In the Interest of: N.W.-B. Apl of: J.B. ( 2021 )

[J-39A-2021 and J-39B-2021] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.W.-B., A MINOR : No. 1 EAP 2021
:
: Appeal from the Order of Superior
APPEAL OF: J.B., MOTHER : Court entered on October 8, 2020 at
: No. 1642 EDA 2019 affirming and
: reversing the Order entered on June
: 11, 2019 in the Court of Common
: Pleas, Philadelphia County, Family
: Division at No. CP-51-DP-0002108-
: 2013.
:
: ARGUED: May 19, 2021
IN THE INTEREST OF: N.W.-B., A MINOR : No. 2 EAP 2021
:
: Appeal from the Order of Superior
APPEAL OF: J.B., MOTHER : Court entered on October 8, 2020 at
: No. 1643 EDA 2019 affirming and
: reversing the Order entered on June
: 11, 2019 in the Court of Common
: Pleas, Philadelphia County, Family
: Division at No. CP-51-DP-0002387-
: 2016.
:
: ARGUED: May 19, 2021
DISSENTING OPINION
JUSTICE MUNDY DECIDED: December 23, 2021
The issue in this case is whether the trial court’s decision to grant the Philadelphia
Department of Human Services’ (DHS) Petitions to Compel Cooperation (Petitions to
Compel) was supported by probable cause. As I conclude DHS established sufficient
probable cause to support the trial court’s grant of the Petitions to Compel, I respectfully
dissent.
An order directing cooperation with an investigative home visit in the child
protective arena must satisfy the strictures of the Fourth Amendment, including the
requirement that the order must be supported by probable cause. However, as Judge
Beck observed in her concurrence in In re Petition to Compel Cooperation with Child
Abuse Investigation, 875 A.2d 365 (Pa. Super. 2005), “it would be unwise to apply the
standard notion of probable cause in criminal law to cases such as these.” In re Petition
to Compel, 875 A.2d at 380 (Beck, J. concurring). This is because “the purposes and
goals underlying the activities of child protective agencies differ significantly from those
of law enforcement generally.” Id. For example, in the criminal arena, probable cause to
search means “a fair probability that contraband or evidence of a crime will be found in a
particular place.” Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (citation
omitted). The purpose of an investigative home visit in the child protective arena,
however, is not to discover contraband or evidence of a crime, but, rather, to investigate
reports of incidents or circumstances of potential danger to children. The ultimate goal of
child protection agencies is the protection of children and not the prosecution of criminal
activity. Therefore, the probable cause needed to grant a request to order cooperation
with an investigative home visit should be that there is a fair probability that a child has
suffered from abuse or neglect and that evidence relating to those allegations may be
found in the residence. This standard protects a parent’s Fourth Amendment rights while
also permitting a child protective agency to protect the health and safety of the children
involved.
Further, a probable cause determination is based on the totality of the
circumstances and the issuing authority should make a practical, common-sense decision
whether probable cause exists, given all the circumstances. Commonwealth v. Torres,
764 A.2d 532, 537 (Pa. 2001) (citation omitted). In addition, while there is a rule-based
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requirement in the criminal arena that an issuing authority may only consider the contents
of the sworn written affidavits presented by the affiant in making his or her probable cause
determination, that requirement is not constitutionally mandated. Pa.R.Crim.P. 203(B);
Commonwealth v. Connor, 305 A.2d 341, 342 (Pa. 1973). There is no corresponding
rule-based requirement in the child protective services arena. Therefore, there is neither
a constitutional requirement nor a rule-based requirement that a trial court considering a
child protective agency’s petition to compel an investigative home visit rely solely on the
contents of the petition. As such and given the differences between the child protective
and criminal contexts, I disagree with the Majority’s holding that the trial court can only
consider testimony at an evidentiary hearing on such a petition to establish probable
cause “as long as the testimony is cabined by the allegations in the petition.” Majority
Opinion at 35. The trial court should be permitted to consider all the information before it
in coming to its probable cause determination, including the contents of the petition, the
evidence produced at any hearing on the petition, and the trial court’s knowledge of the
family’s prior involvement with child protective services.
