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J. A35036/03


2003 PA Super 511

DEBBIE BROOKS-GALL, : IN
THE
SUPERIOR
COURT
OF
Appellant
:

PENNSYLVANIA







:



v.



:







:
RAYMOND MICHAEL GALL,


:
No. 1720 MDA 2002


Appellee



:


Appeal from the Order entered October 24, 2002
Court of Common Pleas, Wyoming County,
CIVIL at Nos. 2002-167.

BEFORE: JOHNSON, MONTEMURO, and TAMILIA, JJ.


OPINION BY JOHNSON, J.:

Filed: December 24, 2003
1 In this appeal, Debbie Brooks-Gall ("Mother") contends that the trial
court violated her due process rights and the procedural safeguards of the
Juvenile Act, 42 Pa.C.S. 6301-6365, and acted without jurisdiction when
it sua sponte removed her children from their home and placed them in
foster care following a hearing on Mother's Protection from Abuse ("PFA")
petition. We agree. Therefore, we reverse the order and remand for the
determination of the appropriate division of custody of the children between
the parents.
2 Mother and Father are the parents of two minor daughters, A.R.G. and
A.J.G., who were ages twelve and eight, respectively, as of the filing of this

Retired Justice assigned to the Superior Court.



J. A35036/03


appeal. Mother filed for divorce from Father on February 20, 2002. On
September 10, 2002, the trial court granted joint legal custody to both
parents and primary physical custody to Father and partial custody to
Mother. The parties' divorce process has been extremely contentious with
the trial court finding that "the parties have engaged in unrestricted,
unremitting warfare with each other wherein the children have been used as
weapons; the said warfare having caused extreme emotional disturbance to
said children." Trial Court Order (Custody), 10/24/02.
3 The incident which precipitated the hearing and resulting orders of
October 24, 2002 occurred on October 3, 2002, when the children returned
to Father's custody after a visit with Mother. As the family prepared to go to
bed, an argument ensued regarding library book fines. During the
argument, the younger daughter tried to close the door to her room and
Father pushed the door open. The door hit the child in the forehead and
caused her to fall backward. The child suffered bruising on her head and
back as a result. The older daughter, on hearing her younger sister crying,
came into the room. Father spanked the older daughter one time and
grabbed her arm causing it to bruise.
4 As a result of the incident, Mother took the children to the emergency
room and eventually obtained a temporary PFA order on behalf of the
children. On October 24, 2002, the Honorable Brendan J. Vanston of the

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J. A35036/03


Court of Common Pleas of Wyoming County held a hearing on the PFA
matter. Immediately after the hearing, the court dismissed Mother's PFA
petition finding that the injuries did not constitute abuse and that "any
injuries received by the children were insubstantial and caused by accident
rather than intentional act on the part of [Father]." Trial Court Order
(Findings of Fact), 10/24/02, at 2 (unnumbered). Furthermore, the trial
court stated that Mother had "blown the incident of October 3 utterly out of
proportion in an attempt to circumvent the Court's ruling in the prior custody
case." Trial Court Opinion, 11/12/02, at 4.
5 However, the court found that the children were afraid of Father and
that both Mother and Father had used the children as "weapons" against
each other causing the children "extreme emotional disturbance." Trial
Court Order (Custody), 10/24/02, at 1 (unnumbered). The trial court then
determined that because the custody case was also before the trial court,
the court was required to "reevaluate the best interests and permanent
welfare of the children." Trial Court Opinion, 11/12/02, at 5. The court
found that it was not in the children's best interest to reside with either
parent. As no other responsible adult was available, the court directed the
Wyoming County Human Services Agency, which the court refers to as
Children and Youth Services Agency, to file petitions seeking a dependency
adjudication and "treating the hearing as an emergency detention hearing,

