J-S22043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: YORK COUNTY CHILDREN
AND YOUTH
No. 1922 MDA 2016
Appeal from the Order Entered October 25, 2016
in the Court of Common Pleas of York County
Juvenile Division at No.: CP-67-DP-0000220-2016
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 06, 2017
York County Office of Children, Youth, and Families (“CYF”, “YCOCYF”,
or the “Agency”), appeals from the status review order entered on October
25, 2016, directing CYF, as a sanction for civil contempt of the trial court’s
August 16, 2016, order, to reimburse N.T.-C., (“Paternal Grandmother”), the
paternal grandmother of the subject child, K.G., (“Child”) (a female born in
2001), in the amount of $540 for the costs of an abortion Child underwent.
We vacate the order, insofar as it finds CYF in contempt, and imposes the
$540 sanction on CYF.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22043-17
On July 26, 2016, CYF filed a motion for emergency protective custody
with regard to Child after an alleged altercation between Child and her
mother, A.G.-S., (Mother), along a roadside. On July 27, 2016, the trial
court entered an order placing Child in the protective custody of CYF. A
master held a shelter care hearing on July 28, 2016. On August 3, 2016,
the trial court entered the master’s recommendation for shelter care and its
shelter care order, dated July 28, 2016.1
In the meantime, on August 2, 2016, CYF filed a petition to adjudicate
Child dependent. On August 16, 2016, the trial court held a hearing on the
dependency petition. CYF was represented by Attorney Kristina Bange.
Gilliam Woodward, the attorney appointed to serve as guardian ad litem
(“GAL”) for Child, was also present. Father and Mother were present in the
courtroom, as well. CYF presented the testimony of Seth Reed, a police
officer for Hellam Township who responded to the call about the roadside
disturbance between Mother and Child on July 25, 2016. N.T., 8/16/16, at
13-14. CYF then presented the testimony of Kalene Leh, the caseworker for
CYF assigned to Child’s case. Id. at 21-22. Attorney Woodward cross-
examined both witnesses.
At the close of the testimony, the trial court stated:
____________________________________________
1
On August 10, 2016, the trial court again entered the July 27, 2016 order
for emergency protective custody of Child.
-2-
J-S22043-17
THE COURT: I do make the finding that the child is dependent as
that term is defined by the [Juvenile Act, 42 Pa.C.S. § 6302].
Based on the allegations outlined in the petition, we find that the
evidence is credible, that there was some sort of altercation that
occurred, that [F]ather has indicated that he is not a resource
for his daughter.
She has some delinquency matters pending in Lancaster County,
and based on all the evidence presented, we do find that she is a
dependent child. We do find that it is appropriate to have her
placed with the paternal grandparents. They are interested in
serving as foster parents and will complete appropriate
paperwork in order to be approved.
Goals shall be set forth and established for both parents. The
primary goal will be reunification. We do make the concurrent
goal of adoption. It is hoped that she can achieve reunification
within a reasonable period of time, but the agency shall pursue
other permanent goals. In the event that permanent legal
custodianship is more appropriate, we can revisit that at the
next review period – review hearing.
We do direct that the family team meeting marked as
Exhibit 1 will be incorporated into the record and that the agency
assist the family in securing appropriate services for the child,
noting that she is going to be residing in Lancaster County.
We do authorize the GAL – the GAL to request and do
direct the agency to schedule an evaluation for the child
pursuant to 32 Pa.C.S.A. Section 31 – I’m sorry, 3201. [sic] [18
Pa.C.S.A. § 3201 (Abortion Control Act)].
A copy of this Order adjudicating the child dependent will
be provided to all parties in court today. We remind the parents
of their right to be represented by counsel.
This matter will be reviewed every 90 days. They are entitled to
counsel of their choosing. They are also entitled to file an appeal
of this [c]ourt’s decision within 30 days of today’s date.
Okay.
Once you receive a copy of the Order, you can step out.
-3-
J-S22043-17
ATTORNEY BANGE: Your Honor, I didn’t hand up the
Court-ordered services. I think it was referenced in the
proposed order.
THE COURT: Were there any changes to the Court-ordered
services and conditions?
We do incorporate the Court-ordered services and conditions
attached hereto and the provisions contained therein.
There is a change to the medical and educational rights. It’s
granted to the agency.
Attorney Bange, I’ve granted medical and educational
rights to the agency. We can revisit that at the next hearing.
N.T., 8/16/16, at 42-45 (emphasis added).
On August 16, 2016, the trial court entered an adjudication finding
Child dependent, and an order of disposition, which provided as follows:
AND NOW, this 16th day of August , 2016, after consideration of
the petition presented by the York County Children and Youth
Services Agency, it is ORDERED that the child is found, by clear
and convincing evidence, to be a Dependent Child pursuant to
the Pennsylvania Juvenile Act at 42 Pa.C.S. § 6302 ‘Dependent
Child’.
DEPENDENT CHILD PURSUANT TO
(1) The child is without proper care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals.
FINDINGS OF FACT
Findings of fact are as follows: The minor child, [K.G.,] is fifteen
years of age, and had been residing with her mother, [A.G.-S].
On July 25, 2015, York County Office of Children, Youth &
Families was advised of a domestic dispute between the mother
and the minor child in a motor vehicle. Allegations received
were that the mother pulled the car off to the side of the road
and physically assaulted the child. The mother allegedly left the
-4-
J-S22043-17
child along the roadside on the Route 30 Bridge between
Lancaster County and York County. York County Office of
Children, Youth & Families attempted to implement a safety plan
with the family, however, the situation escalated into a verbal
altercation which resulted in the York City Police Department
being dispatched to the home. The minor child was residing with
the paternal grandmother, [N.T.-C.], in Lancaster County,
Pennsylvania, throughout the school year and was spending the
summer months with her mother and maternal grandmother.
The minor child is currently on probation in Lancaster County,
Pennsylvania, on a charge of Hindering Apprehension[,] which
she received in May, 2014. On May 11, 2016, the minor child
received three new charges through Lancaster County Juvenile
Probation, two counts of Disorder [sic] [Co]nduct, and one count
of Simple Assault. The child was placed on house arrest and an
ankle monitor. The child cut off the ankle monitor and since that
time has been residing with her mother in York County,
Pennsylvania. The mother was recently released from Muncy
State Correctional Institution. Father [T.S.] resides in
Mooresville, North Carolina. The paternal grandparents, [N.T.-
C.] and [R.C.], have come forward as a placement resource for
the child. The paternal grandparents have been approved as
emergency caregivers for the child.
