In the Int. of: K.D., A Minor Appeal of: S.D. ( 2015 )

J-A10017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.D., MOTHER
No. 1912 MDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-DP-329-2014
IN THE INTEREST OF: D.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF S.D., NATURAL MOTHER
No. 1913 MDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-DP-0000328-2014
IN THE INTEREST OF: R.A-H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF S.D., MOTHER
No. 1914 MDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-DP-327-2014
J-A10017-15
IN THE INTEREST OF: I.A-H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.D., MOTHER
No. 1915 MDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-DP-326-2014
IN THE INTEREST OF: S.K., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.D., NATURAL MOTHER
No. 1916 MDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-DP-0000325-2014
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 23, 2015
Appellant, S.D. (Mother), appeals from the October 17, 2014 orders
adjudicating as dependent her five minor children, K.D., a male, born in
September 2011; D.D., a male, born in November 2009; R.A.-H., a male,
born in September 2006; I.A.-H., a female, born in February 2004; and
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S.K., a female, born in October 1999 (collectively, the Children). 1 After
careful review, we affirm.
This appeal arises from dependency petitions filed by the Berks County
Children and Youth Services (BCCYS) on August 20, 2014, alleging that the
Children were without the proper care and control necessary for their
physical, mental or emotional health. At that time, the Children resided with
Mother and A.D., her husband,2 in the home of the Children’s maternal
grandparents. A.D. is the biological father of Mother’s two youngest
children, D.D. and K.D.
The trial court held an adjudicatory hearing on October 15, 2014,
during which BCCYS presented testimony of its caseworker, Susan Bamford,
and Joseph Snell, a criminal investigator for the City of Reading Police
Department. In addition, BCCYS presented Mother as a witness, and she
was cross-examined by her counsel, counsel for A.D., counsel for the other
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1
We note that during the pendency of this appeal Mother has filed a
subsequent notice of appeal from an order entered on March 18, 2015
involving R.A.-H. and I.A.-H. These appeals have been consolidated and are
docketed at 608 MDA 2015 and 607 MDA 2015. As the outcome of those
appeals has no impact on the instant appeal they will be addressed by a
separate panel.
2
The record does not reveal when Mother married A.D. However, Mother
testified at the subject proceedings that she has been involved with A.D. for
approximately four and one-half years. N.T., 10/15/14, at 6.
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biological fathers of the Children,3 and the Guardian Ad Litem (GAL). Mother
presented the testimony of D.K., the Children’s maternal grandmother. A.D.
was present for the hearing, but he did not testify or present any evidence.
The testimonial and documentary evidence revealed as follows. On
July 24, 2014, a criminal complaint was filed against A.D. alleging the crimes
of contact/communication with a minor involving sexual abuse, child
pornography, and corruption of minors. N.T., 10/15/14, at Exhibit 8. The
incidents leading to the criminal charges involved, in part, A.D.
inappropriately communicating via Facebook with his stepdaughter, I.A.-H.,
then age ten, during which he sent a picture of an erect penis to her, and
attempted to solicit her by offering her $50.00 in return for her sending him
naked photos of herself.4 N.T., 10/15/14, at 55-56. As a result of a search
warrant, A.D.’s telephone was seized, on which Detective Snell testified was
found “a lot of pornography,” an undisclosed amount of which included child
pornography. Id. at 56.
The evidence further reveals that A.D. has a sexual offense history as
a juvenile. In 1995, when he was approximately twelve years old, A.D.
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3
R.H., the father of I.A.-H. and R.A.H., appeared at the hearing and was
represented by counsel. In addition, E.L., the father of one of the children,
which we presume is S.K., did not appear at the hearing, but was also
represented by counsel.
4
The record includes an affidavit of probable cause wherein it is alleged that
A.D. asked I.A.-H. via Facebook to send him naked pictures of her breasts
and vagina. N.T., 12/12/14, at Exhibit 9.
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began outpatient juvenile sexual offender treatment due to his conviction for
sexually assaulting his sister and allegations that he had sexually assaulted
two neighbor children. N.T., 10/15/14, at Exhibit 1. In 1996, Reading
Specialists recommended that A.D. be placed in a residential treatment
facility. Id. A.D. was placed at South Mountain/Cornell Abraxas, and was
released in 2003, when he was twenty years old. Id.
On October 17, 2014, the trial court adjudicated the Children
dependent. The court explained its rationale as follows.