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J. A35036/03


directed that the children be placed in a foster home pending hearing on the
issue of dependency." Trial Court Opinion, 11/12/02, at 5. Following the
issue of the orders, the court stated, "Folks, I warned you just keep it up
and you're going to visit your kids in a foster home and that's exactly what
happened. Congratulations." N.T., 10/24/02, at 192.
6 The Children and Youth Services Agency filed dependency petitions on
October 25, 2002. The trial court scheduled the dependency hearing for
November 14, 2002, which was the next scheduled date for dependency
hearings, even though 42 Pa.C.S. Section 6335 requires hearings within ten
days of the filing of a dependency petition. The court never held the
dependency hearing but instead entered an interim order on December 12,
2002, granting joint physical custody to both parents commencing December
21, 2002, without mention of legal custody.
7 In early November 2002, Mother entered a petition for stay of final
order with the trial court and filed a notice of appeal and petition for
supersedeas with this Court. We denied the petition for supersedeas. On
January 7, 2002, the trial court issued orders withdrawing the dependency
petitions.
8 Mother originally appealed both the order dismissing her PFA petition
and the order placing the children in foster care. The appeals were docketed
by this Court at numbers 1720 MDA 2002 and 1725 MDA 2002. On October

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J. A35036/03


22, 2003, the day of oral arguments and prior thereto, Mother filed a
praecipe to discontinue the appeal at number 1725 MDA 2002 relating to the
PFA petition. Accordingly, we will limit our review to Mother's question
relating to the appeal filed at 1720 MDA 2002 concerning the custody of the
children.
9 Mother presents the following question for our review:
1. Did the lower court commit an error of law when it removed
Mother's children from her custody and placed them in state
custody without providing due process to the litigants and
without following the Juvenile Act procedures?

Brief for Appellant at 7.
10 This case involves issues relating both to child custody and to custody
and dependency determinations under the Juvenile Act. Our scope of review
of questions relating to both issues is of the broadest type. See Shandra v.
Williams, 819 A.2d 87, 90 (Pa. Super. 2003); see also In re R.W.J., 826
A.2d 10, 12 (Pa. Super. 2003). While we must accept the trial court's
credibility determinations, we are bound only by those findings of fact that
are supported by the record. See id. We are not bound by the trial court's
inferences and conclusions drawn from the facts and we review the court's
actions for abuse of discretion. See id.
11 Mother's question asserts an error by the trial court that is extremely
disturbing to this Court. Mother contends that the trial court violated her

-5-



J. A35036/03


due process rights and the procedural safeguards of the Juvenile Act, 42
Pa.C.S. 6301-6365, and acted without jurisdiction when it sua sponte
removed the children from their home and placed the children in foster care.
Brief for Appellant at 30-38. Preliminarily, we note that Father accepts and
adopts Mother's argument and the Pennsylvania Coalition Against Domestic
Violence filed a compelling Amicus Curiae Brief in support of Mother's appeal
on this question.
12 Furthermore, although the trial court did return the physical custody of
the children to their parents two months after the order in question, the
legal custody apparently remains with the Children and Youth Services
Agency and therefore the appeal is not moot. Even if the appeal were
technically moot, we find that the current appeal falls within the exception to
the mootness doctrine in that it presents a question "capable of repetition
and apt to elude appellate review." Shandra, 819 A.2d at 90.
13 The only authority cited by the court to justify its actions is the court's
assertion that "there was substantial evidence that the children, as a result
of their parents' conduct, were `dependent' as they lacked proper care
necessary for their physical, mental and emotional health." Trial Court
Opinion, 11/12/02, at 5 (citing 42 Pa.C.S. 6302 (relating to the definition
of a dependent child under the Juvenile Act)). The trial court does not
suggest that this constitutes a finding of dependency, as the court ordered

-6-



J. A35036/03


the Children and Youth Services Agency to file petitions seeking an
adjudication of dependency in the same order as it removed the children
from the parents' custody. Trial Court Order (Custody), 10/24/02.
14 Although there is no case law directly on point relating to the sua
sponte removal of children following a PFA hearing, we are instructed by our
decisions in cases where we have reversed trial court orders in which a court
has sua sponte adjudicated children dependent or altered custody orders
without providing the necessary hearings or following the required
procedures.
15 In Shandra, we concluded that the trial court had improperly modified
a child custody order following a PFA hearing without providing the parties
an opportunity to introduce evidence relating to the best interests of the
child. See Shandra, 819 A.2d at 88. We concluded that such action denied
the father his right to due process. See id. at 91. Additionally, we found
that the court "abused its discretion when it based its custody decision
exclusively on [the father's] behavior . . . rather than the best interests of
the child" as required for a custody determination. Id. at 92.
16 In In re M.B., this Court concluded that the trial court erred in
adjudicating a child dependent where a dependency petition had not been
filed in a case relating to child abuse only. 514 A.2d 599 (Pa. Super. 1986).