CHILD REMOVED FROM HOME
The Court finds that based upon the findings of abuse, neglect
and/or dependency of the minor child, it is in the best interest of
the child to be removed from the home of [A.G.-S.] and [S.T.]
Relationship: Mother and Father.
REASONABLE EFFORTS
Further, the [c]ourt hereby finds that to allow this child to
remain in the home would be contrary to the child’s welfare, and
that [p]reventive services were not offered due to the necessity
for emergency placement. The lack of services was reasonable
under the circumstances. This level of effort was reasonable due
to the emergency nature of the situation, safety considerations,
and circumstances of the family.
CUSTODY/PLACEMENT
-5-
J-S22043-17
PLACEMENT – The Child is to be placed, by the agency, in
emergency caregiver placement with the paternal grandparents,
[N.T.-C.] and [R.C.], pending approval for participation in the
Kinship Program. The Child’s placement is the least restrictive
placement that meets the need of the Child and there is no less
restrictive alternative available, in that due to the father residing
out-of-state, issues of domestic violence between mother and
child, and the paternal grandparent willing to be a resource for
the child, placement with the paternal grandparents as
emergency caregivers is the least restrictive alternative
available.
CONDITIONS – The dependent child is subject to the following
conditions – see Court-Ordered Services/Conditions Appendix
incorporated herein by reference.
CURRENT PLACEMENT – Child’s Safety
The child is safe in the current placement setting.
CURRENT PERMANENT PLACEMENT PLAN
The current placement goal for the child is return to parent or
guardian. The projected date by which the goal for the child
might be achieved is: within six to twelve months.
The following [s]ervices are necessary to achieve the
permanency plan – see Court-Ordered Services/Conditions
Appendix incorporated herein by reference.
EDUCATION/HEALTH/EVALUATIONS
The following is necessary to ensure the stability and
appropriateness of the Child’s education: the minor child shall
attend Phoenix Academy, Lancaster County, Pennsylvania, for
the upcoming 2016-2017 school year.
PROGRAMS/INITIATIVES
The court recognizes the following initiatives or programs have
been or will be used:
Family Finding
Family Group Decision Making with individual and family.
-6-
J-S22043-17
FAMILY FINDING
The court orders the Agency to engage and continue in family
finding until further order of court.
MEDICAL CONSENT
It is further ORDERED that if the child is in the legal custody of
the county agency as defined by the Juvenile Act at 42 Pa.C.S.
§§ 6301-6355, the County Children and Youth Services Agency
has the authority to consent to routine treatment of the child.
FINANCIAL SUPPORT
It is further ORDERED and DECREED that the individual(s)
legally responsible for the financial support of the child shall pay
support to the county in an amount as determined by the Family
Court Division.
INDIAN STATUS
The child is not Indian as defined in 25 U.S.C. § 1903(4), and
the Indian Child Welfare Act does not apply to these
proceedings.
FINDINGS/ORDERS
THE COURT FURTHER FINDS:
The Concurrent Goal for the minor child is: Adoption.
Father does acknowledge that the child is dependent. He
believes she requires services that he is not able to secure
and[,] due to his work schedule, he is not available for his
daughter. Maternal grandmother was approached to establish a
safety plan and further disputes erupted. After the child was
placed at YDC, a family team meeting was held and the family
identified the paternal [grand]parents as an appropriate
placement for the child. The parties agreed that the child has
mental health concerns that need to be addressed. All parties
also agreed that the child would reside with the paternal
grandparents.
-7-
J-S22043-17
Evidence was presented that there was a physical altercation
between the child and her mother on the Wrightsville Bridge.
Mother left the child on the bridge and drove away. Two
Wrightsville police and Officer Reed were called. She [Child] was
evaluated by EMS at the Rutters and scratches were found on
her shoulders. Mother was charged with endangering the
welfare of a child, simple assault and harassment. She remains
incarcerated at this time.
Medical and educational rights: Children Youth and Families is
granted medical and educational rights.
THE COURT FURTHER ORDERS:
CYF shall immediately make a 32 Pa.C.S.A. § 3201 medical
appointment as requested by the GAL and the GAL is authorized
to represent the child in an action pursuant to 32 Pa.C.S.A.
§ 3201 et seq[.,] specifically § 3206(c). [sic]
CYF shall notify Lancaster County Juvenile Probation of the
child’s placement. The paternal [g]randparents shall cooperate
with CYF and Lancaster County Juvenile Probation and ensure
that the child attends all scheduled appointments and hearings.
They shall cooperate with services and ensure that the child is
immediately enrolled in school in the district where the
grandparents reside and shall attend Phoenix Academy.
Such disposition having been determined to be best suited to the
protection and physical, mental and moral welfare of the child.
Trial Court Adjudication and Disposition Order, 8/16/16, at 1-3 (emphasis
added).
The Appendix to the August 16, 2016 Adjudication and Disposition
Order provided, in pertinent part:
COURT-ORDERED SERVICES/CONDITIONS:
AGENCY’S RESPONSIBILITIES:
-8-
J-S22043-17
The Agency shall, at its earliest opportunity, develop a case plan
which shall implement the goal, and which is to [be]
accomplished as soon as practical.
The Agency shall assist in providing referrals to appropriate
agencies so that the persons named herein are able to timely
obtain services set forth in this ORDER.
The Agency shall provide to the persons who are directed to
obtain services reasonable assistance to obtain necessary
financing for the services, HOWEVER, unless the Agency
expressly assumes financial responsibility, the Agency shall NOT
BE LIABLE to pay for the services provided to any individual.
***
MEDICAL AND EDUCATIONAL RIGHTS:
We hereby grant to CYF the right and authority to make
appropriate and necessary decisions concerning the education of
the minor(s), including, if necessary, the decision to enroll the
minor(s) in an appropriate school district, special school, special
classes, and the authority to participate in and approve any
individualized education plan for a minor.
We hereby grant to CYF the right and authority to make
reasonable and appropriate medical decisions for the minor(s),
including the authority to consent to emergency and long-term
medical treatment. This authority does not grant the authority
to make decisions contrary to sound medical opinion or advice,
nor does this authority grant the right to direct that medical care
shall be withheld from a minor.
