May 1998);

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1
The appeals statement of the caption references the singular,
“Dispositional Order.” Due to internal Court software issues, the statement
cannot state “Orders.”
2
Mother and her husband, B.B. (“Father”) adopted C.S.C.B. while they were
residing as a married couple in Taiwan. See N.T., 4/14/16, at 102. G.B. is
(Footnote Continued Next Page)
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L.B.1 (born in May 2007); F.B. (born in August 2005); L.B.2 (born in

November 2008); and A.B. (born March 2011) (collectively, the “Children”)

dependent pursuant to 42 Pa.C.S.A. § 6302, and ordering that legal and

physical custody of the Children remain with the Lancaster County Children

and Youth Social Services Agency (“CYS” or the “Agency”), and the Children

remain in their placements in kinship care.3 We affirm.

The trial court summarized the relevant factual and procedural history

of this matter as follows.

Mother and Father are the parents of the seven children at
issue. They separated prior to the involvement of the Agency
with the family. Mother has been the primary caretaker for the
children during the past few years. During this time, the Agency
received multiple reports expressing concern for the children's
well-being. On June 26, 2015, the Agency received a report that
Mother was making paranoid statements about her skin being
filled with shards of glass. Though a doctor found nothing
physically wrong with her, it was noted that she had several
puncture marks on her skin from picking out imaginary shards.
Mother refused to accept services from the Agency.

_______________________
(Footnote Continued)

Mother’s son from a marriage prior to her marriage to Father. See id., at
102. Mother and Father were legally married at the time of the April 14,
2016 hearing in this matter, but were awaiting a divorce decree. See id., at
94. At the close of the April 14 hearing, the trial court ordered the
references in the petition and family service plan for G.J. be amended to
change his name to G.B., reflecting Father as his father. See id., at 115.
The supplemental certified record in this matter contains an order, entered
on June 17, 2016, for termination of court supervision for G.B., as he has
reached the age of eighteen.
3
Father did not challenge the order by filing a separate appeal. Father filed
a brief in the instant appeal on August 25, 2016.

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On August 15, 2015, it was reported that Mother had
gotten upset, grabbed a handful of her daughter [L.B.2’s] hair,
and cut it off. It was also reported that Mother was periodically
withholding food as a way to discipline the children. When the
Agency investigated, Mother stated that some things in the
report had been taken out of context, that she had been
prescribed medication, was having a hard day, and that the child
cut her own hair. On November 5, 2015, the Agency received a
report that the home where Mother was staying with the children
was unkempt, and that the children had complained about a lack
of food. At that time[,] the Agency did not investigate beyond a
home visit because the home appeared appropriate and there
was food in the cabinets.

On January 13, 2016, the Agency received the report
which directly led to the placement of the children. It was
reported that Mother and the children had been living in various
hotels since December 8, 2015. [G.B.], the oldest child, was
placed with his maternal grandparents, and the six younger
children were placed with their paternal grandparents.

Trial Court Opinion, 6/14/16, at 2-3.

The trial court explained the procedural background of this appeal as

follows.

This matter came before the [c]ourt on January 28, 2016,
when the Lancaster County Children and Youth Social Service
Agency (Agency) presented a Petition for Temporary Custody of
[M.B.], [S.C.C.B.], [G.B.], [L.B.1], [F.B.], [L.B.2], and [A.B.]. A
shelter care hearing was held on January 29, 2016, before a
Master. [R.B.] (Mother) and [B.B.] (Father) waived the hearing
without admitting any of the allegations in the Agency’s Petition
for Dependency. The Master recommended that the Agency be
given temporary legal and physical custody of the children. This
recommendation was adopted by Order of the [c]ourt on January
29, 2016.

An Adjudication and Disposition Hearing scheduled for
February 25, 2016, was continued to March 3, 2016, due to the
unavailability of the assigned judge. On March 3, 2016, the
Adjudication and Disposition Hearing was continued at the
request of the Mother to give her additional time to retain an

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attorney. On that date, Mother was advised of the date of the
next hearing and the availability of court[-]appointed counsel if
she was unable to afford private counsel.

Id., at 1-2.