In this case, DHS filed the two Petitions to Compel (one for each child) at issue on
May 31, 2019. In its petitions, DHS asserted, inter alia, that on May 22, 2019 it received
a General Protective Services (GPS) report regarding the family. It summarized the
contents of that report as follows:
j. On May 22, 2019 DHS received a GPS report alleging that
three weeks earlier, the family had been observed sleeping
outside of a Philadelphia Housing Authority (PHA) office
located at 2103 Ridge Avenue, that on May 21, 2019 [Mother]
had been observed outside of the PHA office from 12:00 P.M.
until 8:00 P.M. with one of the children in her care, that Project
Home dispatched an outreach worker to assess the family,
that [Mother] stated that she was not homeless and that her
previous residence had burned down; and that it was
unknown if [Mother] was feeding the children [sic] she stood
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 3
outside of the PHA office for extended periods of time. The
report is pending determination.
Petitions to Compel, 5/31/2019 ¶ j. According to the petitions, that same day DHS located
the family’s home address through a Department of Public Welfare search and went to
the residence:
l. On May 22, 2019, DHS visited the family’s home. When
DHS arrived at the home, only [Father] was present, and he
refused to allow DHS to enter the home. [Father] contacted
[Mother] via telephone and allowed DHS to speak with her.
[Mother] stated that she was engaging in a protest outside of
the PHA office; that she did not have the children with her
while she was protesting; and that she would not permit DHS
to enter the home. [Mother] subsequently returned to the
home with [Y.W.-D.] and [N.W.-B.] in her care; DHS observed
[Y.W.-B.] and [N.W.-B] appeared to be upset before [Mother]
ushered them into the home. [Mother] refused to allow DHS
to enter the home or to assess [Y.W.-B.] and [N.W.-B.]. and
that [sic] stated that she would not comply with DHS absent a
court order. [Mother] further stated that the children had not
been with her when she protested outside of the PHA offices;
and that the children were fine and were not in need of
assessments or services. [Mother] exhibited verbally
aggressive behavior toward DHS and filmed the interaction
outside of the home with her telephone. DHS did not enter
the home, but observed from the outside of the home that one
of the home’s windows was boarded up.
m. On May 22, 2019, DHS returned to family’s home with
officers from the Philadelphia Police Department (PPD).
[Mother] and [Father] continued to exhibit aggressive behavior
and refused to allow DHS to enter the home. The PPD
officers suggested that DHS obtain a court order to access the
home.
Id. at ¶¶ l-m. At the hearing on the petitions, DHS investigator Tamisha Richardson
testified that she was the DHS worker that went out to the family’s home that day and
contradicted the assertion in the petition that she observed Mother usher the children into
the home, testifying that she did not observe Mother and the children enter the home.
N.T., 6/11/19 at 8-9 (emphasis added).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 4
The petitions also set out the family’s past involvement with DHS, which included
GPS reports from September and October 2013 alleging, inter alia, deplorable home
conditions, including holes in the walls, a flea infestation, lack of interior walls, internal
structure of the home being exposed, a lack of water and heat service, and that the home
appeared to be structurally unsound. Petitions to Compel at ¶ c. These reports were
determined to be valid and led to the older child, Y.W.-B., being adjudicated dependent
and placed in DHS custody. Id. at ¶¶ c, e. Y.W.-B. remained in foster care until July 20,
2015 when custody was returned to Mother and Father. Id. at ¶ f. The family continued
to receive services through DHS until November 10, 2015 when DHS’s supervision ended
and Y.W.-B.’s dependency case was discharged. Id. at ¶ h-i. N.W.-B. was not born until
January 23, 2015. Id. at ¶ g. In addition to the family’s prior involvement with DHS
referenced in the Petitions to Compel, at the hearing on the petitions the trial court noted
it had prior involvement with the family.
At the hearing on DHS’s petitions on June 11, 2019, Richardson was the sole
witness. She testified that DHS received a GPS report on May 22, 2019 alleging
homelessness and inadequate basic care, naming the children as the victims and the
parents as the alleged perpetrators. N.T. 6/11/19, 5. She further testified that she went
to parents’ house and the parents made it clear to her that she would not be permitted
inside the home. Id. In response to questioning from the court, Richardson testified that
she needed to view the inside of the home to make sure the home was appropriate, the
utilities were working, there was food in the home, beds for the children, and so forth. Id.
at 6.