***
Appendix to Trial Court Adjudication and Disposition, 8/16/16, at 1, 3
(emphasis added).
On August 29, 2016, Attorney Woodward, the GAL, filed a motion to
modify the August 16, 2016 order. In the motion, the GAL stated that, in
the August 16, 2016 order, Child was adjudicated dependent, and physical
-9-
J-S22043-17
and legal custody were transferred to CYF, as were medical and educational
rights. The GAL alleged that CYF had expressed reluctance to arrange and
attend certain medical appointments as ordered in the August 16, 2016
order; however, Paternal Grandmother was willing to schedule and attend all
medical appointments on behalf of Child. The GAL requested that medical
and educational rights be transferred to Paternal Grandmother. The GAL
indicated that CYF was in agreement with such transfer, as was Father, but
the GAL had been unsuccessful in contacting Mother about the requested
transfer. Thus, the GAL requested the trial court to modify the August 16,
2016 order to grant medical and educational rights to Paternal Grandmother.
On October 25, 2016, the trial court held the 90-day status review
hearing. Child was present with the GAL. Mother and Paternal
Grandmother, Child’s emergency caregiver, were present. N.T., 10/25/16,
at 2. Attorney Wanda Neuhaus, counsel for CYF, and Kate Wilhelm, the
assigned caseworker, were also present. Id.
During the status review hearing, Attorney Woodward stated that Child
would like to return to Mother’s home. N.T., at 23-24. Attorney Woodward
then stated the following:
The other thing I wanted to bring up is Grandmother did
pay for [Child] to have a medical procedure and the Agency will
not reimburse her without a Court Order. I would request the
Court order Children and Youth to reimburse Grandmother, since
she went out of her way to ensure that the medical procedure
occurred in a timely manner after the Agency refused to do so.
THE COURT: How much did you pay for the medical procedure?
- 10 -
J-S22043-17
PATERNAL GRANDMOTHER: $540.
THE COURT: You have 14 days to reimburse.
ATTORNEY NEUHAUS: May we approach?
THE COURT: There’s no approaching. I directed the Agency to
make the appointment. They refused to make the appointment.
It is the Agency’s lack of follow through that has caused
[Paternal Grandmother] to outlay the money, and the Agency is
paying her back.
Had they made the arrangements for the medical
appointment and gave [sic] some other information and at least
complied with my order, I would have been sympathetic for the
Agency, but they’re paying her back. I don’t care what it was
for. They’re paying her back, the [$]540. If you want to take
that up on appeal, be my guest. I am not discharging
jurisdiction. You have 14 days to come up with the money
somehow.
I’m not discharging jurisdiction. I would consider returning
her to her [m]other if there are certain safeguards and services
in place, so what are those services? That Mother indicates she
can get the counseling initiated immediately? I don’t agree. You
can’t play the game of going back and forth.
I know you’ve both accommodated her, but you see where
that has gotten her. You see that the boy is in Lancaster. I
don’t think it’s appropriate, based on what you’re telling me, to
allow her to return to Lancaster where it’s easy to fall back into
the pattern of violating curfew.
She has to have responsibility, because the next thing you
know, she’s going to violate probation, and then she will be in a
more secure setting.
There’s a more lax attitude, I would say, with regard to
restrictions at times on the dependency side. We can be very
strict on the dependency side. But when you get to the
delinquency side, I have no control over that case. That is in
another jurisdiction, and she’s subject to the conditions of that
jurisdiction.
- 11 -
J-S22043-17
***
I’m finding the Agency in contempt of the Court Order for
its complete lack of follow through with the directives of this
[c]ourt. Particularly, as it relates to the medical care of the
child, it causes me concern about the Agency and some
caseworkers, not Ms. Wilhelm, but their ability to do their job.
And apparently the caseworker is no longer with the Agency or I
would have addressed it directly with her.
As it is, the dependency shall continue. Legal and physical
custody shall remain with York County Children and Youth.
Placement shall be at the York County Development Center until
such time as [Mother] is able to secure services in her home
upon enrollment in an appropriate educational setting. With the
start of in-home services and counseling, the child can be
removed – can be moved to Mother’s care with a modification of
placement. That petition being submitted to chambers.
I do now transfer medical and educational rights to be
shared between York County Children and Youth and Mother.
Both shall make appropriate decisions regarding the medical and
educational care of the child.
***
N.T., 10/25/16, at 25-29 (emphasis added).
In the October 25, 2016 status review order, the trial court stated:
REASON FOR HEARING
This Status Review Hearing is being held to address the status of
the minor child’s placement and progress of all parties.
REVIEW OF SERVICES
The services ordered at the dispositional hearing pursuant to
Rule 1512 have been put into place by the County Children and
Youth Services Agency (‘Agency’).
CHILD’S SAFETY
- 12 -
J-S22043-17
The child is safe in the current placement setting.
ORDER OF COURT – On the basis of the above findings, IT
IS HEREBY ORDERED THAT:
FURTHER FINDINGS
The court further finds:
Mother: The mother reports that she graduated from Shelly
truck driving school and continues to receive services through
OVR. She resides with her mother in York. Mother does not
believe that the child is applying herself. The mother stated that
she is a resource for her daughter and that she is now willing to
work with services. The caseworker is making a referral for a
Catholic Charities team for mother.
Father: The father has had no recent contact with YCOCYF. The
caseworker has left messages. Mail was sent to [F]ather’s
address and was returned.
Child: The child is enrolled in Phoenix Academy in Lancaster
County schools. Her grandparents are not sure if they can keep
the child in their care. She was initially on house arrest and she
did well. However, once she was removed from home
monitoring, her behavior deteriorated. She goes out late at
night in violation of the curfew. They believe that she would be
better served in her mother’s care.
She continues to have issues at school. She has had bad
interaction and has walked out in class. Juvenile Probation
remains involved. She was adjudicated delinquent in Lancaster
County and sentenced to probation.
She was directed to attend the Pulse program at LCYIC, attend
individual counseling and cooperate with York County CYF.
Review of Services: The services have NOT been put in place as
directed. The agency has failed to refer for family based or
youth advocate services.
Clear and convincing evidence has been presented to find that it
is contrary to her welfare to remain in the care of her mother
and grandmother until services can be put in place.