The trial court held the adjudication and disposition hearing on April

14, 2016. Mother appeared without counsel, and, again, sought a

continuance, stating that she had retained counsel on the evening prior to

the hearing. The trial court refused to continue the hearing without proof

that she had retained counsel, Mother provided none, and the hearing

proceeded. See N.T., 4/14/16, at 4-10.

At the hearing, CYS first presented the testimony of Lorraine

Gutierrez, the CYS “normal family support” caseworker assigned to the

family. Id., at 11. As the questioning of Ms. Gutierrez by counsel for CYS,

Attorney David Natan, neared completion, Father’s counsel requested, and

obtained, leave of court for his paralegal to use the restroom, as the

paralegal felt ill. See id., at 59. Mother also requested leave to use the

bathroom, stating that she was “having a similar problem.” Id. When the

court asked Mother if she could await the completion of direct examination

of Ms. Gutierrez in approximately three minutes, Mother indicated that she

could wait. See id. At the close of the direct examination, the trial court

took a brief recess. See id., at 63. Mother departed the courtroom and took

all of her belongings from her table. See id.

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Both Father’s counsel, Attorney Patrick Diebler, and the guardian ad

litem, Cynthia Garman, cross-examined Ms. Gutierrez. On re-direct

examination approximately one half-hour after the recess, Ms. Gutierrez

testified that she had seen Mother in the bathroom during the recess, and

that there was suspicion that Mother was “shooting up” illegal drugs. Id., at

76. Father then testified on his own behalf. See id., at 80. Mother never

returned to the courtroom. See id., at 114.

At the close of the hearing, the trial court adjudicated the Children

dependent pursuant to 42 Pa.C.S.A. § 6302, and ordered that legal and

physical custody of the Children would remain with CYS, and the Children

would remain in their placements in kinship care. See id., at 112-114. G.B.

was placed with his maternal grandparents, and the younger children with

their paternal grandparents. See id. On April 18, 2016, the trial court

entered its adjudication in seven separate dispositional orders.

On May 17, 2016, Mother, through a court-appointed counsel, her

previous counsel, Attorney Gina Carnes, timely filed a single notice of

appeal4 from the April 18 orders, along with a concise statement of errors
____________________________________________

4
The filing of one notice of appeal from orders entered at different docket
numbers “has long been discouraged.” 20 G. Ronald Darlington, et al.,
Pennsylvania Appellate Practice § 341:3.102 (2013-2014 ed.) (footnote
omitted). This policy is set forth in the Note to Rule 341, which states that
“[w]here, however, one or more orders resolve issues arising on more than
one docket or relating to more than one judgment, separate notices of
appeal must be filed.” Pa.R.A.P., 341 Note.
(Footnote Continued Next Page)

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complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On

June 3, 2016, Mother’s counsel filed with this Court a motion for leave to file

an amended concise statement. This Court granted the motion, and

remanded the matter, retaining jurisdiction.

_______________________
(Footnote Continued)

Courts, however, have not automatically quashed such appeals. For
instance, our Supreme Court considered this question in General Electric
Credit Corp. v. Aetna Casualty & Surety Co., 263 A.2d 448 (Pa. 1970),
where the appellant filed a single appeal from two separate judgments
entered against it. Upon considering these facts, our Supreme Court stated:

Taking one appeal from several judgments is not acceptable
practice and is discouraged. It has been held that a single appeal
is incapable of bringing on for review more than one final order,
judgment or decree. When circumstances have permitted,
however, we have refrained from quashing the whole appeal, but
this Court has quashed such appeals where no meaningful choice
could be made.

Id., at 452-453 (internal citations and footnotes omitted).

Similarly, this Court, citing General Electric Credit Corp., declined to
quash where counsel for appellants filed only one notice of appeal from
separate orders denying each appellant’s motion to intervene. See
Egenrieder v. Ohio Casualty Group, 581 A.2d 937, 940 n.3 (Pa. Super.
1990). The panel noted that counsel should have filed a separate notice of
appeal for each appellant and that the appeals would then have been subject
to consolidation. See id. But see Commonwealth v. C.M.K., 932 A.2d 111
(Pa. Super. 2007) (court quashing single notice of appeal by criminal co-
defendants who were tried jointly but sentenced individually).