Based on the information before it, the trial court determined that probable cause
existed to order parents to cooperate with an assessment of the home. In support of its
determination, the trial court stated:
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 5
The Motion to Compel and the hearing confirmed that one of
the main factors of the DHS investigation is the matter of
homelessness and if the alleged address of the family was
suitable for Children. The home assessment by DHS would
be able to determine if the claims for both homelessness and
inadequate care of Children have merit.
Trial Court Opinion, 9/9/19 at 7. In determining that probable cause existed the trial court
also found Richardson’s testimony credible. Id. at 8.
I disagree with the Majority’s contention that since DHS located the family’s home
the allegations of homelessness were moot and needed no further investigation. Majority
Opinion at 37-38. Even though Richardson received an address where the family
purportedly resided and talked to the family outside that residence, that does not mean
the family resided there or that the residence was suitable for children. As Richardson
testified, she needed to observe the inside of the house to determine if the home was
appropriate for the children. N.T. at 6. The allegations of homelessness were also not
moot by the unsupported assertion in the petitions that DHS observed Mother usher the
children into the home. First, Richardson testified that she was the DHS worker who went
to the residence and she did not observe Mother and the children enter the residence.
N.T. at 8-9. The conflict between the petitions and Richardson’s testimony was a factual
question for the trial court to answer. Further, even if Richardson did observe Mother
usher the children into the residence, merely entering a home is not proof that one resides
there. I also disagree with the Majority’s assertion that Richardson’s testimony confirmed
that the family was not homeless. Majority Opinion at 38. This assertion is directly
contradicted by Richardson’s own testimony that she had “no idea” if the family was living
at the address because she was not permitted access into the home. N.T. at 10.
As the allegations of homelessness remained an issue, along with the allegations
of inadequate basic care, there was a clear connection between the allegations in the
petition and the requested investigative home visit. Only by observing the inside of the
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 6
residence could DHS determine if the family resided there and if it was an appropriate
place for the children to live.
In addition, I also disagree with the Majority’s determination that the information
regarding the family’s prior involvement with DHS was stale because the family’s prior
experiences with DHS ended in 2015, four years prior to the Petitions to Compel, and
there was no evidence of any reoccurrence of the prior issues. Majority Opinion at 43.
The age of information is a factor in determining probable cause. Commonwealth v. Leed,
186 A.3d 405, 413 (Pa. 2018). “However, staleness is not determined by age alone, as
this would be inconsistent with a totality of the circumstances analysis.” Id. (citing
Commonwealth v. Hoppert, 39 A.3d 358. 363 (Pa. Super. 2012)). The remoteness of
information can affect the weight a court chooses it give the information. Courts must
also consider the nature of the allegations and the type of evidence. Hoppert, 39 A.3d at
363. The Petitions to Compel indicated that in 2013 DHS received GPS reports
regarding the family, asserting, inter alia, deplorable home conditions, including holes in
the walls, flea infestation, lack of interior walls, internal structure of the home being
exposed, a lack of water and heat services, and that the home appeared structurally
unsound. Petitions to Compel at ¶ c. Those reports were determined to be valid. Id. In
addition, at the hearing on the current Petitions to Compel the trial judge referenced his
prior involvement with the family. N.T. at 12, 18. Richardson testified that DHS received
a GPS report alleging homelessness and inadequate basic care on May 22, 2019. Id. at
5. The family’s prior involvement with DHS involved issues regarding the adequacy of
the family’s housing. The housing related allegations at issue in the Petitions to Compel
were similar to the housing related problems at issue in the family’s prior involvement with
DHS. Those previous reports were determined to be valid and led to a dependency case.
Therefore, the family’s prior involvement with DHS was relevant to the allegations in the
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 7
Petitions to Compel and not stale, as the allegations were of a similar nature. The fact
that DHS received the previous GPS reports over five years prior to receiving the current
one, and Y.W.-B.’s dependency case was closed approximately four years prior, goes to
the weight the trial court should give the information. The trial court, however, should not
have been required to ignore the family’s prior involvement in considering the totality of
the circumstances of the case. Rather, the trial court should have been permitted to
consider the family’s prior history as part of the totality of the circumstances in coming to
its probable cause determination.