- 13 -
J-S22043-17
The Court further finds that the agency has failed to comply with
the order for adjudication and is in contempt of the court order.
FURTHER ORDERS
IT IS FURTHER ORDERED THAT:
The adjudication of dependency of the minor child, [K. G.], shall
continue.
The agency shall immediately, and within 14 days, reimburse
[Paternal Grandmother] $540.00. [T]he court further transfers
placement of the child to York County Youth Development Center
until services can be put in place in Mother’s home. The [c]ourt
hereby transfers medical and educational rights to CYF and
Mother. They shall share in making appropriate medical and
educational decisions for the child until further order of court.
The child shall immediately be enrolled in school in York County
in an appropriate educational setting. Upon enrollment in
school, the start of an inhome team and counseling, the child
may return to the care of her mother with ongoing services
being provided to the family.
Such disposition having been determined to be best suited to the
protection and physical, mental and moral welfare of the child.
Status Review Order, 10/25/16, at 1-2 (emphasis added).
In its brief on appeal, CYF raises two issues, as follows:
1. Did the Trial Court err in ordering a Governmental Child
Welfare Agency to reimburse the minor’s grandmother the
amount of out-of-pocket costs paid by the Grandmother for the
performance of an abortion for a dependent minor?
2. Did the Trial Court err in making a finding of contempt against
the Child Welfare Agency when: (a) there was no notice to the
Child Welfare Agency of the allegations of contempt; (b) there
was insufficient evidence that the Child Welfare Agency was in
contempt; and (c) there was insufficient evidence that the
amount ordered to be paid to Paternal Grandmother represented
- 14 -
J-S22043-17
damages sustained by Paternal Grandmother by reason of the
Agency’s conduct in failing to follow the court’s directive?
CYF’s Brief, at 5.
CYF first argues that the trial court erred in ordering CYF, a
governmental child welfare agency[,] to reimburse Paternal Grandmother
the amount of her out-of-pocket costs for the performance of an abortion on
Child. CYF states as follows:
York County Office of Children, Youth and Families is a
governmental entity created pursuant to the Child Protective
Services Law. 23 Pa.C.S.A. § 6302(b). As such, it is funded with
public funds from the Federal Government, the Commonwealth
of Pennsylvania and the County Government. State law provides
that no public funds “shall be expended by an [sic] State or local
government agency for the performance of an abortion.” 62 P.S.
§ 453. It is noted that there is an exception to this prohibition,
if the abortion is needed to protect the health of the [m]other or
when the pregnancy is caused by rape or incest. 62 P.S. § 453.
These circumstances were not proved at the hearing. The [trial
court’s] Order to reimburse the Paternal Grandmother for costs
of an abortion violates both the Pennsylvania Constitution and
the law of the Commonwealth.
Further, the purpose of the local child welfare agency, such
as YCOCYF, is to: “establish in each county protective services
for the purpose of investigating the reports swiftly and
competently, providing protection for children from further
abuse,” and to provide services “to ensure the child’s well-being
and to preserve, stabilize and protect the integrity of family life.”
23 Pa.C.S.A. § 6302(b). The Juvenile Act governs both the
county child welfare agency and the Juvenile Court and provides
as the purpose: “to provide for the care, protection, safety and
wholesome mental and physical development of children”. . . .
42 Pa.C.S.A. § 6301(b). Throughout [t]he Juvenile Act, the
Court is charged with protecting the health, safety, protection,
and physical, mental or moral welfare of the child. 42 Pa.C.S.A.
§ 6301 et seq. It would be contrary to the purposes of both the
Child Protective Services Law[, 23 Pa.C.S. § 6301 et seq.,] and
[t]he Juvenile Act[, 42 Pa.C.S. § 6301 et seq.,] for the Child
- 15 -
J-S22043-17
Welfare Agency to fund and promote abortions. By ordering the
Agency to reimburse [Paternal] Grandmother for this cost, the
[trial court] has compromised these statements of purpose - to
protect children, even unborn children.
CYF’s Brief, at 11-12.2
In its second claim, CYF argues as follows:
There are two bases to find that the Trial Court erred in
finding YCOCYF in contempt of the [trial court’s] Orders - one
procedural and one based upon lack and insufficiency of
evidence.
Firstly, there was no notice provided to YCOCYF regarding
the allegations of contempt in general and specifically. While
neither [t]he Juvenile Act nor the Rules of Dependency Court
Procedure provide specific procedure for a finding of contempt,
the requirement of notice is basic to all legal provisions
regarding contempt. See 23 Pa.C.S. § 5401 and 231 Pa.Code
Rule 1915.12 (custody contempt); 234 Pa.Code Rule 140
(contempt proceedings before Magisterial District Judge): 42
Pa.C.S. § 4136.
All of these rules and statutes require that a person
accused of contempt of a court order be provided notice of the
accusation of contempt in general and also be provide notice of
the specific acts that are the basis for the allegation of contempt.
The purpose of the notice requirement is to allow the accused
the opportunity to make a defense. No such notice was provided
in this case. As a result, YCOCYF did not have the opportunity to
prepare a defense and/or have the necessary witnesses present
to defend these allegations. Therefore, this finding was made
without a full and fair hearing.
Secondly, there is insufficient evidence to support a finding
of contempt. “Because contempt is an extraordinary remedy
____________________________________________
2
In support of its constitutional argument, CYF cites Article 3 of the
Pennsylvania Constitution, which provides, “No money shall be paid out of
the treasury, except on appropriations made by law. . . .” CYF’s Brief, at 15
(citing Pa. Const. Art 3, § 24).
- 16 -
J-S22043-17
and because it exposes the offending party to fines or
punishment,. . ., it is strictly interpreted.” By a preponderance
of the evidence, the testimony must show that the failure to
comply with the order was “volitional” and with “wrongful
intent”. Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super.
2009); Barrett v. Barrett, 368 A.2d 616, 621 (Pa. Supreme
1997). The mere showing of noncompliance or even misconduct
is not sufficient. Lachat v. Hinchcliffe, 769 A.2d [481, 488
(Pa. Super. 2001)].