Thus, the filing of one notice of appeal is “discouraged,” but both our
Supreme Court and this Court have refrained from quashing an appeal
where “circumstances have permitted.” Our examination of the procedural
posture of this case leads us to the conclusion that the circumstances here
permit us to exercise discretion and permit these appeals.

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Our order directed Mother to file an amended concise statement within

twenty-one days, and the trial court to file a supplemental opinion within

forty days, from the date of our order. Mother filed an amended concise

statement in the trial court, which we received in a supplemental record, as

well as the trial court’s supplemental opinion.

On appeal, Mother raises the following issues.

A. Whether the Court erred when it proceeded with the
Adjudication and Disposition hearing even when Mother had no
legal counsel present, when Mother indicated that she had
counsel who could not be present, and when Mother indicated
that she did desire to be represented by an attorney at the
proceeding[?]

B. Whether the Court erred in continuing with the hearing
without Mother being present; when following a court recess
[M]other did not return and had previously complained about
feeling ill[?]

C. Whether there was sufficient evidence to support of finding of
dependency[?]

Mother’s Brief, at 7.5

We will review Mother’s issues together, as they are interrelated. The

Pennsylvania Supreme Court recently set forth our standard of review in a

dependency case as follows.

“The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
____________________________________________

5
While Mother stated her issues somewhat differently in her concise
statement, we, nevertheless, find them preserved for review. Cf. Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006).

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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.” In re R.J.T., 608
Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for abuse
of discretion[.]
In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

Section 6302 of the Juvenile Act defines a “dependent child” as:

[a] child who:

(1) 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. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk[.]

This Court clarified the definition of “dependent child,” as

whether a child is lacking proper parental care or control so as to
be a dependent child encompasses two discrete questions:
whether the child presently is without proper parental care and
control, and if so, whether such care and control are immediately
available.

In re G., T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal quotations and

citations omitted). See also In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010).

“The burden of proof in a dependency proceeding is on the petitioner to

demonstrate by clear and convincing evidence that a child meets that

statutory definition of dependency.” In re G., T., 845 A.2d at 872 (citation

omitted).

This Court has explained that

a court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the court

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finds that the child is dependent, then the court may make an
appropriate disposition of the child to protect the child's physical,
mental and moral welfare, including allowing the child to remain
with the parents subject to supervision, transferring temporary
legal custody to a relative or public agency, or transferring
custody to the juvenile court of another state. 42 Pa.C.S. §
6351(a).

In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002) (en banc).

Regarding the disposition of a dependent child, subsections (e), (f),

(f.1), and (g) of § 6351 of the Juvenile Act provide the trial court with the

criteria for its permanency plan for the subject child. Subsection (f.2) of the

same statute provides that evidence of the conduct of the parent that places

the child at risk shall be presented to the court at any permanency hearing.

Pursuant to those subsections of the Juvenile Act, the trial court is to

determine the disposition that is best suited to the safety, protection and

physical, mental and moral welfare of the child.

Mother relies on § 6337 of the Juvenile Act as setting forth her right to

counsel at all stages of a Juvenile Act proceeding. She asserts that she

indicated to the court that she had retained private counsel who was not

available on the day of the hearing, and that she did not understand what

was happening at the proceeding. She argues that the trial court should

have continued the matter because of the unavailability of her counsel.

Mother also contends that, when she did not return to court after the mid-

morning break, the trial court should have continued the matter. She claims

that the trial court’s action of moving forward with the hearing allowed its

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finding of dependency to rest on insufficient evidence. Mother argues that it

was fundamentally unfair to force her to represent herself, and, in so doing,

the trial court denied her constitutional guarantee to due process of law.

Mother further complains that the caseworker’s testimony that Mother was in

the restroom for a very long time, and that she suspected that Mother was

“shooting up” illegal drugs could also indicate illness on the part of Mother.

Mother states that there is nothing in the record concerning her illness, but

that she had indicated, before she left the room, that she felt ill.

“Due process requires nothing more than adequate notice, an

opportunity to be heard, and the chance to defend oneself in an impartial

tribunal having jurisdiction over the matter.” In re J.N.F., 887 A.2d 775,

781 (Pa. Super. 2005) (citation omitted). “Due process is flexible and calls

for such procedural protections as the situation demands.” In re Adoption

of Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996) (quoting Sullivan v.

Shaw, 650 A.2d 882, 884 (Pa. Super. 1994)).