Further, due to the nature and purpose of child protective investigations, as
discussed supra, “[w]hat an agency knows and how it acquired its knowledge should not
be subject to the same restrictions facing police seeking to secure a search warrant.” In
re Motion to Compel, 875 A.2d at 380 (Beck, J. concurring). This is especially true in
regards to anonymous sources. Anonymous sources in the child protective arena differ
significantly from confidential informants in the criminal arena. Anonymous sources in
child protective investigations are often family members or those close to the family who
are in the best position to observe a child’s circumstances and whether the child is in
need of services. Due to the relationship with the care giver, these sources would be less
likely to report abuse or neglect if they were not given anonymity. Confidential informants
in criminal cases, on the other hand, are often involved in criminal activity themselves and
provide information to law enforcement authorities in an attempt to extricate themselves
from legal trouble. Information given in self-interest should be looked upon more
cautiously than information given by an individual concerned about the health and safety
of a child. Therefore, in the child protective arena courts should be able to consider
anonymous reports as part of the totality of circumstances analysis in coming to a
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 8
probable cause determination without the same corroboration requirements that are
applicable to criminal informants.
The Majority also criticizes DHS’s failure to call the anonymous source to testify at
the hearing on the Petitions to Compel based, at least in part, on its incorrect
determination that
DHS had no obligation to keep the identity of the source of the
GPS report confidential or to shield him or her from testifying
at the evidentiary hearing. The trial court mistakenly believed
that DHS was legally required to keep the name of the
anonymous source confidential and, accordingly, citing 23
Pa.C.S. § 6340(c), sustained DHS’s objection when Mother’s
counsel asked Richardson to identify the anonymous source
of the GPS report. Section 6340(c) of the CPSL, however,
only requires DHS to keep confidential the name of an
anonymous reporter of a CPS report, I,e,, a report alleging
child abuse. No similar provision in the CPSL protects the
source of a GPS report, i.e., a report of, inter alia, child
neglect,
Majority Opinion at 46-47 (emphasis in original) (internal citations omitted). Section
6340(c), entitled “Protecting identity,” provides that, except under specific limited
circumstances not at issue here, the release of information by a child protective services
agency “that would identify the person who made a report of suspected child abuse or
who cooperated in a subsequent investigation is prohibited.” 23 Pa.C.S. § 6340(c). The
CPSL also prohibits the release of the same information as to an individual who makes a
GPS report. Section 6375(o) of the CPSL, entitled “Availability of information,” states
“[i]nformation related to reports of a child in need of general protective services shall be
available to individuals and entities to the extent they are authorized to receive
information under section 6340 (relating to release of information in confidential
reports).” 23 Pa.C.S. § 6375(o) (emphasis added). Since Section 6340(c) prohibits the
disclosure of information that would identify a person who made a report of child abuse,
Section 6375(o) likewise prohibits the disclosure of information that would identify an
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 9
individual who made a GPS report, like the anonymous source at issue here. The trial
court, therefore, correctly sustained DHS’s objection to Mother’s counsel’s question
asking Richardson to identify the anonymous source.
Even if DHS was not statutorily required to keep the anonymous source’s identity
confidential, which it was, it was under no obligation to call the source to testify at the
hearing on the petitions and provide Mother an opportunity to cross-examine him or her,
as the Majority implies. Majority Opinion at 47. There is no legal requirement,
constitutional, statutory, or rule-based, that the subject of a request for an order to compel
cooperation with an investigative home visit must be permitted to cross examine a source
prior to a trial court making a probable cause determination. There is no requirement that
the court hold a hearing on the petition at all.
When reviewing a trial court’s probable cause finding, it is a reviewing court’s duty
to ensure there was “a substantial basis for concluding probable cause existed. In so
doing, the reviewing court must accord deference to the issuing authority’s probable
cause determination, and must view the information offered to establish probable cause
in a common-sense, non-technical manner.” Jones, 988 A.2d at 655 (quoting
Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa. 2001)). In so doing, “a
reviewing court [is] not to conduct a de novo review of the issuing authority’s probable
cause determination, but [is] simply to determine whether or not there is substantial
evidence in the record supporting” the finding of probable cause. Id. (quoting Torres, 764
A.2d at 537-38, 540). In order to have met the probable cause standard in this case,
there had to be a fair probability that the children had suffered from abuse or neglect and
that evidence relating to those allegations may be found in the residence. The allegations
set forth in the Petitions to Compel combined with Richardson’s testimony and the trial
court’s knowledge of the family’s prior involvement with DHS support the trial court’s
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 10
determination that DHS satisfied that standard here. Therefore, I respectfully dissent as
I would affirm the Superior Court’s holding.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 11