In the case at bar, there is insufficient evidence to support
a finding of contempt. With regard to the medical appointment,
there was positively no evidence that the Agency failed to act;
there is only evidence that the [Paternal Grandmother] was
willing to act and did act. With regard to providing services,
such as therapy and family-based services, the evidence shows
unequivocally that the caseworker did make multiple attempts
regarding these services. The family did not want to be involved
in the in-home family-based services; therefore, the Agency
made numerous efforts to work through the geographical
barriers to individual therapy. When it became apparent that
the child was not going to stay in Lancaster County (the day or
two before the hearing), and would potentially return to York
County with her [m]other, the Agency immediately made a
referral to Catholic Charities for a Family-Based Team to work
with Mother and K.G. Evidence was also provided that the
caseworker maintained contact with the Lancaster County
Juvenile Probation Officer [(“JPO”)] (as required by the Court
Order of August 16, 2016) and that as a result of the difficulties
in obtaining individual therapy, JPO enrolled K.G. in the PULSE
program. These facts do not support a finding of willful,
volitional action with bad intent.
Further, even if there was a failure to act [on the part of
CYF] in scheduling the medical consultation associated with the
Abortion Control Act, there was no loss or out of pocket expense
to the Paternal Grandmother. Such a medical appointment can
be paid for with public funds and would have been covered by
Medical Assistance. It is the abortion itself which would not have
been covered and which would have caused out of pocket
expense to the Paternal Grandmother. YCOCYF was not (and
could not have been) ordered to pay for the abortion. Therefore,
there is no connection between the alleged failure to follow the
court order and the reimbursement of $540.00.
- 17 -
J-S22043-17
CYF’s Brief, at 12-14.
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
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 Interest of: L.Z., A Minor Child, 641 Pa. 343, 360, 111 A.3d 1164,
1174 (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[.]
42 Pa.C.S.A. § 6302.
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child” further.
The question of 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.
- 18 -
J-S22043-17
Id. at 872 (internal quotations and citations omitted); see also In re J.C.,
5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he 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.” G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[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 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).
Id. at 617.
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. 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.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
- 19 -
J-S22043-17
(1) [t]he court shall conduct a permanency hearing for
the purpose of determining or reviewing the permanency
plan of the child, the date by which the goal of
permanency for the child might be achieved and whether
placement continues to be best suited to the safety,
protection and physical, mental and moral welfare of the
child. In any permanency hearing held with respect to
the child, the court shall consult with the child regarding
the child’s permanency plan in a manner appropriate to
the child’s age and maturity. . . .
(2) If the county agency or the child’s attorney alleges
the existence of aggravated circumstances and the court
determines that the child has been adjudicated
dependent, the court shall then determine if aggravated
circumstances exist. If the court finds from clear and
convincing evidence that aggravated circumstances exist,
the court shall determine whether or not reasonable
efforts to prevent or eliminate the need for removing the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family shall be made or continue
to be made and schedule a hearing as provided in
paragraph (3).
***
42 Pa.C.S. § 6351(e).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(f) Matters to be determined at permanency hearing.-
At each permanency hearing, a court shall determine all of
the following:
(1) The continuing necessity for and appropriateness
of the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
- 20 -
J-S22043-17
(3) The extent of progress made toward alleviating
the circumstances which necessitated the original
placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for
the child might be achieved.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the
Commonwealth, whether the placement continues to be
best suited to the safety, protection and physical, mental
and moral welfare of the child.
***
(9) If the child has been in placement for at least 15 of
the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable
efforts to prevent or eliminate the need to remove the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family need not be made or
continue to be made, whether the county agency has filed
or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified
family to adopt the child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to
- 21 -
J-S22043-17
the child’s parent, guardian or custodian within the
time frames set forth in the permanency plan.
***
(f.1) Additional determination. — Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return
of the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent,
guardian or custodian is not best suited to the safety,
protection and physical, mental and moral welfare of the
child.
(3) If and when the child will be placed with a legal
custodian in cases where return to the child’s parent,
guardian or custodian or being placed for adoption is not
best suited to the safety, protection and physical, mental
and moral welfare of the child.
(4) If and when the child will be placed with a fit and
willing relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
(5) If and when the child will be placed in another living
arrangement intended to be permanent in nature which is
approved by the court in cases where the county agency
has documented a compelling reason that it would not be
best suited to the safety, protection and physical, mental
and moral welfare of the child to be returned to the
child’s parent, guardian or custodian, to be placed for
adoption, to be placed with a legal custodian or to be
placed with a fit and wiling relative.
- 22 -
J-S22043-17
(f.2) Evidence. – Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including
evidence of the use of alcohol or a controlled substance that
places the health, safety or welfare of the child at risk, shall be
presented to the court by the county agency or any other party
at any disposition or permanency hearing whether or not the
conduct was the basis for the determination of dependency.
(g) Court order.— On the basis of the determination made
under subsection (f.1), the court shall order the
continuation, modification or termination of placement or
other disposition which is best suited to the safety,
protection and physical, mental and moral welfare of the
child.
***
42 Pa.C.S. § 6351 (some emphasis added).
In its Pa.R.A.P. 1925(a) Opinion, the trial court stated as follows:
[T]he [c]ourt does hereby adopt its Status Review Order
October 25, 2016 as the place on the record where the reasons
for the decision are found and supplements as follows:
This Court considered the credible evidence presented at
the Adjudication Hearing held on August 16, 2016, the Status
Review Hearing held on October 25, 2016, and the evidence
admitted into the record. Appellant argues that the [c]ourt
abused its discretion by ordering the Agency to reimburse the
minor child’s Paternal Grandmother, [N.T.-C.], the amount of
$540.00, reflecting the out-of-pocket costs paid by Grandmother
regarding the subject minor child, [K.G].
At an Adjudication hearing held on August 16, 2016, the
Court directed1, inter alia, that the Agency to [sic] schedule an
‘evaluation for the child’ pursuant to the Abortion Control Act.
Hr’g Tr. 44:1 (August 16, 2016)(emphasis added). The [c]ourt
also indicated that the GAL could represent the minor child in
subsequent related proceedings “based on information obtained
as a result of that evaluation”. Hr’g Tr. 44: 3-4 (August 16,
2016). The [c]ourt further directed the Agency to refer the
family for Family Based Services and Youth Advocate. The
Agency then willfully refused to schedule a medical appointment
for the minor in direct contradiction of the [c]ourt’s directive.
