In re J.C.
- Reporters:
- , ,
- Before:
- Cavanaugh
Two issues are asserted on appeal. First, the appellant asserts that a finding of dependency cannot be made until “reasonable” efforts are made to locate an absent, noncustodial parent whose whereabouts are unknown. Second, appellant claims that the trial court erred by failing to *371grant her request to view the Susquehanna County Children and Youth Services file dealing with allegations of abuse to her children in preparation for a dependency hearing. Although we find the first argument without merit, we agree with the substance of the latter argument. We reverse.
The following facts are uncontested.1 On November 30, 1990, appellee Susquehanna County Children and Youth Services (hereafter CYS) took appellant’s five minor children into protective custody because of her alleged abuse. On December 20, 1990, the trial court heard argument on the motion of appellant to view the CYS file. The trial court, after initially granting the motion, rescinded the order after further argument. On December 21, 1990, appellant filed a motion in limine for access to the CYS file by her counsel. This motion was denied. On this same date, the Court conducted the dependency hearing. During the hearing, appellant requested the trial court to enforce a subpoena issued on December 20, 1990, requiring the CYS to produce the file. The trial court refused. Appellant also argued at the hearing that a dependency finding could not be made because the CYS must join an absent father to the proceedings. The trial court did not agree with her contention, and found based on the testimony of Forest City Assistant Police Chief Lucas and CYS caseworker Carol Newhart that there existed clear and convincing evidence that the children were dependent.
The first argument of appellant’s we address is that a finding of dependency cannot be made until “reasonable” efforts are made to locate an absent, non-custodial parent whose whereabouts are unknown. Appellant claims that this proposition can be derived from our decision in In Interest of Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988). Appellant’s argument claims that Justin S. established the principle that the non-custodial parent is a neces*372sary party to a dependency hearing, such that a court lacks jurisdiction to make a finding of dependency when an absent father is not notified of the hearing. Our reading of that case suggests otherwise. The relevant facts of that case are as follows.
In Justin S., Justin S. and Matthew S. resided with their natural mother and her paramour. After receiving a report of child abuse and investigating the allegations, the Westmoreland County Children’s Bureau initiated the case by filing a petition claiming “dependency and abuse.” Initially, the natural father, who visited the children on weekends, was suspected of abuse. However, exculpatory evidence soon thereafter eliminated the children’s natural father as a suspect. The Common Pleas court believed that the abuser was either the mother or someone who gained access to the children through their relationship to her, such as her paramour and her brother. It determined, without a finding of dependency, that the father would be awarded custody of the children.
In affirming the Common Pleas court’s order, the Superi- or Court held that a finding of dependency could not be made where the non-custodial parent “is ready, willing, and able to provide the child with proper parental care and control, especially when the lower court finds that the child was abused while under the custodial parent’s care and control.” Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1199. Although the court did not specifically elaborate on its reasoning, it did declare that “[t]he fundamental purpose of proceedings under the Juvenile Act is to preserve the unity of the family.” Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1199.
Appellant apparently wants us to extrapolate from this case the general proposition that before a finding of dependency can be made, the local CYS has to make “reasonable” attempts to find the non-custodial parent. Appellant ignores that in Justin S., the father was, as the decision notes, “ready, willing, and able” to provide the children with a proper nurturing atmosphere. Id., 375 Pa.Superior Ct. at 103, 543 A.2d at 1198. The father had close contact *373with the children, having weekend visitation rights, and the trial court specifically found that “the father could provide proper care for the children.” Id., 375 Pa.Superior Ct. at 101, 543 A.2d at 1198. Given these facts, the decision furthered the fundamental purpose of Juvenile Act proceedings: to preserve family unity. In sharp contrast are the facts of this case. The whereabouts, let alone the fitness, of the non-custodial father is unknown. He has had several different aliases, and he has had no contact with his children since they were a few weeks old.
The Juvenile Act defines a dependent child as one who “is without proper parental care or control____”
We are especially reluctant to require a local CYS to investigate the whereabouts of an absent non-custodial parent where our legislature has not provided guidance. Judicial restraint demands that we not place on a local CYS a requirement that has no explicit or implicit statutory origin. Investigating the whereabouts of an absent non-custodial *374parent can be time consuming and costly. This may be especially true because a local CYS may not have the expertise or trained personnel to track down an absent parent. We find the appellant’s first argument without merit.