-7-



J. A35036/03


We stressed that courts "cannot rule on matters not before them." Id. at
600. We continued,
Due process requires that the litigants receive notice of the
issues before the court and an opportunity to present their case
in relation to those issues. It is even more egregious an error
when the lack of notice, through variance from the pleadings, is
the court's doing. For when the issue is first stated only in the
court's resolution of it, the unsuspecting party has no
opportunity during the proceedings to voice his objections or
match his case to the altered issue.

Id. at 601. Furthermore, we stated that an adjudication of dependency
requires that, in order to have jurisdiction, the trial court must follow the
procedures of the Juvenile Act, specifically those involving Section 6321
regarding the commencement of proceedings under the Act. See id. In
that no petition had been filed alleging dependency, we concluded that the
trial court did not have jurisdiction. See id. at 602. We concluded that the
order could not stand "[o]n either the basis of due process or the basis of
jurisdiction." Id.
17 Similarly, in In re A.L., this Court concluded that the trial court erred
in sua sponte determining children to be dependent where the parties were
before the court for the sole purpose of determining custody. 779 A.2d
1172 (Pa. Super. 2001). In addition to noting the distinction between the
clear and convincing standard of proof in dependency cases and the
preponderance standard in custody cases, this court also found trial court

-8-



J. A35036/03


error where the procedures of the Juvenile Act had not been followed. See
id. at 1175-76. Specifically, petitions alleging dependency had not been
filed prior to the dependency determination as required by Section 6321
(relating to commencement of proceedings). See id. As a result of the
failure to follow the Juvenile Act's procedures, the parties were "completely
unprepared to defend or otherwise respond to allegations of dependency."
Id. at 1176. Therefore, this Court concluded that the trial court was without
jurisdiction to rule on the issue of dependency. See id.
18 As in Shandra, In re A.L. and In re M.B., Mother and Father in this
case were not presented with notice or an opportunity to present testimony
or argue against the children's placement into state custody. The parties
had entered the courtroom on October 24, 2002, assuming they would
present testimony and argument regarding Mother's PFA petition. The
parties had no reason to contemplate argument relating to the Juvenile Act.
Instead, at the conclusion of the hearing the trial court denied the PFA,
finding that the evidence was not sufficient to justify a order which would at
most deny Father access to the children, but then determined that the
evidence would justify removing the children from both parents. By acting
sua sponte, the court denied Mother and Father due process.
19 Furthermore, as in In re A.L. and In re M.B., the trial court acted
without jurisdiction and in violation of the procedures required by the

-9-



J. A35036/03


Juvenile Act. Our Legislature has instructed us to interpret and review the
Juvenile Act to effectuate certain policies as follows:
6301. Short title and purposes of chapter

* * * * *

(b) Purposes.--This chapter shall be interpreted and construed
as to effectuate the following purposes:

(1) To preserve the unity of the family whenever possible or to
provide another alternative permanent family when the unity of
the family cannot be maintained.

(1.1) To provide for the care, protection, safety and wholesome
mental and physical development of children coming within the
provisions of this chapter.

* * * * *

(3) To achieve the foregoing purposes in a family environment
whenever possible, separating the child from parents only when
necessary for his welfare, safety or health or in the interests of
public safety. . . .

42 Pa.C.S. 6301(b) (italics added). In light of these stated purposes, we
determine that removal of children from the custody of their parents is not
something which should be done lightly but rather only in cases of necessity.
20 To determine whether a court has jurisdiction under the Juvenile Act,
as we did in In re A.L. and In re M.B., we look to Section 6321 relating to
the commencement of proceedings:
6321. Commencement of proceedings

-10-



J. A35036/03



(a) General rule.--A proceeding under this chapter may be
commenced:

(1) By transfer of a case as provided in section 6322 (relating to
transfer from criminal proceedings).