The [C]hildren’s physical custody remained with
Mother and the [trial c]ourt ordered that Mother and
A.D. participate in enumerated services. Specifically,
the [trial c]ourt ordered that Mother cooperate with
a non-offending parent evaluation and any
recommended treatment and that A.D. cooperate
with a sexual offender evaluation and recommended
treatment. A.D. was also ordered to not have any
contact with the minor children until therapeutic
recommendation.
Trial Court Opinion, 12/12/14, at 1-2.
On November 13, 2014, Mother filed notices of appeal. On November
14, 2014, Mother filed concise statements of errors complained of on
appeal.5 This Court consolidated Mother’s appeals sua sponte on December
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5
Although Mother did not file the concise statement simultaneously with the
notice of appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(a)(2)(i), we conclude that her procedural misstep was harmless, as it
was not prejudicial to any of the parties and did not impede the trial court’s
ability to issue a thorough opinion. See In re K.T.E.L, 983 A.2d 745, 747
(Pa. Super. 2009) (holding that the failure to file a concise statement of
(Footnote Continued Next Page)
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3, 2014.6 On December 12, 2014, the trial court issued an opinion pursuant
to Rule 1925(a).
On appeal, Mother raises the following questions for our review.
1. Did the trial court err in finding the children
dependent?
2. Did the trial court err in failing to dismiss this
action because the petition was not promptly served
as required?
Mother’s Brief at 4.
Our Supreme Court set forth our standard of review for dependency
cases as follows.
[T]he standard of review in dependency cases
requires an appellate court to accept the 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. Accordingly,
we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
To adjudicate a child dependent, a trial court must
determine, by clear and convincing evidence, that
the child:
is without proper parental care or control,
subsistence, education as required by law, or
_______________________
(Footnote Continued)
errors complained of on appeal with the notice of appeal will result in a
defective notice of appeal, to be disposed of on a case-by-case basis)
(emphasis in original).
6
Neither A.D. nor any of the Children’s biological fathers filed notices of
appeal, and none are a party to this appeal.
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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. “Clear and convincing”
evidence has been defined as testimony that is “so
clear, direct, weighty, and convincing as to enable
the trier of facts to come to a clear conviction,
without hesitancy, of the truth of the precise facts in
issue.” In re C.R.S., 696 A.2d 840, 843 (Pa. Super.
1997) (citation omitted).
In accordance with the overarching purpose of the
Juvenile Act “[t]o preserve the unity of the family
wherever possible," see 42 Pa.C.S.A. § 6301(b)(1),
“a child will only be declared dependent when he is
presently without proper parental care and when
such care is not immediately available.” In re R.T.,
405 Pa. Super. 156, 592 A.2d 55, 57 (Pa. Super.
1991) (citation omitted). This Court has defined
“proper parental care” as “that care which (1) is
geared to the particularized needs of the child and
(2) at a minimum, is likely to prevent serious injury
to the child.” In re C.R.S., supra at 845 (citation
omitted).
In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).
In her first issue, Mother argues that the evidence is insufficient to
adjudicate the Children dependent pursuant to 42 Pa.C.S.A. § 6302.
Specifically, Mother asserts that the Children are safe in her care.
The trial court reasoned as follows in its Rule 1925(a) opinion.
A.D., natural father of two of the minor children and
Mother’s husband, has a history of sexually
inappropriate contact with minors. Aware of that
history, Mother allowed A.D. to have contact with her
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children, and one of the children, I.A.-H., was
sexually targeted by A.D. Specifically, Mother was
aware of Father’s sexual offending history as early as
2010. Earlier this year, A.D. admitted to law
enforcement that he had sexual conversations with
Mother’s minor child, I.A.-H. Mother herself spoke
with law enforcement about Father’s admissions.
Despite this knowledge, Mother has asserted that
she does not believe A.D. poses a risk to her children
and has requested supervised visits between A.D.
and his minor children. It is clear to th[e trial c]ourt
that Mother is unable to appreciate the seriousness
of the risk that A.D. poses to I.A.-H and the other
minor children.
Trial Court Opinion, 12/12/14, at 3-4 (citations to record omitted). The
testimonial evidence supports the court’s findings.
Mother testified that she first became aware of A.D.’s sexual history in
March 2010. N.T., 10/15/14, at 31-32. Mother testified that she was
pregnant with A.D.’s child at the time.7 Id. She explained as follows on
cross-examination.
Q. And where did you learn [of A.D.’s history] from?
Information from [BC]CYS?