The appellant’s other argument is that the lower court, by failing to follow certain statutory protections to ensure that a parent suspected of abuse receives a fair dependency hearing, violated appellant’s Due Process rights. Namely, the trial court refused to afford the appellant access to the CYS files, thus violating
We agree that the trial court erred in failing to follow
The only hint as to why the trial court denied appellant‘s request for the CYS file is found in the following exchange which occurred between Ms. Barr, appellant’s lawyer, and the Court at the dependency hearing:6
Ms. Barr: I would ask the Court to [order the CYS records released] at this time.
The Court: What records are we talking about?
Ms. Barr: The records that they are using to make these children dependent. They are discoverable at this point in time.
*376The Court: What records are we talking about, those that are protected by the Child Protective Services Act?
Ms. Barr: Those records that they are using to make the child dependent. If they are using those reports for the basis of their opinion to make the child dependent, at this point in time, they are discoverable. I don’t think there is a distinction between CPSL at this point or [sic] not. This isn’t an abuse proceeding.
The Court: Motion is denied.
(Transcript of December 27, 1990 hearing, pp. 36-37). Thus, the trial court apparently felt the Child Protection Services Law prevented the files from being released.7
A finding of dependency is adjudicated under the provisions of the Juvenile Act,
Inspection of court files and records
All files and records of the court in a proceeding under this chapter are open to inspection by:
* * * ‡ * *
(2) The parties to the proceeding and their counsel and representatives, but the persons in this category shall not be permitted to see reports revealing the names of confi*377dential sources of information contained in social reports, except at the discretion of the court.
Subpoena
Upon application of a child, parent, guardian, probation officer, district attorney, or other party to the proceedings, the court, master, or the clerk of the court shall issue, or the court or master may on its own issue, subpoenas requiring attendance and testimony of witnesses and the production of papers at any hearing under this chapter.
The appellant’s argument based on
Appellant’s argument based on
*378Apparently, the trial court felt that the Child Protective Services Law mandated that the CYS file be kept confidential despite the liberal discovery requirements given by the Juvenile Act. Simply put, it seems the trial court believed the CPSL conflicts with and supersedes the Juvenile Act. However, “[w]hen laws pertain to the same subject matter, they should be construed, where possible, as one.” Royal Indem. Co. v. Adams, 309 Pa.Super. 233, 244, 455 A.2d 135, 141 (1983); accord, Girard School District v. Pittenger, 481 Pa. 91, 100, 392 A.2d 261, 265 (1978); see also
We believe our interpretation is validated by another exception to § 2214’s confidentiality requirement. Section 2215(b) provides that:
At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed [pursuant to the CPSL’s procedures].
Thus, appellant, a subject of the report,10 would be entitled to a copy of all information in the report simply upon *379written request. Subsection (c) of § 2215 specifies that the only qualification of this entitlement is that data that might reveal the identity of a person who either reported or cooperated with the report would be kept confidential unless it was first determined that the information would not be detrimental to the safety of that person.11 Given that a subject of a report can obtain a copy of information simply by filing a written request with the local CYS,12 we submit that § 2215(a)(5)’s reference to a court order must be appropriately broadly construed to include subpoenas.13
Appellant rightly brings to our attention and appropriately distinguishes a seemingly similar case which dealt with restriction of access to a CYS file. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), a father was charged criminally with various charges relating to alleged sexual abuse of his minor daughter. He subpoenaed the CYS records which pertained to his daughter, hoping to find exculpatory evidence. The CYS refused the father access to the file, relying on the provisions of the CPSL. The trial court, after reviewing most of the CYS file, refused to order a disclosure. After the father’s subsequent jury trial and conviction, he appealed on the grounds that the failure to disclose the file violated the Confrontation Clause of the Sixth Amendment, as made applicable to the states by the Due Process Clause of the Fourteenth Amendment. After our Superior Court and Supreme Court had addressed the issue, the United States Supreme Court accepted certiorari. Although unable to agree on whether depriving the father access to the files violated the Confrontation Clause, five members of the Court agreed that the Fourteenth Amendment required some disclosure of *380records, but the requirement was limited to the trial court reviewing the records in camera and deciding whether the file contained evidence that would change the outcome of trial.