Section 6337 of the Juvenile Act provides that a party in a juvenile

matter is entitled to representation by legal counsel at all stages of any

proceeding. Section 6338 of the Juvenile Act provides that a party is entitled

to the opportunity to introduce evidence and otherwise be heard on his own

behalf and to cross-examine witnesses. Further, regarding permanency

hearings under the Juvenile Act, Rule 1608(C)(1) of the Pennsylvania Rules

of Juvenile Court Procedure provides that any evidence helpful in

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determining the appropriate course of action, including evidence that was

not admissible at the adjudicatory hearing, shall be presented to the court.

At the commencement of the hearing, the following exchange

occurred among counsel for CYS, Attorney David Natan, Father’s counsel,

Attorney Patrick Diebler, the guardian ad litem, Cynthia Garman, and the

trial court:

Mr. NATAN:

***

The mother of the children [R.B.] is present. She was
represented by Attorney Gina Carnes. Attorney Carnes withdrew
her representation at the last proceeding. As [Mother] has not
requalified for appointed counsel, that matter was continued.
[Mother] is present. I understand from my caseworker that
[Mother] has retained private counsel, although whom that is, I
do not know[,] and that she has indicated that her counsel is not
available this morning to be present.

The father of the children is [B.B.]. He is present and
represented by Attorney Patrick Diebler. The Guardian ad litem
for the children[,] Cynthia Garman[,] is also present.

There have been three court[-]appointed special advocates
appointed on behalf of the children. Mary Beth Filling was
appointed to represent the interest of [M.B.]. Sandy Radom was
appointed to represent the interest of [G.J.], actually [G.B.].
And Teresa Barker was appointed to represent the interests of
[L.B.], [L.B.], and [A.B.]. And then Ms. Filling also has been
appointed for purposes of representing [S.C.C.B.] and [F.B.].
That covers all the children.

I did receive an e-mail indicating that because of their
recent appointment, although they have started the process of
becoming involved in the case, they have not been able to yet
have enough information to offer reports to the Court regarding
their opinions. They are all present this morning.

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I will indicate for the Court that the Agency is ready to
proceed today. I believe [F]ather is ready to proceed today and I
did not speak with [Mother] prior to the proceedings, so I’m not
necessarily clear on a number of things. Certainly, I don’t know
whom this counsel is and I have not been contacted by anybody
indicating they are representing her requesting a continuance.

THE COURT: [Mother], where is your lawyer?

[MOTHER]: My lawyer is in Delaware County in a hearing
of Raheem versus Clayborn[,] and the Judge presiding over that
is Dominic Pileggi[,] and I have the courthouse number if you
would like to verify this. She was unable to reschedule it.

THE COURT: When did you retain this lawyer?

[MOTHER]: She verified the retention last night.

THE COURT: Last night –

[MOTHER]: She has been unable to get back to me
because of her tight schedule in court this week and last week.

THE COURT: So you told your attorney last night that you
had this hearing this morning, correct?

[MOTHER]: Yes, I did.

THE COURT: When did you get notice of this hearing?

[MOTHER]: The last time I was in court and I’ve been
searching.

THE COURT: When did we give her notice of the hearing,
Mr. Natan, do you know when that was?

MR. NATAN: Notice of the hearing was provided to
[MOTHER] on – orally on March 3, 2016. She’s had visitations at
other times and I believe she was hand-delivered a copy of the
notice also.

MS. GARMAN: It was announced in court on March 3rd as
well and part of the continuance order.

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THE COURT: I remember telling her the last time she was
in court that we were going to have this hearing today. Is that
your recollection, Ms. Garman?

MS. GARMAN: It certainly is.

MR. NATAN: Your Honor, we’ve assigned or we have taken
an entire day out of the court schedule with only emergency
petitions that needed to be addressed in order to try and get this
matter resolved.

THE COURT: And the name of your attorney, [Mother]?

[MOTHER]: Debra Roffman.

THE COURT: Debra Roffman.

[MOTHER] Roffman, R-o-f-f, sir.

THE COURT: R-o-f-f-m-a-n?

[MOTHER]: Yes, sir.

THE COURT: Mr. Ruth, will you go back to my chambers
and see if Ms. Roffman has advised me that she has been
retained by [Mother], because if I do not have anything saying
that she’s been retained and she’s requesting a continuance,
we’re going to proceed with this hearing.