- 23 -
J-S22043-17
The GAL, in its Motion to Modify Order of August 16, 2016 2,
requested this [c]ourt to transfer Medical and Educational rights
to Paternal Grandmother due to the Agency’s “reluctance to
arrange and attend certain medical appointments as Ordered on
August 16 2016.”3 The [c]ourt then determined that it was in
the best interest of the child to transfer medical rights to
Paternal Grandmother4 and later to Mother to ensure that the
child received timely and appropriate medical care.
It is disingenuous of the Agency to now argue in opposition
of this [c]ourt’s directives from the Order of August 16, 2016, as
the Agency indicated its support for the directives off the record,
made no objection to the directives at the time the Order was
entered, and did not appeal or preserve an objection at any time
subsequent to the [c]ourt entering that Order. It is only now,
after the Agency is found in contempt for failure to follow
directives of the [c]ourt, that the Agency raises an objection to
the initial directives, which included the Agency making a
medical appointment for the child.
The Court found that the Agency repeatedly ignored this
[c]ourt’s directives. At the hearing on October 25, 2016, this
[c]ourt not only found that the Agency ignored directives to
make a medical appointment for the child; it also found that the
Agency failed to provide any services to the child or the family.
The Agency showed a deliberate indifference to the directives of
this [c]ourt and to the welfare of the child.
At the hearing held on October 25, 2016, the [c]ourt
directed the Agency to reimburse Paternal Grandmother for
expenses paid on behalf of the minor child, as the [c]ourt found
that the Agency failed and refused to comply with [c]ourt
directives, particularly the directive to schedule the child for a
medical consultation.
The [c]ourt found that any out-of-pocket expenses
Paternal Grandmother incurred were due to the Agency’s failure
to follow Court directives. In addition, the record shows that due
to Agency’s failure to provide the minor child with the
appropriate medical care, as was directed by the Court per the
Order of Adjudication and Disposition of August 16, 2016, the
GAL requested a change in legal custody related to medical
decisions for the child. No objection was made by the Agency
and no appeal was taken. Since the Agency refused to ensure
- 24 -
J-S22043-17
that the child was timely seen by a physician, Paternal
Grandmother was forced to make medical appointments for the
child at her expense. On the Order of August 16, 2016, the
[c]ourt directed the Agency to “immediately make a [18]
Pa.C.S.A. §32016 medical appointment as requested by the GAL
and the GAL is authorized to represent the child in an action
pursuant to [18] Pa.C.S.A. §3201 et seq, specifically §3206(c).”
Id. at 3. This [c]ourt failed to find anywhere in the record
where the [c]ourt ordered the child to undergo an abortion, or
otherwise directed the Agency to arrange or pay for any such
procedure.
The [c]ourt found the Agency “in contempt of the Court
Order for its complete lack of follow through with the directives
of [the] Court” and as this [c]ourt stated, the lack of follow
through causes this [c]ourt “concern about the Agency and some
caseworkers. . . ability to do their job.” Hr. Tr. 29: 3-8 (October
25, 2016). To be punished for contempt, a party must not only
have violated a court order, but that order must have been
“definite, clear, and specific.”7 We find that the Order of August
16, 2016 was very clear in its directive to the Agency, and we
find that supported a finding that the Agency willfully did not
comply. This [c]ourt entered this finding of contempt after a full
hearing, scheduled by the Agency, where the GAL and the
Agency provided evidence that supported a finding that the
Agency had willfully chosen to ignore the [c]ourt’s directives
throughout the time of the Agency involvement with the child.
The purpose of the Status Review is to ensure that the services
directed were being provided by the Agency. The court found no
services were provided. The sanction upon the Agency, of the
fine made payable to Paternal Grandmother, is compensation for
the damage Paternal Grandmother sustained by reason of the
Agency’s conduct in failing to follow the [c]ourt’s directives.
The [c]ourt notes a culture at the Agency where
caseworkers choose what directives to follow. The purpose of
the Juvenile Act is for the Court to ensure that the best interest
of the child is a paramount consideration, and the Agency must
follow the directives of the [c]ourt to protect the child.
Based on reliable and credible evidence that demonstrated
Appellant’s [CYF’s] continuing pattern of inability to follow
[c]ourt directives, the [c]ourt found that the Agency was in
contempt of the [c]ourt Order and was sanctioned appropriately.
- 25 -
J-S22043-17
Competent evidence on the record supports the outcome.
___________________________________________________
1
The Court notes that the service requirements for the Agency
and family are outlined in the Court Ordered services and
conditions that was prepared by the Agency and presented for
incorporation.
2
Filed August 29, 2016.
3
Motion to Modify Order of August 16, 2016.
4
By Order dated August 30th, 2016, this [c]ourt granted [N.T.-C.
(Paternal Grandmother)] “the right and authority to make
reasonable and appropriate medical decisions for the minor(s),
including the authority to consent to emergency and long-term
medical treatment”.
5
By the Status Review Order dated October 25, 2016, this
[c]ourt transferred medical rights to both CYF and Mother.
6
We note [that] in the Order the statute was incorrectly stated
as 32 Pa.C.S.A. § 3201 et seq.
7
Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. Ct.
2001)(quoting Marian Shop Inc. v. Baird, 448 Pa.Super. 52,
670 A.2d 671, 673 (1996).)
Trial Court Rule 1925(a) Opinion, 12/23/16, at 1-7 (emphasis in original)
(footnotes in original).
The statute to which the trial court referred, 18 Pa.C.S. § 3201, is
known as the Abortion Control Act. Section 3205 of the Abortion Control act
relates to the informed consent of the woman upon whom the abortion is to
be performed. Section 3205 provides:
§ 3205. Informed Consent
- 26 -
J-S22043-17
(a) General rule.— No abortion shall be performed or induced
except with the voluntary and informed consent of the woman
upon whom the abortion is to be performed or induced. . . .
18 Pa.C.S. § 3205.
Section 3206 of the Abortion Control Act provides as follows:
§ 3206. Parental consent.
(a) General rule.--Except in the case of a medical
emergency, or except as provided in this section, if a pregnant
woman is less than 18 years of age and not emancipated, or if
she has been adjudged an incapacitated person under 20 Pa.C.S.
§5511 (relating to petition and hearing; independent
evaluation), a physician shall not perform an abortion upon her
unless, in the case of a woman who is less than 18 years of age,
she first obtains the informed consent both of the pregnant
woman and of one of her parents; or, in the case of a woman
who is an incapacitated person, she first obtains the informed
consent of her guardian. In deciding whether to grant such
consent, a pregnant woman’s parent or guardian shall consider
only their child’s or ward’s best interests. In the case of a
pregnancy that is the result of incest where the father is a party
to the incestuous act, the pregnant woman need only obtain the
consent of her mother.