The Supreme Court decision in Pennsylvania v. Ritchie is fundamentally different than the case sub judice. In Ritchie, a criminal defendant who had no statutory right to the CYS file argued that under the United States and Pennsylvania Constitutions he should be given access to the file. Ritchie defined the arguably limited extent to which the United States Constitution required that such access be given to a criminal defendant. However, the appellant in this proceeding argues that she has a statutory right to the CYS file. As a state legislature can grant greater access to state agency files than the Constitution mandates, Ritchie is not dispositive. It is easier to receive CYS records in a dependency or delinquency hearing than in a criminal prosecution of an adult for child abuse, because the Juvenile Act makes it easier.
Although we do not decide this case on Constitutional grounds, we are concerned that the trial court ignored a provision which was meant to ensure that a dependency finding is merited. A parent’s interest in the care, custody and management of their children is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed 2d 599 (1982). The Fourteenth Amendment’s Due Process Clause militates that when a State moves to terminate the familial bonds between parent and child, it must provide the parent with fundamentally fair procedures. Id.
Counsel for the Susquehanna CYS asserts that no error occurred because the trial court’s order mandated a seemingly judicious and equitable solution to the difficult situation of alleged parental child abuse. The appellant and her boyfriend were moved to an apartment downstairs and were given liberal visitation rights (twice daily). An aunt of the children was given supervisory responsibility over the children, who remained in the apartment upstairs. The Susquehanna CYS monitored the situation, and eventually the children were given back to the appellant.
Notwithstanding the protestations of the CYS that the trial court did an outstanding job of balancing the interests of the children and the accused parents after a finding of dependency, we think the better view is that the protections of the Juvenile Act must be met before a dependency finding can be made. We have repeatedly emphasized the importance of adhering to the legislatively-mandated procedures in a dependency hearing. See, e.g., Fallaro, supra, 364 Pa.Superior Ct. at 424, 528 A.2d at 230 (“[Cjourts must adhere to the procedures developed for resolution of the various problems which arise concerning the welfare of children.”); Leslie H., supra, 329 Pa.Superior Ct. at 457, 478 A.2d at 878.
We reverse and vacate the finding of dependency.
Jurisdiction is relinquished.
Notes
. Appellee has declined to provide us with a Statement of the Case in its brief. Thus, we assume that appellee is satisfied with appellant’s statement of the case, see
. Appellant claims her ‘statutory due process’ rights afforded by the aforementioned provisions were violated by CYS and the trial court. *375Apparently, counsel believes that these provisions create a property interest in the CYS file, although it is hard to determine this from counsel’s brief, since argument on this point is rather sparse and contains no reference to relevant precedent. We remind appellant that it is not the responsibility of this court to develop the appellant’s argument.
. Such a practice is expressly violative of
. Appellee’s brief rather simply argues, without citation of case or statute, that it does not believe there was anything in the CYS file that would have helped the appellant, and if there was, the trial court committed no error by not granting access to the file. (See infra).
. Appellant has accurately complained that there exists obvious gaps in the transcript.
. Although the appellee asserts baldly that the trial court committed no error, it fails to argue that
. The CPSL, 11 Pa.S.A. §§ 2201-2224, was repealed by Act of December 19, 1990. The statute was reenacted as Part VII of the Domestic Relations Code,
. The record only indicates that appellant requested the reports at the December 21, 1990, hearing and appellee claimed not to have brought the reports to the hearing.
If a lower court does possess the CYS files, it is pertinent to note that
. The only case interpreting the statutory interrelation of the Juvenile Act and § 2215 of the Child Protection Services Act supports this conclusion. See In Re: Mary Kriner, 43 Pa.D. & C.3d 559, 561 (1985).
. The CPSL defines “[sjubject of a report” as “[a]ny child reported to the central register of child abuse and a parent, guardian or other responsible person also named in the report.” Code promulgated pursuant to the CPSL, similarly, defines it as ‘‘[a] child reported to [the central register] and his parent, guardian, other person responsible or other perpetrator named in the report.”
. This requirement bears strong resemblance to a similar provision in
. Although the CPSL does not state to whom the written request must be made,
. As our decision rests on other grounds, we do not decide whether the subpoena, itself, constituted a “written request” within the meaning of § 2215(b).