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IN THE INTEREST OF: K.P., A MINOR

APPEAL OF: M.P. : : : : : : : : : IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 987 MDA 2018 Appeal from the Order Entered May 18, 2018 In the Court of Common Pleas of Northumberland County Juvenile Division at No: CP

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- DP

- 0000192

- 2006
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY STABILE, J. : FILED NOVEMBER 27, 2018
M.P. ( “ Mother ” ) appeals from th e order entered May 18, 2018, which
adjudicated dependent her minor daughter, K.P. (“Child”) , born in January

2003. 1 After review, w e vacate and remand for further proceedings.
We summarize the relevant factual and procedural history of this matter

as follows. Northumberland County Children and Youth Services ( “ CYS ” ) first

became involved with Child several months after her birth

. She has been in

and out of foster care numerous times and adjudicated dependent on two prior

occasions

. Most recently, CYS obtained protective custody of Child on May 8,

2018. CYS filed a n application for shelter care later that day, raising concerns
regarding Child’s attempts to skip school and run away from home. CYS
further averred that Child attempted to commit suicide in April 2018 and that

Father w as now saying that he could not manage her behaviors. CYS averred

_________________ __________ ______ ____ _______

1 Child’s father, W.P., Jr. (“Father”), did not appeal the order.J

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that Mother was not an appropriate caregiver for Child because of her past
failure to comply with services. 2 CYS filed an amended shelter care application
on May 9, 2018, which the trial c ourt granted on May 11, 2018. CYS filed a dependency petition on the same day, containing averments substantively
identical to those in the shelter care applications. CYS filed an amended
dependency petition on May 15, 2018.

The trial court held a hearing on May 18, 2018, at which Mother failed
to appear. However, Mother’s counsel, Marc Lieberman, Esquire, was present.
The hearing began with testimony from CYS caseworker, Melissa Eisenhou r, 3
concerning CYS’s efforts to serve Mother with notice

. Ms. Eisenhou r testified
that she was in contact with Mother the day before the hearing via Facebook
Messenger , because Mother does not have a phone. N.T., 5/18/18, at 4. She
testified that she sent Mother a message reminding her that there would be a

h earing the next day. Mother responded with “a lengthy message that . . .
she is looking for a ride but couldn’t find one.” Id. at 5. Ms. Eisenhour
reported that she offered to transport Mother to the hearing but that Mother

“ said that she was concerned because she had already told her father and her
boyfriend that she was going to help with something today. He was in ill

health. So I wasn’t sure what time I could get her back, so she wasn’t willing

to come in.” Id.

_________________ __________ ______ ____ _______

2 Child was living with Father at the time. Mother lived separately.

3 In the transcript, Ms. Eisenhour’s name is spelled “Eisenhower.” It is spelled “Eisenhour” in court orders and in a certificate of service that she signed.J

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On cross

- examination by Attorney Lieberman , Ms. Eisenhour testified
that she did not know whether Mother received notice of the hearing through

the mail. She stated, “I didn’t send it to her certified mail. I do not know if
the paralegals did.” Id. at 6. Following this testimony, Atto rney Lieberman
objected that he did not believe CYS served Mother properly and requested a

continuance. Id. at 6

- 9 , 13. The court disagreed , concluding that notifying

Mother of the hearing via Facebook Messenger was sufficient, and denied
Attorney Lieber man’s request. Id. at 7, 15.
At the conclusion of the hearing, the trial court announced its intention
to adjudicate Child dependent. The court entered an order of adjudication and
disposition that same day. Mother timely filed a not ice of appeal on June 13,
2018, along with a concise statement of errors complained of on appeal.
Despite the fact that Mother had already filed a concise statement with her
notice of appeal, the court entered an order on June 19 , 2018, directing

counsel to file a concise statement within twenty

- one days. Mother timely
complied by filing a n additional concise statement on July 6, 2018.
Mother now raises the following issues for our review.

I. Whether the trial court erred by eliminating the mother’s rig ht to legal notice of the adjudication hearing and suspending the mother’s parental rights, without the mother being permitted due process of law?
II. Whether the trial court erred in determining that the best interests of the child would be served by den ying Mother minimal due process?J

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III. Whether the trial court erred in accepting that some form of Facebook Twittering [ sic ] or texting constituted proper mode of service of process in this case?
Mother’s B rief at 12 (unnecessary capitalization and trial court answers
omitted).
Mother presents three interrelated claims for our review , which we will
address together

. Mother’s claims present questions of law requiring us to
interpret the notice requirements of the Juvenile Act and our Rules of Juvenile

Cou rt Procedure. Thus, our standard of review is de novo and our scope of
review is plenary. In the Interest of J.M. , 166 A.3d 408, 416 (Pa. Super.
2017) , reargument denied (Aug. 3, 2017).

Mother argues that CYS did not provide her with sufficient notice of the
hearing in violation of her right to due process and contrary to Child’s best

interests. Mother’s Brief at 14

- 26. She stresses that CYS attempted to n otify
her of the hearing by sending her a message on Facebook only

. Id. at 18.

