In the Interest of: L.C., a Minor ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.C., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.C., MOTHER,
Appellant No. 351 EDA 2015
Appeal from the Order Entered December 29, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001916-2013
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 13, 2015
A.C., Mother, appeals from the trial court’s order entered December
29, 2014, which removed from Mother’s physical custody L.C. (“Child”), a
daughter born in May of 2013.1 The order transferred Child to the physical
custody of the Philadelphia County Department of Human Services (“DHS” or
“the Agency”) and also ordered Child to remain in the legal custody of DHS. 2
We affirm.
The trial court set forth the history of this case as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
On November 7, 2013, Child had been adjudicated dependent under
section 6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301-6365.
2
A.P., Child’s father, has not filed an appeal from the disposition order, nor
is he a party to this appeal.
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On November 7, 2013[,] [Child] was adjudicated
dependent by Master Lynne M. Summers. [The trial court
adopted the Master’s recommendation as an order on that same
date.]
On February 6, 2014[,] a permanency review hearing was
held. The [trial court] ordered that [C]hild remain in the custody
of [M]other at Gaudenzia drug and alcohol treatment program.
[M]other was ordered not to leave Gaudenzia drug and alcohol
treatment program with [C]hild under any circumstances.
Furthermore, the [c]ourt ordered that if [M]other left the drug
and alcohol treatment program against medical advice – DHS
would obtain an Order of Protective Custody (OPC). Moreover,
an OPC would also be obtained if [M]other tested positive for
drugs. Mother was referred to the Clinical Evaluation Unit (CEU)
for monitoring.
The matter was then listed on a regular basis before
judges of the Philadelphia Court of Common Pleas – Family Court
Division – Juvenile Branch pursuant to section 6351 of the
Juvenile Act, 42 Pa.C.S.A. § 6351, and evaluated for the purpose
of determining or reviewing the permanency plan of [C]hild.
On December 29, 2014, a Permanency Review Hearing for
[Child] was [held] before the Honorable Jonathan Q. Irvine[.]
Trial Court Opinion, 3/10/15, at 1-2 (unpaginated).
At the permanency review hearing on December 29, 2014, DHS
presented the testimony of its social worker, Jocelyn Childs and Norris
Holland, the Juvenile Justice Center (“JJC”) worker assigned to the case.
N.T., 12/29/14, at 5-13. Mother did not testify or present evidence.
On December 29, 2014, the trial court entered an order removing
Child from Mother’s physical custody and transferring Child to the physical
custody of DHS under section 6351 of the Juvenile Act. Child remained in
the legal custody of DHS. On January 22, 2015, Mother timely filed a notice
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of appeal and a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother presents the following issue for our review:
1. Whether the evidence was sufficient to support removal of
the Minor Child from Appellant, and place her into Agency
custody[?]
Mother’s Brief at 5.
Mother contends that DHS failed to meet its burden of proof in
demonstrating by clear and convincing evidence that Child needed to be
removed from Mother’s care and placed in the physical custody of DHS.
Mother has mental health issues, has admitted to using marijuana, and she
was not compliant with services. Mother’s Brief at 7. However, Mother
asserts that Child was safe and that Mother was meeting Child’s needs.
Mother alleges that her home was appropriate, and DHS had not observed
any instances where Mother was not properly supervising Child. Mother
urges that there was “little [evidence] to support any immediate risk to the
[C]hild.” Id. She claims that the evidence was insufficient to support the
trial court’s placement of Child in the physical custody of DHS.
The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows:
“[T]he standard of review in dependency cases requires an
appellate court to accept 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.” In re R.J.T.,
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608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Further, we have stated that
[t]he burden of proof in a dependency proceeding is on the
petitioner to demonstrate by clear and convincing evidence that
a child meets that statutory definition of dependency.
In re: G., T., 845 A.2d 870, 872-873 (Pa. Super. 2004) (quotation marks
and citations omitted). 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 the Interest of: A.B., A Minor, 63 A.3d
345, 349 (Pa. Super. 2013). In addition, this Court has stated that “[a]n
abuse of discretion is not merely an error of judgment; if, in reaching a
conclusion, the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly unreasonable or the
product of partiality, prejudice, bias or ill will, discretion has been abused.”
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation
omitted).