A. Yes, [BC]CYS came out to the house that I was
living at, at the time.
Q. So [A.D.] had never discussed his past with you;
is that correct?
A. No, not at that point.
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7
Mother failed to clarify which child she was pregnant with; however, in
March 2010, Mother was pregnant with K.D., her second child with A.D.
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Q. And when you learned of his past, did you ask
him: Go into more detail. Tell me everything that
happened. What treatment did you get[?] All of
that information.
A. He was pretty straight forward and told me that
he had [an] indecent assault charge; that he was in
South – he went to South Mountain; that he had
finished whatever was required of him at the time
and –
Q. [ ] But didn’t he tell you that he had perpetrated
on his own sister; that his father was a sex offender;
that his brother was a sex offender?
A. Well, I found out through [BC]CYS about his
father.
Q. He didn’t tell you?
A. No, not right away.
Q. [A.D.] didn’t tell you that he raped his sister?
A. No.
Q. You found out all of that … through [BC]CYS?
A. Yes.
Q. And that was March of 2010?
A. Uh-huh.
Id. at 32-33. Mother testified that BCCYS told her in 2010 that the incident
leading to A.D.’s indecent assault charge occurred when he was twelve years
old. Id. at 6.
Mother testified that, in 2010, BCCYS prohibited A.D. to have contact
with her children until he was seen by a therapist, and for her to participate
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in a non-offending parent evaluation at Berks Counseling Associates. 8 Id. at
20. Mother testified as follows.
Q. Whatever happened in the 2010 matter? How did
that end, or did it ever end?
A. [A.D.] went for treatment; he complied with
whatever he was supposed to do. At that time,
[BC]CYS c[a]me to the house and said that they
were going to close the case, and we moved on with
our lives.
Id. at 20-21. Mother testified that BCCYS did not stay involved with her
family after 2010. Id. at 21.
Mother testified that, in April 2014, she contacted the police upon
finding that an “older gentleman,” whom she further described as a “body
builder guy,” inappropriately communicated with I.A.-H. via Facebook. Id.
at 8, 46. Specifically, Mother testified that she saw messages from the man
to I.A.-H. stating, “Baby, I love you. Will you answer me, Baby? Baby,
you’re not talking to me.” Id. at 46.
Detective Snell testified that, upon investigation, he learned that the
messages were coming from the residence of A.D. Id. at 55. Detective
Snell testified that, upon speaking with A.D., he admitted to having the
inappropriate communications via Facebook with I.A.-H. under an alias
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8
The record includes the non-offending parenting evaluation by Berks
Counseling Associates, P.C., and it is dated October 5, 2009. N.T.,
10/15/14, at Exhibit 2, p. 1. At the time of the evaluation, Mother was
A.D.’s paramour and was pregnant with D.D., the first of her two children
with A.D. Id.
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name, and he admitted to soliciting her to send naked pictures of herself.
Id. at 55-56. Detective Snell testified that, upon questioning A.D. regarding
whether he sent I.A.-H. the picture of the penis, A.D. “said he didn’t
remember if he did or didn’t and became very defensive.” Id. Detective
Snell testified he told Mother that A.D. admitted to sending the
communications to I.A.-H. via Facebook. Id. at 58. In addition, Detective
Snell told Mother to report A.D.’s behavior to BCCYS. Id.
Mother testified that she telephoned BCCYS on May 30, 2014. Id. at
22. In addition, Mother testified that she asked A.D. to leave the home,
where they lived with the Children and Mother’s parents, “as soon as the
police left the house[.]” Id. at 23. Mother also testified that she has not
initiated a divorce action against A.D., but they do not live in the same
home. Id. at 10-11.
Susan Bamford, the BCCYS caseworker, testified that she received a
report regarding A.D.’s behavior at the end of May. Id. at 61. Bamford
testified that she visited the family and implemented a safety plan that
included prohibiting A.D. from having any contact with Mother’s three older
children, and supervised contact, at Mother’s discretion, with D.D. and K.D.
Id. at 62.
Significantly, Bamford testified with respect to a conversation she had
with Mother regarding the risk posed by A.D., as follows.
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Q. Did you have a conversation with [Mother]
regarding whether [A.D.] posed any type of risk to
his children?
A. I did. On my visit, we sat down at the dining
room table in grandmom’s house and discussed the -
- this was after the preliminary hearing had taken
place and he had waived the hearing. And we
discussed what that was about, and we discussed
that [I.A.-H.] still did not know that he was the one
who had sent the picture, but mom knew who it was.