Mother complains t hat CYS did not enter a copy of the message into evidence

and that it is not clear what CYS said or whether they were really talking to

her at all. Id. at 19. She directs our attention to the provisions of the Rules

of Juvenile Court Procedure relating t o notice of dependency proceedings. Id.

at 26

- 27.

The Rules of Juvenile Court Procedure set forth the requirements for
service of a dependency petition as follows.

Rule 13 3 1. Service of Petition
A. Copy. Upon the filing of a petition, a copy of the petition shall be served pro mptly upon the child, the child’s guardian, the child’sJ

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attorney, the guardian’ s attorney, the attorney for the county agency, and the county agency.

B. Method of Service.
(1) Chil d and guardian . The petition shall be served upon the child and all of the child’ s guardians by:
(a) certified mail, return receipt requested and first

class mail; or
(b) delivery in

- person. (2) Attorneys and the county agency . The petition shall be ser ved upon the attorneys and county agency by:
(a) first

- class mail;
(b) delivery in

- person; or (c) another agreed upon alternative method.

C. Proof of service. An affidavit of service shall be filed prior to the adjudicatory hearing.

Pa.R.J.C.P. 1331. 4
With respect to dependency hearings, the Juvenile Act requir es that the

trial court issue “ a summons to the parents

. . . requiring them to appear
before the court at the time fixed to answer the allegations of the petition. ”

_________________ __________ ______ ____ _______

4 The Rules define guardian as “ any parent, custodian, or other person who has legal custody of a child, or person design ated by the court to be a temporary guardian for purposes of a proceeding. ” Pa.R.J.C.P. 1120. Importantly, the comment to Rule 1331 provides that a child’s parent must receive a copy of the petition even if he or she “ is not the child’ s custodial guardian[.] ” Pa.R.J.C.P. 1331 , Comment

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42 Pa.C.S.A. § 6335 (a). Sim ilarly, t he Rules require that the court must issue
a summons to all parties. 5

Rule 13 60 . Adjudicatory Summons

A. Summons. The court shall issue a summons compelling all parties to appear for the adjudicatory hearing.
B. Order appearance. The court may order the person having the physical custody or control of the child to bring the child to the hearing.
C. Requirements. The summons shall:
(1) be in writing;
(2) set forth the date, time, and place of the adjudicatory hearing;
(3) instr uct the child and the guardian about their righ ts to counsel, and if the child’ s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel;
(4) give a warning stating that the failure to appear for the he aring may result in arrest; and
(5) include a copy of the petition unless the petition has been previously served.

Pa.R.J.C.P. 1360.
The Rules set forth specific requirements for service of the summons as

follows.

_________________ __________ ______ ____ _______

5 Indisputably, Mother is a party to this dependency proceeding. See In re L.C. , II , 900 A.2d 378, 381 (Pa. Super. 2006) (“ Although the Juvenile Act does not define ‘party,’ case law from this Court has conferred the status of party to a dependency proceeding on . . . the parents of the juvenile whose dependency status is at issue[.] ”)

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Rule 13 63

. Service of Summons

A. Metho d of Service. The summons shall be served:
(1) in

- person; or (2) by certified mail, return receipt and first

- class mail.

B. Time of Service.
(1) Child in custody . If the child is in protective custody, the summons shall be served no less than seven days prior to the adjudicatory hearing.
(2) Child not in custody . If the child is not in protective custody, the summons shall be served no less than fourteen days prior to the adjudicatory hearing.

C. Proof of service. Affidavit of service shall be filed prior to the adjudicatory hearing.

D. Efforts Made to Serve. In the absence of an affidavit of service under paragraph (C), the serving party shall advise the court of what efforts were made to notify a person. The co urt may proceed to a hearing upon a showing of reasonable efforts to locate and notify all persons pursuant to Rule 1360.

Pa.R.J.C.P. 1363.
Aside from the provisions requiring that the trial court issue a summons
to all parties , the Rules include an addi tional provision mandating notice of
adjudicatory hearings for all parents.

Rule 1361. Adjudicatory Notice The court shall give notice of the adjudicatory hearing to:
(1) the attorney for the county agency;J

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- (2) the child’ s attorney;
(3) the guardian’ s attorney;
(4) the parents, child’ s foster parent, preadoptive parent, or relative providing care for the child;
(5) the county agency;
(6) the court appointed special advocate, if assigned; and
(7) any other persons as directed by the court.

Pa.R.J. C.P. 1361.
Significantly, the May 18, 2018 order is an order of adjudication and
disposition. Thus, the May 18, 2018 hearing was both an adjudicatory hearing

and a dispositional hearing. The Rules impose additional requirements that
parents receive not ice of dispositional hearings, as follows.