In In re: D.A., A Minor, 801 A.2d 614 (Pa. Super. 2002) (en banc),
we explained the following:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to
make a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the
court finds that the child is dependent, then the court may make
an appropriate disposition of the child to protect the child’s
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physical, mental and moral welfare, including allowing the child
to remain with the parents subject to supervision, transferring
temporary legal custody to a relative or a private or public
agency, or transferring custody to the juvenile court of another
state. 42 Pa.C.S. § 6351(a).
Id. at 617 (citation omitted). Further, the Court in In re: D.A. stated that
the question of whether a child is lacking proper parental care and control
involves two discrete questions: whether the child is presently without
proper care or control, and, if so, whether such care and control are
immediately available. Id. at 619.
In addition, we observe the following instruction of our Supreme
Court, as set forth in R.J.T.:
[W]e must defer to the trial judges who see and hear the parties
and can determine the credibility to be placed on each witness
and, premised thereon, gauge the likelihood of the success of
the current permanency plan. Even if an appellate court would
have made a different conclusion based on the cold record, we
are not in a position to reweigh the evidence and the credibility
determinations of the trial court.
Id., 9 A.3d at 1190.
The disposition of a child adjudicated dependent is governed by section
6351 of the Juvenile Act, which provides in relevant part as follows:
(a) General rule.--If the child is found to be a dependent child
the court may make any of the following orders of disposition
best suited to the safety, protection and physical, mental, and
moral welfare of the child:
(1) Permit the child to remain with his parents,
guardian, or other custodian, subject to conditions
and limitations as the court prescribes, including
supervision as directed by the court for the
protection of the child.
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(2) Subject to conditions and limitations as the court
prescribes transfer temporary legal custody to any of
the following:
(i) Any individual resident within or
without this Commonwealth, including
any relative, who, after study by the
probation officer or other person or
agency designated by the court, is found
by the court to be qualified to receive
and care for the child.
(ii) An agency or other private
organization licensed or otherwise
authorized by law to receive and provide
care for the child.
(iii) A public agency authorized by law to
receive and provide care for the child.
(2.1) Subject to conditions and limitations as the
court prescribes, transfer permanent legal custody to
an individual resident in or outside this
Commonwealth, including any relative, who, after
study by the probation officer or other person or
agency designated by the court, is found by the
court to be qualified to receive and care for the child.
A court order under this paragraph may set forth the
temporary visitation rights of the parents. The court
shall refer issues related to support and continuing
visitation by the parent to the section of the court of
common pleas that regularly determines support and
visitation.
42 Pa.C.S. § 6351(a).
Moreover, the trial court is required to make the following
preplacement findings:
(b) Required preplacement findings.-- Prior to entering any
order of disposition under subsection (a) that would remove a
dependent child from his home, the court shall enter findings on
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the record or in the order of court as follows:
(1) that continuation of the child in his home would
be contrary to the welfare, safety, or health of the
child;
(2) whether reasonable efforts were made prior to
the placement of the child to prevent or eliminate
the need for removal of the child from his home, if
the child has remained in his home pending such
disposition; or
(3) if preventive services were not offered due to the
necessity for an emergency placement, whether such
lack of services was reasonable under the
circumstances; or
(4) if the court has previously determined . . . that
reasonable efforts were not made to prevent the
initial removal of the child from his home, whether
reasonable efforts are under way to make it possible
for the child to return home; or
(5) if the child has a sibling who is subject to
removal from his home, whether reasonable efforts
were made prior to the placement of the child to
place the siblings together or whether such joint
placement is contrary to the safety or well-being of
the child or sibling.
The court shall not enter findings under paragraph (2), (3) or (4)
if the court previously determined that aggravated circumstances
exist and no new or additional reasonable efforts to prevent or
eliminate the need for removing the child from the home or to
preserve and reunify the family are required.
42 Pa.C.S. § 6351(b).
Thus, the trial court may make an appropriate disposition in order to
protect the child’s physical, mental and moral welfare, including transferring
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temporary custody to a public agency. In re: M.L., 757 A.2d 849, 850–851
(Pa. 2000). Also, this Court has stated:
Even after a child has been adjudicated dependent,
however, a court may not separate that child from his or her
parent unless it finds that the separation is clearly necessary.