(2) By the court accepting jurisdiction as provided in section
6362 (relating to disposition of resident child received from
another state) or accepting supervision of a child as provided in
section 6364 (relating to supervision under foreign order).

(2.1) By taking a child into custody in accordance with the
provisions of section 6324 (relating to taking into custody).

(3) The other cases by the filing of a petition as provided in this
chapter. The petition and all other documents in the proceeding
shall be entitled "In the interest of ...................., a minor," and
shall be captioned and docketed as provided by general rule.

42 Pa.C.S. 6321(a). In this case, the only subsection potentially
applicable is (2.1) relating to taking a child into custody in accordance with
Section 6324 which provides as follows:
6324. Taking into custody

A child may be taken into custody:

(1) Pursuant to an order of the court under this chapter. Prior to
entering a protective custody order removing a child from the
home of the parent, guardian or custodian, the court must
determine that to allow the child to remain in the home is
contrary to the welfare of the child.

(2) Pursuant to the laws of arrest.

(3) By a law enforcement officer or duly authorized officer of the
court if there are reasonable grounds to believe that the child is

-11-



J. A35036/03


suffering from illness or injury or is in imminent danger from his
surroundings, and that his removal is necessary.

(4) By a law enforcement officer or duly authorized officer of the
court if there are reasonable grounds to believe that the child
has run away from his parents, guardian, or other custodian.

(5) By a law enforcement officer or duly authorized officer of the
court if there are reasonable grounds to believe that the child
has violated conditions of his probation.

42 Pa.C.S. 6324.
21 The trial court fails even to allege jurisdiction under any of these
subsections. We conclude that the only potentially applicable subsections
are (1) and (3). Preliminarily, we must interpret these subsections in
connection with the guiding purposes of the Act which direct us to "preserve
the unity of the family whenever possible" and to separate the child from the
parents "only when necessary." 42 Pa.C.S. 6301. We conclude that the
requirements of Subsection (3) relating to illness, injury and imminent
danger have not been met in this case. The trial court dismissed the alleged
physical abuse of daughters as "minor injuries." The trial court does not
direct us to any concrete evidence that the emotional injuries were such that
removal was "necessary." Rather, the court merely stated that "it was in
best interests of the children" not to live with either parent and that there
was "substantial evidence" that the children were dependent. Trial Court
Opinion, 11/12/02, at 5. The trial court, however, failed to discuss what

-12-



J. A35036/03


constituted such "substantial evidence" or determine whether the evidence
was clear and convincing as required for a dependency determination. We
therefore cannot find justification for the children's removal under
Subsection (3).
22 Subsection (1) presents a more complicated issue, since the court's
order removing the children arguably satisfied this subsection as the October
24 order could be "an order of the court under this chapter." However, we
must interpret Subsection (1) in context of Subsections (2) (5). The other
subsections require serious events to occur prior to removing a child, such
as an arrest, a showing of imminent danger in which removal is necessary, a
runaway child and probation violations. Furthermore, the stated purposes of
the Act allow the separation of a child from its family only "when necessary
for his welfare, safety or health." 42 Pa.C.S. 6301(b)(3). Here, the court
determined merely that removal was in the "best interests" of the children.
Therefore, we conclude that Subsection (1) does not provide the court with
jurisdiction to take custody of the children.
23 We additionally note the strong public policy argument provided by
Mother and Amicus Curiae: "If judges sua sponte place children in foster
care after [PFA] hearings, it will have a chilling effect on victims of domestic
violence seeking protective orders: victims of domestic violence will not seek
court intervention and protection if they risk losing their children to the child

-13-



J. A35036/03


welfare system." Brief Amicus Curiae, at 2. We find this public policy
compelling.
24 In consideration of the lack of jurisdiction and the potentially chilling
effect of the trial court's ruling, we are compelled to find that the trial court
erred in removing the children from the custody of their parents. We
additionally conclude that the trial court failed to provide the parents with
notice of the issue by acting sua sponte and thus denied them due process.
We therefore reverse the order and remand to the trial court to determine
legal custody of the children as between the parents.
25 Order REVERSED. Case REMANDED for proceedings consistent with
this Opinion. Jurisdiction RELINQUISHED.

-14-

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