[MOTHER]: Sir, she advised me to verbally beg Your
Honor’s understanding.

THE COURT: Do you have anything in writing from her
confirming this?

[MOTHER]: No, she has not been able to do that.

THE COURT: Why did it take you a month and a half to get
a lawyer?

[MOTHER]: Your Honor, to find a lawyer for this kind of a
hearing in Lancaster County, I had to reach outside of Lancaster
County because the information I was getting from lawyers
locally was not completely accurate. I have been unable to get

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full information for disclosure from the Agency because of my
lack of an attorney.

THE COURT: You understand the importance of this
hearing?

[MOTHER]: I have –

THE COURT: Do you understand the importance of this
hearing?

[MOTHER]: I –

THE COURT: That’s a yes or a no.

[MOTHER]: Yes, sir.

THE COURT: You understand that this is an adjudication
dependency hearing with regard to your seven children and this
was scheduled over a month and a half ago. Has she contacted
my office?

THE BAILIFF: There’s been no contact.

THE COURT: We are going to proceed with the hearing.

[MOTHER] I have been through many consultations, Your
Honor, with several different lawyers looking for a lawyer who is
going to be completely prepared and knew what they were doing
and was going to give me the benefit of working towards my
children’s best interest. Everybody in this county has children,
grandchildren. Most lawyers would not even consider it. I’ve
been though many consultations. I have paid the Pennsylvania
Bar for references and paid for consultations after that. I have
gone through many interviews to find a good lawyer that can
explain the situation to Your Honor fully.

THE COURT: I’m sure she can explain it to you after we
have this hearing because we are going ahead with the hearing
today. You have had enough time to have an attorney. This is
not a game.

[MOTHER]: She was unable to get back to me –

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THE COURT: This is not a game, [Mother]. We are going
ahead with the hearing. Call your first witness, Mr. Natan. I find
you had over –

[MOTHER]: Sir –

THE COURT: I’m talking now so you sit down. You had
over a month and a half to get an attorney.

[MOTHER]: I have –-

THE COURT: We have scheduled this for a whole day, at
least a whole morning of testimony, and I’m sure we’re going to
go into the afternoon probably.

[MOTHER]: I have information –

THE COURT: We have a whole gallery of people here who
are here for this hearing. I’m somewhat familiar with you having
at least two matters that have come before me at least with
business court and another hearing where you did not even
show up.

[MOTHER]: Because –

THE COURT: We are going to go ahead with the hearing.
Call your first witness.

[MOTHER] Every conference, sir, no one listens.

THE COURT: When I talk, you stop talking. Do you
understand that?

[MOTHER]: Please.

THE COURT: When we go ahead with this hearing, if you
have any questions or don’t understand what is happening, then
you stop me. But at this point, we are going ahead with the
hearing. It’s an adjudication hearing. The standard is whether
there is clear and convincing evidence the child’s dependent. If
you have any questions during the matter[,] during the course of
the hearing, you can stop me. I’ll be happy to advise you.

N.T., 4/14/16, at 4-10.

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We find that the trial court appropriately adhered to the dictates of

sections 6337 and 6338 of the Juvenile Act and Rule 1608(1) of the

Pa.R.J.C.P. when the trial court proceeded with the hearing in the absence of

counsel for Mother. The trial court provided Mother with plenty of time to

find an attorney. And Mother had an opportunity to be heard. We find that

the trial court did not violate Mother’s constitutional guarantee to due

process when it proceeded with the hearing.

Next, we address Mother’s claim that the trial court deprived her of

due process when it proceeded with the hearing after she had departed the

courtroom, without returning. The record reflects that, as the direct

examination of Ms. Gutierrez was nearing completion, the following

exchange took place:

MR. DIEBLER: Your Honor, if I could interrupt, my
paralegal is requesting to leave the courtroom. He’s feeling ill
and needs to use the bathroom. Is that okay?

THE COURT: Sure.

[MOTHER]: Your Honor –

THE COURT: We should be wrapping up this direct
testimony within about a minute, shouldn’t we?

MR. NATAN: I’d say three, but yes. I believe [Mother] was
also –

THE COURT: Yes, [Mother]?