(b) Unavailability of parent or guardian.--If both parents
have died or are otherwise unavailable to the physician within a
reasonable time and in a reasonable manner, consent of the
pregnant woman’s guardian or guardians shall be sufficient. If
the pregnant woman’s parents are divorced, consent of the
parent having custody shall be sufficient. If neither any parent
nor a legal guardian is available to the physician within a
reasonable time and in a reasonable manner, consent of any
adult person standing in loco parentis shall be sufficient.
(c) Petition to court for consent.--If both of the parents or
guardians of the pregnant woman refuse to consent to the
performance of an abortion or if she elects not to seek the
consent of either of her parents or of her guardian, the court
of common pleas of the judicial district in which the applicant
resides or in which the abortion is sought shall, upon petition
or motion, after an appropriate hearing, authorize a physician
- 27 -
J-S22043-17
to perform the abortion if the court determines that the
pregnant woman is mature and capable of giving informed
consent to the proposed abortion, and has, in fact, given such
consent.
(d) Court order.--If the court determines that the pregnant
woman is not mature and capable of giving informed consent or
if the pregnant woman does not claim to be mature and capable
of giving informed consent, the court shall determine whether
the performance of an abortion upon her would be in her best
interests. If the court determines that the performance of an
abortion would be in the best interests of the woman, it shall
authorize a physician to perform the abortion.
(e) Representation in proceedings.--The pregnant woman
may participate in proceedings in the court on her own behalf
and the court may appoint a guardian ad litem to assist her. The
court shall, however, advise her that she has a right to court
appointed counsel, and shall provide her with such counsel
unless she wishes to appear with private counsel or has
knowingly and intelligently waived representation by counsel.
(f) Proceedings.—
(1) Court proceedings under this section shall be
confidential and shall be given such precedence over
other pending matters as will ensure that the court may
reach a decision promptly and without delay in order to
serve the best interests of the pregnant woman. In no
case shall the court of common pleas fail to rule within
three business days of the date of application. A court of
common pleas which conducts proceedings under this
section shall make in writing specific factual findings and
legal conclusions supporting its decision and shall, upon
the initial filing of the minor’s petition for judicial
authorization of an abortion, order a sealed record of the
petition, pleadings, submissions, transcripts, exhibits,
orders, evidence and any other written material to be
maintained which shall include its own findings and
conclusions.
(2) The application to the court of common pleas shall be
accompanied by a non-notarized verification stating that
the information therein is true and correct to the best of
- 28 -
J-S22043-17
the applicant’s knowledge, and the application shall set
forth the following facts:
(i) The initials of the pregnant woman.
(ii) The age of the pregnant woman.
(iii) The names and addresses of each parent,
guardian or, if the minor's parents are deceased
and no guardian has been appointed, any other
person standing in loco parentis to the minor.
(iv) That the pregnant woman has been fully
informed of the risks and consequences of the
abortion.
(v) Whether the pregnant woman is of sound mind
and has sufficient intellectual capacity to consent
to the abortion.
(vi) A prayer for relief asking the court to either
grant the pregnant woman full capacity for the
purpose of personal consent to the abortion, or to
give judicial consent to the abortion under
subsection (d) based upon a finding that the
abortion is in the best interest of the pregnant
woman.
(vii) That the pregnant woman is aware that any
false statements made in the application are
punishable by law.
(viii) The signature of the pregnant woman.
Where necessary to serve the interest of justice,
the orphans’ court division, or, in Philadelphia, the
family court division, shall refer the pregnant
woman to the appropriate personnel for assistance
in preparing the application.
(3) The name of the pregnant woman shall not be
entered on any docket which is subject to public
inspection. All persons shall be excluded from hearings
under this section except the applicant and such other
- 29 -
J-S22043-17
persons whose presence is specifically requested by the
applicant or her guardian.
(4) At the hearing, the court shall hear evidence relating
to the emotional development, maturity, intellect and
understanding of the pregnant woman, the fact and
duration of her pregnancy, the nature, possible
consequences and alternatives to the abortion and any
other evidence that the court may find useful in
determining whether the pregnant woman should be
granted full capacity for the purpose of consenting to the
abortion or whether the abortion is in the best interest of
the pregnant woman. The court shall also notify the
pregnant woman at the hearing that it must rule on her
application within three business days of the date of its
filing and that, should the court fail to rule in favor of
her application within the allotted time, she has the right
to appeal to the Superior Court.
(g) Coercion prohibited.--Except in a medical emergency, no
parent, guardian or other person standing in loco parentis shall
coerce a minor or incapacitated woman to undergo an abortion.
Any minor or incapacitated woman who is threatened with such
coercion may apply to a court of common pleas for relief. The
court shall provide the minor or incapacitated woman with
counsel, give the matter expedited consideration and grant such
relief as may be necessary to prevent such coercion. Should a
minor be denied the financial support of her parents by reason
of her refusal to undergo abortion, she shall be considered
emancipated for purposes of eligibility for assistance benefits.
(h) Regulation of proceedings.--No filing fees shall be
required of any woman availing herself of the procedures
provided by this section. An expedited confidential appeal shall
be available to any pregnant woman whom the court fails to
grant an order authorizing an abortion within the time specified
in this section. Any court to which an appeal is taken under this
section shall give prompt and confidential attention thereto and
shall rule thereon within five business days of the filing of the
appeal. The Supreme Court of Pennsylvania may issue such
rules as may further assure that the process provided in this
section is conducted in such a manner as will ensure
confidentiality and sufficient precedence over other pending
matters to ensure promptness of disposition.