“‘Such necessity is implicated where the welfare of the child
demands that he [or she] be taken from his [or her] parents’
custody.’”
In re: G., T., 845 A.2d at 873 (citations omitted) (alterations in original).
In In the Interest of: A.B., a panel of this Court explained the
following with regard to when a child should be removed from parental
custody:
The law is clear that a child should be removed
from her parent’s custody and placed in the custody
of a state agency only upon a showing that removal
is clearly necessary for the child’s well-being. In
addition, this court had held that clear necessity for
removal is not shown until the hearing court
determines that alternative services that would
enable the child to remain with her family are
unfeasible.
In re K.B., 276 Pa. Super. 419 A.2d 508, 515 (Pa. Super. 1980)
(citations omitted). In addition, this Court has stated: “[I]t is
not for this [C]ourt, but for the trial court as fact finder, to
determine whether [a child’s] removal from her family was
clearly necessary.” In re S.S., 438 Pa. Super. 62, 651 A.2d
174, 177 (1994).
Id. at 349-350. Indeed, “[b]oth Section 6351 and relevant case law state
that the main purpose of the disposition of a depend[e]nt child is to examine
what is in the best interest of that child.” In the Interest of: Z.W., C.C.,
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A.R., and N.S. v. Tioga County Human Services Agency, 710 A.2d
1176, 1178 (Pa. Super. 1998).
In her appellate brief, Mother relies upon the following four cases: In
Interest of Pernishek, 408 A.2d 872 (Pa. Super. 1979); Rinker Appeal,
117 A.2d 780 (Pa. Super. 1955); In the Interest of Feidler, 573 A.2d 587
(Pa. Super. 1990); and In re: D.A., supra. However, we conclude that
these cases do not support Mother’s claim on appeal.
In In re: E.P., a Minor, 841 A.2d 128 (Pa. Super. 2003), a panel of
this Court stated the following:
[T]his Court has previously interpreted the Juvenile Act to allow
for the removal of a dependent child from the custody of his
parents only where there is “clear necessity” for such removal
and where such removal can be reconciled with the “paramount
purpose” of preserving family unity. See e.g. In Interest of
LaRue, 244 Pa. Super. 218, 366 A.2d 1271, 1273 (Pa. Super.
1976); In Interest of Pernishek, 268 Pa. Super. 447, 408
A.2d 872, 877 (Pa. Super. 1979); In re Donna W., 284 Pa.
Super. 338, 425 A.2d 1132, 1134 (Pa. Super. 1981). These
cases, however, predate the 1998 amendments to the Juvenile
Act which, as we explain below, altered the purposes of the Act.
Moreover, this Court has also long held that such necessity for
removal is implicated where the welfare of the child demands
that he be taken from his parents’ custody. In re S.M., 418 Pa.
Super. 359, 614 A.2d 312, 314-315 (Pa. Super. 1992). “When a
child is . . . being neglected to its detriment, it is the right and
duty of the state, acting through its courts, to transfer the child’s
custody to persons who will treat the child in such a manner as
to foster its well-being and promote its health and happiness.”
In re Miller, 380 Pa. Super. 423, 552 A.2d 261 (Pa. Super.
1988) (citations omitted). This view is reflected in the 1998
amendment to section 6301(b)(1) of the Juvenile Act which
added an alternative paramount purpose of “providing another
alternative permanent family when the unity of the family cannot
be maintained.” 42 Pa.C.S.A. § 6301(b)(1). We agree with the
Allegheny County Office of Children, Youth and Families (“OCYF”)
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that by this amendment, part of the General Assembly’s
implementation of the Adoption and Safe Families Act of 1997
(“ASFA”), 42 U.S.C.A. § 629 (Public Law 105-89), “the focus of
the [Juvenile] Act shifted somewhat from its emphasis on family
unity to an emphasis on the child impacted by a dependency
adjudication. The amendments, in compliance with the Federal
legislation, emphasized permanency for children.”
In re: E.P., 841 A.2d at 132-133.
Mother has cited In Interest of Pernishek for the proposition that,
under the Juvenile Act, a child may not be separated from his parents unless
such separation is clearly necessary. Mother’s Brief at 8. As such, she has
appropriately set forth the standard for removal of the child from her care
under the current law, as cited above.