[MOTHER]: I’m having a similar problem.

THE COURT: Well, we’ll be done in about three minutes
here. I think you can hang on, can’t you?

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[MOTHER]: (Nods head up and down.)

THE COURT: Well, we’ll be done in about three minutes
here. I think you can hang on, can’t you?

[MOTHER]: (Nods head up and down.)

THE COURT: She’s acknowledged by the nod of her head
that she can make it through at least a couple more minutes of
direct examination.

BY MR. NATAN:

Q. You talked briefly about concerns of continued reports
that have been received by the Agency since the childrens’ [sic]
placements into care?

A. Yes.

Q. There was a report I believe you said
methamphetamine alleged against both mother and her
boyfriend?

A. Yes.

Q. Has that report been able to be investigated at this
time?

We’ve briefly. I mean we’ve been trying to ascertain
through the drug screens. Since we don’t know where they live.
We can’t ascertain that from where they are residing, and so far
her drug screens have been negative.

Q. And you’ve not had any contact with [Mother’s
paramour, J.N.,] because he is not a biological parent to any of
these children?

A. Correct.

Q. I understood he was coming to some of the visits at the
periods of time, was not being allowed into the visitation area,
was staying outside of the agency on public property?

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A. Correct.

Q. Have there been any incidents in which he needed to be
removed from the agency property by the sheriff’s department?

A. Yes, at the beginning there was an incident where he
was knocking on the window while [Mother] was visiting with the
kids, with the children, and the sheriff had to, you know, ask him
to stop and if not then he would be removed.

Q. In the event [Mother] desires to remain in a relationship
with [J.N.] and/or reside with [J.N.], the Agency would need to
do a full assessment of him?

A. Yes.

Q. At this point, the Agency is aware of some at least
ancillary or preliminary concerns as it relates to him in a
caregiving role for the children?

A. Yes.

Q. It’s the Agency’s understanding that [J.N.] is the
father[,] I believe you indicated[,] of five other children and that
there are court proceedings ongoing in Cumberland County
regarding those children?

A. Yes.

Q. For which [J.N.] failed to appear at a hearing on April 7
and was held in contempt?

A. Yes.

Q. And there is another proceeding now currently
scheduled for April 22nd of this year at which he needs to appear
for sentencing for his failure to comply with the prior court
order?

A. That’s correct.

Q. In addition, I understand a report has been received by
the Agency within the last week regarding some concerns for
[J.N.’s] care of his own children?

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A. Yes.

Q. And is that currently being screened in [sic] for
investigation by the Agency?

A. Yes.

Q. Is it your understanding that the nature of the report
involves a physical altercation or potential physical altercation
between one of the children, [J.N.], and [Mother]?

A. Correct.

Q. But at this point[,] as I understand it, the report just
came in and has not yet been able to be assessed?

A. Correct.

Q. What information, at least as the report indicates, does
the Agency now have regarding where [Mother] is residing in the
home?

A. It is my understanding the report states that they were
residing at [J.N.’s] I guess mother’s house[,] which would be the
paternal grandparents’ house for [J.N.’s] children.

Q. And there were concerns for ongoing drug use by some
of the household members as part of that report?

A. Yes.

Q. Some concerns for domestic violence also?

A. Yes.

Q. But the report has come in as a general protective
services again not as abusive report at this time?

A. Correct.

MR. NATAN: Thank you.

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THE COURT: All right. We’ll take a recess for at least five
minutes and then we’ll start again.

(A recess was taken.)

THE COURT: We took a break approximately 15
minutes ago to start within another approximately 5
minutes. We’ve now waited approximately 10 minutes for
[Mother] to rejoin us and she’s given no excuse as to why
she is not here at this point[,] at least to me, and she has
even taken everything off of her table and did not leave
anything in here when we took the break approximately
15 minutes ago. Mr. Diebler, do you have any questions?

MR. DIEBLER: Your Honor, I have no questions.

THE COURT: Ms. Garman, do you have any questions for
the case worker?

MR. DIEBLER: Your Honor, I apologize, was that do I have
any questions for the caseworker?

THE COURT: Yes.

MR. DIEBLER: Yes, I do have questions for the caseworker.
I apologize.

Id., at 59-63 (emphasis added).