And she also indicated - - we had a discussion about
was she concerned for the threat to her children by
[A.D.], and I specifically said physically touching
them. Because he was capable of doing what he did,
the next step would be [to] follow through on
touching them. And [Mother] told me that she did
not feel that he was any threat of touching her
children.
Q. Did … you observe mom to be concerned about
the photograph that had been sent, or anything like
that?
A. No, she wasn’t really concerned about the
photograph.
…
THE WITNESS: She did indicate that, even though
he had been through the preliminary hearing, that
we would wait and see what happened in court.
Id. at 65-66.
Mother testified as follows regarding her conversation with the BCCYS
caseworker and, further, about whether she believes A.D. sent the picture of
the erect penis to I.A.-H.
Q. And when the [BCCYS] caseworker specifically
asked if you thought [A.D.] was any risk or threat to
your children, what did you say?
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A. No. I think it was no.
…
Q. And, now, do you question whether it was [A.D.]
sending - - what did he send to your daughter?
A. Honestly, I really don’t even know; nobody shown
it to me
…
Q. So you have no idea, to this day, what the picture
that was sent to your daughter was of?
A. Nope, never saw it.
Q. Never saw it, or you don’t know what it was?
A. I mean, they say there was a picture of a man’s
private part, but I never saw it.
…
Q. Wasn’t there a preliminary hearing?
A. It was waived.
Q. [ ] And who was charged at the preliminary
hearing?
A. [A.D.] was. But I have asked – I mean, I never,
personally, saw anything, so I was just going by
what they said. Do you know what I mean? And
that’s what I’m trying to wait until the court hearing
to decide what my next move is with my marriage
because of the – if I’m going to stay married to the
man who has sent a picture to my child. But I’m
waiting for the law and all the court hearing to go
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through so I know there is a - - there is no question
he did it.
Id. at 12-14.9
Based on the testimony of Mother and Bamford, and the documentary
evidence of record, specifically, BCCYS Exhibits 1 (A.D.’s sexuality
evaluation), 2 (Mother’s non-offending parent evaluation), 8 (A.D.’s criminal
docket), and 9 (affidavit of probable cause in support of the charges against
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9
In addition, D.K., the Children’s maternal grandmother, in whose home the
family lives, testified on cross-examination by counsel for BCCYS, that “I
don’t feel, given [A.D.’s] behaviors, his conversations, that there’s been any
reason for concern [of A.D. being a risk to the Children].” N.T., 10/15/14, at
80. Further, D.K. testified:
Q. So the fact that [A.D.] admitted to having a
conversation with [I.A.-H] on Facebook, that’s not - -
…
A. Sure, that would concern me. I just don’t know
enough about what really happened yet at this point.
Q. And now you are aware, though, that someone
with the IP address that matched up to your house
sent [I.A.-H] messaging saying: Send me a picture
of your vagina. I will send you $50.
You’re aware of that, correct?
A. I’m aware of the report that said witnesses said
so. That’s all I know. And I just feel like I need to
know more so I know how to behave from here on
in.
Id. at 81-82.
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A.D.), we discern no abuse of discretion by the trial court in finding that
“Mother is unable to appreciate the seriousness of the risk that A.D. poses to
I.A.-H. and the other minor children.” Trial Court Opinion, 12/12/14, at 4.
It follows that we conclude the trial court did not abuse its discretion in
adjudicating the Children dependent for being “without proper parental care
or control … necessary for [their] physical, mental, or emotional health, or
morals.” 42 Pa.C.S.A. § 6302.
We specifically reject Mother’s contention that BCCYS did not meet its
burden based on a notation in Bamford’s August 29, 2014 casenote, stating
that Mother and I.A.-H.’s father, R.H., “are capable of utilizing appropriate
protective capacities.” N.T., 10/15/14, at 70-71. In the closing argument of
counsel for BCCYS, counsel argued that dependency is appropriate for the
following reason.
While we agree these children can remain at home
with mom, we are asking th[e trial c]ourt to give
specific, absolutely no contact with [A.D.], as well as
that mom needs to cooperate with non-offender
treatment so, again, that it can be made clear the
signs and the things that she needs to watch for to
make sure that nothing further happens to her
children.
N.T., 10/15/14, at 84-85. Likewise, the GAL recommended the Children be
adjudicated dependent, testifying as follows.