- 30 -
J-S22043-17
(i) Penalty.--Any person who performs an abortion upon a
woman who is an unemancipated minor or incapacitated person
to whom this section applies either with knowledge that she is a
minor or incapacitated person to whom this section applies, or
with reckless disregard or negligence as to whether she is a
minor or incapacitated person to whom this section applies, and
who intentionally, knowingly or recklessly fails to conform to any
requirement of this section is guilty of “unprofessional
conduct” and his license for the practice of medicine and
surgery shall be suspended in accordance with procedures
provided under the act of October 5, 1978 (P.L.1109, No.261),
known as the Osteopathic Medical Practice Act, the act of
December 20, 1985 (P.L.457, No.112), known as the Medical
Practice Act of 1985, or their successor acts, for a period of
at least three months. Failure to comply with the requirements
of this section is prima facie evidence of failure to obtain
informed consent and of interference with family relations in
appropriate civil actions. The law of this Commonwealth shall
not be construed to preclude the award of exemplary damages
or damages for emotional distress even if unaccompanied by
physical complications in any appropriate civil action relevant to
violations of this section. Nothing in this section shall be
construed to limit the common law rights of parents.
18 Pa.C.S. § 3206 (emphasis added).
In In re Doe, 613 Pa. 339, 33 A.3d 615 (2011), our Supreme Court
set forth the only published interpretation of the court’s responsibilities
under section 3206(c), which is known as the “judicial bypass” section. Id.
at 342, 357-358, 33 A.3d at 617, 627. The Supreme Court determined that
the appellate courts must follow an abuse of discretion standard in reviewing
a trial court’s maturity/capacity determination under the judicial bypass
section. Id. at 353-354, 33 A.3d at 624. The Supreme Court explained:
“[a]n abuse of discretion is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
- 31 -
J-S22043-17
of partiality, prejudice, bias or illwill . . . discretion is abused.”
An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion based
on the record before it. A trial court’s exercise of discretion,
however, is not unfettered.
Id. at 355-356, 33 A.3d at 626.
In In re Doe, the Supreme Court reviewed the Superior Court’s ruling
on the trial court’s denial of a minor child’s petition for judicial authorization
of an abortion under section 3206(c) of the Abortion Control Act. Likewise,
in In re L.D.F., a panel of this Court reviewed the trial court’s denial of a
minor child’s petition for judicial authorization of an abortion under section
3206(c) of the Abortion Control Act. Notably, both cases involved a petition
filed by the minor child seeking to have judicial authorization of an abortion
under section 3206(c) of the Abortion Control Act, and evidentiary hearings
on the petitions. In contrast, the present appeal did not involve petitions
under section 3206(c) of the Abortion Control Act and an evidentiary
hearing.
With regard to CYF’s due process argument, we observe:
Formal notice and an opportunity to be heard are
fundamental components of due process when a person may be
deprived in a legal proceeding of a liberty interest, such as
physical freedom, or a parent’s custody of her child. Both notice
and an opportunity to be heard must be afforded at a meaningful
time in a meaningful manner. As previous panels of this Court
have explained: [n]otice, in our adversarial process, ensures
that each party is provided adequate opportunity to prepare
and thereafter properly advocate its position, ultimately exposing
all relevant factors from which the finder of fact may make an
informed judgment.
- 32 -
J-S22043-17
Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (internal citations
and quotation marks omitted) (emphasis added).
When reviewing contempt orders, we must consider that:
Each court is the exclusive judge of contempts against its
process. The contempt power is essential to the preservation of
the court’s authority and prevents the administration of justice
from falling into disrepute. When reviewing an appeal from a
contempt order, the appellate court must place great reliance
upon the discretion of the trial judge.
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002)
(quoting Garr v. Peters, 773 A.2d 183, 189 (Pa. Super 2001)). “The court
abuses its discretion if it misapplies the law or exercises its discretion in a
manner lacking reason.” Godfrey v. Godfrey, 894 A.2d 776, 780 (Pa.
Super. 2006). Additionally, “[i]n proceedings for civil contempt of court, the
general rule is that the burden of proof rests with the complaining party to
demonstrate, by preponderance of the evidence that the defendant is in
noncompliance with a court order.” Lachat v. Hinchcliffe, 769 A.2d 481,
488 (Pa. Super. 2001). However, a mere showing of noncompliance with a
court order, or even misconduct, is never sufficient alone to prove civil
contempt.” Id. Moreover, we recognize that:
To sustain a finding of civil contempt, the complainant must
prove certain distinct elements: (1) that the contemnor had
notice of the specific order or decree which he is alleged to have
disobeyed; (2) that the act constituting the contemnor’s violation
was volitional; and (3) that the contemnor acted with wrongful
intent.
Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).
- 33 -
J-S22043-17
Here, the trial court went well beyond the scope of the Juvenile Act
proceedings and determinations set forth in section 6302 and 6351 of the
Juvenile Act and went to a matter appropriately included in Abortion Control
Act proceedings. Section 3206 of the Abortion Control Act expressly sets
forth the procedures for judicial bypass in order for a minor to have an
abortion under court direction. Not only did CYF have no notice of a petition
for a judicial bypass under section 3206 of the Abortion Control Act, because
none was filed, but it also lacked notice of any contempt proceedings against
it, because no petition for contempt was filed, either. There was no petition
under section 3206 of the Abortion Control Act or any contempt petition
before the trial court when the court imposed the sanction of requiring CYF
to reimburse Paternal Grandmother $540 for the amount of money she paid
for Child’s abortion. CYF certainly was not on notice that, by delaying a few
days in taking Child to a physician, between the August 16, 2016
dependency order and the August 30, 2016 order, in which the court
transferred medical rights to Paternal Grandmother, having to pay for the
cost of child to undergo an abortion was even a possible sanction to be
imposed on CYF. This is especially true where there is nothing in the
Abortion Control Act that would appear to require an agency to pay for an
abortion for a minor child, even a minor child who proceeds under the
judicial bypass section, 18 Pa.C.S. § 3206(c), and the trial court does not
cite any such authority. Thus, we conclude that the trial court could not
- 34 -
J-S22043-17
indirectly order CYF to pay for Child’s abortion under the Abortion Control
Act, by means of a contempt finding and sanction, where it could not do so
directly under the Abortion Control Act.
Accordingly, we find that the trial court abused its discretion, as it
failed to follow proper procedure when it found CYF in contempt of court,
and sanctioned CYF, requiring it to reimburse Paternal Grandmother for the
cost of Child’s abortion. We are constrained to vacate the trial court’s order
finding CYF in contempt and directing CYF to pay Grandmother $540, and
remand the matter for further dependency proceedings under the Juvenile
Act.
Order vacated, in part, insofar as it imposes a $540 sanction on CYF;
case remanded for further proceedings. Jurisdiction relinquished.
Judge Shogan joins the Memorandum.
Judge Moulton concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2017
- 35 -