Subsequently, Attorney Diebler and Attorney Garman conducted cross-

examination of Ms. Gutierrez, respectively. On re-direct examination of Ms.

Gutierrez by Attorney Natan, the following exchange took place:

BY MR. NATAN:

Q. During the recess that just occurred, were there any
concerns for [Mother’s] behavior?

A. Yes, she went into the bathroom. She was in there for
a long period of time. There were – I’m not sure what she was
doing in the bathroom. I mean there was the suspicion that she

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might have been shooting up [an illegal drug], but I’m not
positive[,] and then she left.

Q. So she’s not returned to the court. It’s now 11:15 and
about 25, 30 minutes since we last broke and you haven’t seen
her?

A. No.

Q. You were in the bathroom at the same time she was?

A. Yes.

Q. In addition to all of the testimony you previously gave
with regards to [Mother], it’s my understanding that -- you then
testified that her -- the gentleman with who she’s believed to be
in a relationship and living with, he has recent marijuana
charges; is that correct?

A. Correct.

Q. And those charges were lodged on March 31st of this
year?

A. I believe so.

Q. In addition, the most recent report was made which I
had asked about prior to the break against [J.N.] indicated
marijuana use in that home as well as crystal methamphetamine
in that home?

A. That’s my understanding, yes.

Q. It’s believed that [Mother] is also residing in that home
with [J.N.] at this time?

A. Correct.

Q. Even though the Agency is at this point [sic] has not
had a positive drug screen during one of the scheduled visits,
there’s not been the ability to do any random drug screen since
[Mother] has consistently refused to give an address where she
is residing?

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A. Correct.

Q. Does the Agency believe that it would be appropriate to
add a drug and alcohol goal for [Mother] based on the behaviors
not just that occurred in the courthouse today but over the last
week and a half?

A. Yes.

MR. NATAN: Thank you.

THE COURT: You may step down. Thank you. Do you have
any further questions?

MR. DIEBLER: No, Your Honor.

THE COURT: Your next witness, Mr. Natan?

MR. NATAN: She left, Your Honor. I was going to call the
mother on cross. So I will at this point, unless she returns, rest.

THE COURT: Well, this is the fifth time that I’ve had
something scheduled with [Mother] in the last three months.
The first time was a business court matter filed by the father and
she failed to appear. The second time was a petition for custody
contempt filed by the father in which we had a hearing and she
failed to appear. The third time was a risk of harm hearing
follow-up for the father and she failed to appear.

The last time that she was with the Court it was for a
continuance[,] on March 3, 2016[,] of the adjudication and
disposition hearing, partly at the request of her[,] so that she
could get an attorney.

She has now failed to come back from her break. My
bailiff staff has looked for her, does not know where she
is now. So I take it the Agency is resting their case now and
moving for the admission of the exhibits into evidence?

MR. NATAN: We are, Your Honor. I would ask the Court to
require or to approve that the Agency, A, correct [G.B.’s] plan[,]
with regards to his last name[,] and add [Father’s] last name,
make the corrections to domestic violence goals on all of the
plans as they relate to [Mother], as well as for the addition of

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the drug and alcohol goal for [Mother]. And if those are
approved, I will submit revised plans to the Court for final
approval.

THE COURT: Any objection, Mr. Diebler?

MR. DIEBLER: No objection, Your Honor.

THE COURT: Ms. Garman, do you have any objection to
that?

MS. GARMAN: Certainly not.

THE COURT: I take it you are in agreement with the
changes to the plan?

MS. GARMAN: Yes.

Id., at 76-79 (emphasis in original omitted; emphasis added).

At the close of the hearing, the trial court stated as follows:

THE COURT: The [c]ourt did meet and listen to the paternal
grandmother at a prior contempt hearing. I find there’s been
clear and convincing evidence that’s been presented to the Court
by the Agency that all children, all seven of them[,] are
dependent. It’s obvious to me that the children were without
proper care and control while they were with[,] at least with[,]
the mother for a number of reasons belonging to education,
emotional health, medical health, income, housing and now
suspected or maybe continuing to be suspected are drug use
with meth and/or marijuana.

The findings of fact are included with what I’ve just said as
well as in the dependency petition Paragraphs A through K which
have been proved by clear and convincing evidence of the
children to all be removed from the custody[,] from the mother.