I believe the children should be dependent. Mom [ ]
-- and despite having gone through offender
treatment to recognize when there is a predator
under your roof and that her daughter was
responding, I think she needs the treatment again.
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Id. at 88. Based on the totality of the record evidence, we discern no abuse
of discretion by the court in adjudicating the Children dependent so that
Mother would participate in another non-offending parenting evaluation and
cooperate with the treatment recommended, inter alia.
In addition, although there is no evidence in the certified record that
A.D. has inappropriately communicated with or illegally solicited any of the
Children other than I.A.-H., this Court has stated the following consideration
in determining whether siblings are also dependent.
[T]he focus is not on whether the other siblings are
actually at risk of abuse themselves. [“]Rather, the
key question is whether the siblings fit the broader
definition of lacking ‘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.’”
In re M.W., 842 A.2d 425, 429 (Pa. Super. 2004); see also In re S.B.,
833 A.2d 1116 (Pa. Super. 2003) (concluding that, where one sibling is
abused and found to be dependent, it is within the trial court’s discretion to
determine other siblings are dependent even if they are not abused). Here,
we discern no abuse of discretion by the court in adjudicating the Children,
which includes the siblings of I.A.-H., dependent. Thus, Mother’s first issue
fails.
In her second issue, Mother argues that the trial court erred in not
dismissing the dependency petitions for failing to be served promptly
pursuant to Pennsylvania Rule of Juvenile Court Procedure 1331.
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Rule 1331. Service of Petition
A. Copy. Upon the filing of a petition, a copy of the
petition shall be served promptly upon the child, the
child’s guardian, the child’s attorney, the guardian’s
attorney, the attorney for the county agency, and
the county agency.
Pa.R.J.C.P. 1331(A).
Mother alleges that the dependency petitions were filed on August 20,
2014, but Mother was not served with the petitions until September 8, 2014.
Further, Mother alleges that, during the time period between the filing of the
petitions and their service, “much happened between the parties[.] The
[BC]CYS caseworker had a home visit on August 29, 2014. Justice [W]orks
would have made weekly visits to the home for inspections. Counseling
would have been ongoing. [A.D.], the father, had his criminal preliminary
hearing AND his arraignment.” Mother’s Brief at 13.
Mother argues “[i]t is fundamentally unfair to allow th[e] parents to
proceed in their contact with [BC]CYS without the benefit of legal counsel
and without knowing that their relationship with CYS has changed.” Id. at
13-14. In addition, Mother argues, “[a]llowing [BC]CYS to have the
advantage to prepare for the hearing without the parents knowing that
dependency was sought is fundamentally unfair.” Id. at 14.
Mother does not indicate that she raised this claim before the trial
court, nor does our review of the record reveal that she raised it in the trial
court. It is axiomatic that claims that were not raised in the trial court may
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not be raised for the first time on appeal. Jahanshahi v. Centura
Development Co., Inc., 816 A.2d 1179, 1189 (Pa. Super. 2003); accord
Pa.R.A.P. 302(a). Thus, we conclude that Mother has not preserved this
issue for appellate review. However, even if Mother did preserve this issue,
we would conclude that it is without merit.
The trial court reasoned in its Rule 1925(a) opinion as follows.
Pennsylvania Rule of Juvenile Court Procedure 1331
requires that a copy of a dependency petition be
served promptly upon a child’s guardian. Nothing in
the rule imposes any strict timing requirements. The
[trial c]ourt believes that service was prompt for the
purposes of Pa.R.J.C.P. 1331. Mother was served on
September 8, 2014, and counsel entered his
appearance on September 12, 2014. The purpose of
Pa.R.J.C.P. 1331 is to afford the parent an adequate
opportunity to prepare a response to the dependency
petition. Mother was afforded an opportunity to
retain private counsel and granted a continuance for
counsel to obtain discovery prior to the adjudicatory
hearing held on October 15, 2014. Even if service
was delayed as argued by Mother, the proper
remedy would not have been a denial or dismissal of
the dependency petitions and, thus any error would
be harmless.
Trial Court Opinion, 12/12/14, at 4.
We agree with the trial court that there is no mandatory language in
Rule 1331 requiring dismissal of an action for a delay in the service of a
petition. Further, we agree with the trial court that, in this case, service was
prompt for purposes of Rule 1331, having been made nineteen days after
the petitions were filed.
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Based on the foregoing, we conclude all of Mother’s issues on appeal
are either waived or devoid of merit. Accordingly, the trial court’s October
17, 2014 orders are affirmed.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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