Rule 1501. Dispositional Notice
The court or its designee shall give notice of the dispositional hearing to:
(1) all parties;
(2) the attorney for the county agency;
(3) the child’ s attorney
(4) the guardian’ s attorney;
(5) the parents, child’ s foster parent, preadoptive parent, or relative providing care for the child;
(6) the court appointed special advocate, if assigned;
(7) the educational decision maker, if applicable; andJ

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- (8) any other persons as dir ected by the court.

Pa.R.J.C.P. 1501.

After careful review of these provisions , it is clear that the trial court

failed to ensure tha t Mother received adequate notice of the adjudicatory and
disposition al hearing in the instant matter

. The record contains a summons ,
notice of hearing , and scheduling order, but neither those documents, nor the
trial court docket, indicates that Mother was served prior to the proceedings.

Ms. Eisenhour testified that she did not mail the documents to Moth er and she

did not know if anyone else did either. Notably, the record contains a
certificate of service indicating that Ms. Eisenhour served Mother with the
documents, along with the dependency petition and amended dependency
petition, on May 18, 201 8, t he same day as the hearing. Because t he
transcript of the hearing indica tes that it began at 10:11 a.m., Mother may
not have been served until after the hearing was already over.

While Ms. Eisenhour testified that she notified Mother of the hearing via
Facebook Messenger the day before the hearing , notice via Facebook does not
comply with our Rules of Juvenile Court Procedure. Rule 1331 required that
Mother receive a copy of the dependency petition through either certified and

first

- class mail or in

- per son delivery. Moreover, Rules 1360 and 1363 required
that the court issue a summons to Mother, again through either certified and

first

- class mail or in

- person delivery. Rule 1363 permits trial courts to proceed
with a hearing even if a county agency fai ls to provide an affidavit of service,J

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so long as the agency makes a showing of reasonable efforts to locate and
notify all persons. In the instant matter , i t is clear that CYS did not make

reasonable efforts to locate and serve Mother

. CYS was well awar e of Mother’ s address, as it appeared on both the shelter care applica tions and dependency
petitions. Thus , n othing prevented CYS from complying with the Rules by
mailing Mother the relevant documents or providing them to her in person.
Even assuming that Attorney Lieberman received notice of the hearing,
providing notice to Mother’s attorney is not the same thing as providing notice

to Mother. Rules 1331, 1361 , and 1501 require that both the parent and the
parent’s attorney receive not ice separately. T he plain language of Rule 1331
requires a copy of the dependency petition be sent to “ the child’ s guardian”

and “ the guardian’ s attorney[.] ” Pa.R.J.C.P. 1331. Rule 1361 requires that

notice be sent to “the guardian’s attorney” and “the parents[.]” Pa.R.J.C.P.

1361

. Moreover , Rule 1501 requires that notice be sent to “all parties,” “the
guardian’s attorney,” and “the parents[.] ” Pa.R.J.C.P. 1501. The Comment

to Rule 1363 provides further clarification of this issue, explaining , “ [p] ursuant
to Rule 1360, all parties are to be served a summons. Pursuant to Rule 1361,
the attorneys, the parents, child’s foster parent, preadoptive parent, andJ

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relative providing care for the child are to receive notice. ” Pa.R.J.C.P. 1363,

Comment. 6

Ba sed on the foregoing, we conclude that the trial court failed to ensure

that Mother received notice of the adjudicatory and disposition al hearing in
compliance with the Juvenile Act and our Rules of Juvenile Court Procedure.

See In the Interest of K.S. , 1 59 A.3d 535 (Pa. 2017) ( holding that the trial
court abused its discretion by conducting an adjudicatory hearing despite

CYS’s failure to comply strictly with the notice requirements of the Juvenile

Act and the Rules of Juvenile Court Procedure )

. We therefore vacate the May
18, 2018 order and remand for the court to hold a new adjudicatory and
dispositional hearing as soon as possible

. Prior to the hearing, reasonable
efforts must be made to provide Mother with notice in compliance with the

author ity set forth in this opinion

.

_________________ __________ ______ ____ _______

6 Generally, the Rules of Juvenile Court Procedure do not require that “orders and court notices” be sent to a parent individually if he or he has counsel. See Pa.R.J.C.P. 1167(B)(1) (“A copy of any order or court notice shall b e served promptly on each party’ s attorney, and the party, if unrepresented.”)

. However, when interpreting conflicting provisions in the Rules, it is settled law that a specific provision must control over a more general provision

. See 1 Pa.C.S.A. § 1933 (“Whenever a general provision in a statute shall be in conflict with a special provision

. . . the special provisions shall prevail[.]”); Pa.R .J.C.P. 1102 (directing that the Rule s of Juvenile Court Procedure be construed in consonance with the rules of statutory construction to the extent practicable). We also observe that the comment to Rule 1167 defines “court notices” to include only “c ommunications that ordinarily are issued by a judge or the court administrator concerning, for example, calendaring or scheduling, including proceedings requiring the party’s presence.” Pa.R.J.C.P. 1167, Comment.J

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Order vacated. Case remanded for further proceedings consistent with

this opinion

. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/27/2018