At this point, the Agency’s obviously made more than
reasonable efforts to comply with family finding requirements,
and[,] unfortunately, the oldest child[, G.B.,] is with the – will
stay with the maternal grandparents and the younger six
children will stay with the paternal grandparents at this point.
Legal and physical custody will remain with the Children & Youth

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Agency. The educational surrogate will continue to be Ms.
Garman.

The Agency’s authorized to consent for routine medical
treatment, as well as I will await the Agency presenting me with
an order to have the three younger children immunized. I
certainly believe that’s warranted in this situation.

Visitation for the mother will continue for one hour per
week, provided she takes the drug screen and passes it before
the visitation commences. Visitation with the father can, [sic] in
which it is currently one hour a week, can be increased in
consultation with the Agency as to what can be improved upon
and appropriate. I don’t have a problem with the children having
more time than a one[-]hour group session with all six of them
together. I believe it’s appropriate to have more time with the
children broken up in terms of their situation with the father.

The children will remain with the grandparents as a [sic]
I’ve previously indicated where they are now. That’s the least
restrictive placement which meets the needs of the children.
That’s the least restrictive alternative available. The children are
safe in the current setting. Obviously, reasonable efforts were
made to place the siblings together. Only one out of seven who
is not with the rest of them at this point, but at least they have
visitation with each other.

The next hearing in this matter, the review hearing[,] is
scheduled for June 1, 2016 in the morning, so we’ll make that
8:30 in the morning so everyone can appear.

I’ll note it’s now afternoon time and [Mother] has
not returned to the courtroom. I think that more than shows
evidence to the [c]ourt of her unwillingness to comply with the
[c]ourt in a normal decorum of someone who comes to [c]ourt
as well as taking any type of interest with the welfare of her
children. Anything more, Mr. Natan?

MR. NATAN: No, Your Honor.

MS. GARMAN: If I may, Your Honor, would the order
include that the mother’s visits continue to be supervised and
that the father’s visits need not be, because if the order does not
say that the visits have to be supervised, the Agency has the

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problem with [M]other insisting they don’t have to be[,] and if
you don’t stipulate that the father’s visits don’t have to be
supervised, then she’s going to kick up a fuss about why aren’t
his visits supervised. So I think Your Honor can avoid a problem
by drafting your orders accordingly.

THE COURT: Well, the mother’s visits should be supervised
with the Agency, there’s no doubt about that. I don’t have an
objection to the father having unsupervised visitation as long as
it’s worked out and is appropriate with the Agency. The plans
that were presented in totality[,] Exhibit 1 which were admitted
during the hearing[,] are appropriate and feasible.

The plans are approved with the addition of the drug and
alcohol goal for [M]other, that the domestic violence goal for the
mother was changed from being a perpetrator to a victim, that
the plan will correct [G.B.’s] last name to reflect that it’s [B.],
and that the references may be in the petition to the correct
name of the father are all amended at the appropriate – that
have to be amended to [B.B.]. I believe that covers everything.
Thank you.

Id., at 112-115 (emphasis added).

We find that the trial court appropriately adhered to the dictates of

sections 6337 and 6338 of the Juvenile Act and Rule 1608(1) of the

Pa.R.J.C.P. when the trial court proceeded with the hearing and continued to

hear testimony and admit documentary evidence in the absence of Mother.

Mother disappeared during the morning recess and did not return. When she

left she offered little explanation other than indicating that she was having

“similar issues” to the illness expressed by the paralegal for Father’s

counsel. The trial court did not violate Mother’s constitutional guarantee to

due process when it proceeded with the hearing, as Mother had an

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opportunity to be heard. It appears from a review of the record that Mother

voluntarily absented herself from the proceeding.

Finally, we find that Mother waived her third issue, challenging the

sufficiency of the evidence to support an adjudication of dependency, for her

failure to support and discuss her challenge to the sufficiency of the evidence

with any citation to appropriate statutes and cases.6 See, e.g., Chapman-

Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006).

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2017

____________________________________________

6
We could also construe Mother’s failure to support and discuss her first two
issues as a waiver of those issues on appeal. We decline to find waiver as to
her first two issues, which we have addressed in order to explain that the
trial court did not deprive Mother of due process.

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