In Rinker Appeal, this Court reviewed an appeal from a trial court
order determining that three children were “neglected” under the Juvenile
Court Law, 11 P.S. 243, which was the statutory precursor to the current
Juvenile Act. As the Juvenile Court Law statute is no longer in effect, we
find Rinker Appeal to be inapplicable to the instant matter.
In Interest of Feidler, this Court reviewed an appeal from an order
removing two minor children from the home of their parents. The order
awarded legal and physical custody to the county children and youth
services agency under the Juvenile Act. The parents argued that the
removal of the children from their home was not clearly necessary. This
Court found that, based on the limited record before us, there was no clear
and convincing evidence that every reasonable effort had been made to keep
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the family together. Id. at 532-533. However, as set forth in In re: E.P.,
the focus under the Juvenile Act is currently on the well-being of the
dependent child, not on preserving family unity to the child’s detriment. In
re: E.P., 841 A.2d at 132-133. Moreover, the decision in Interest of
Feidler rested upon the specific facts in that case, which are distinguishable
from the facts herein. Thus, we find Interest of Feidler to be
unpersuasive.
Next, in In re: D.A., this Court reviewed a mother’s challenge to a
trial court order that adjudicated her infant daughter a dependent child
under the Juvenile Act and allowed the child to remain in the mother’s
physical custody. This Court found insufficient evidence to support the
dependency determination under section 6302(1) of the Juvenile Act. The
panel could not conclude that there was clear and convincing evidence that
the child was without proper parental care or control based on conduct of
the mother that placed the health, safety, or welfare of the child at risk.
Accordingly, the panel reversed the trial court’s dependency adjudication
order. In re: D.A., 801 A.2d at 622. We find the ruling in In re: D.A. to be
inapplicable to the instant appeal, as we are not reviewing an appeal from
an order adjudicating a child dependent. Rather, we are reviewing an order
that sets forth the disposition of a child previously found to be dependent.
Here, our review of the record reflects that, at the permanency review
hearing on December 29, 2014, Ms. Childs testified that Child was one and
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one-half years old and was living in Mother’s home with DHS supervision.
N.T., 12/29/14, at 6. Although Child was doing well, Ms. Childs expressed
concerns about Child’s developmental behavior and Child’s speech
development being delayed. Id. As a result, Ms. Childs stated that DHS
desired for Child to be evaluated. Id. Child had no other special needs or
services and was current on her medical immunizations. Id. at 6-7.
Ms. Childs further opined that it was inappropriate for Child to remain
in Mother’s home, as Mother was currently noncompliant with her Family
Service Plan (“FSP”) goal objectives. Id. at 7. At Ms. Childs’ most recent
visit to the home on December 16, 2014, Mother stated that she was going
to discontinue her drug and alcohol (“D & A”) program. Id. In addition,
Mother admitted to using marijuana. Id. While conducting a food
verification on that same date, Ms. Childs observed a box of wine in Mother’s
refrigerator and viewed alcohol bottles on the floor of Mother’s bedroom.
Id. Ms. Childs expressed that Mother’s use of alcohol and marijuana was
impairing Mother’s ability to parent Child and to render appropriate
supervision. Id. at 7-8. Also, DHS admitted into evidence a Clinical
Evaluation Unit (“CEU”) report dated December 18, 2014, which indicated
that Mother had not complied with the court’s recommendation to go to the
CEU for an assessment and that the CEU would like to have her back for an
assessment. Id. at 8; DHS Ex. 1.
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In addition to addressing drug and alcohol issues, Mother’s FSP goals
included obtaining and maintaining appropriate housing and stabilizing her
mental health. Id. at 8. Ms. Childs testified that Mother stated she was not
receiving therapy for her bipolar disorder diagnosis. Id. Ms. Childs
explained that Mother has to follow all recommendations, including taking
her prescribed medicine, in order to stabilize her mental health. Id. at 9.
Ms. Childs rated Mother’s level of compliance with her FSP objectives as
minimal. Id. DHS had placement ready for Child on the date of the
hearing. Id.
On cross-examination by the child advocate, Ms. Childs testified that
she had no knowledge of Mother taking any drugs other than marijuana. Id.
at 10. Ms. Childs testified that she had not directly observed any specific
instances where Mother was not correctly supervising Child. Id.
On cross-examination by Mother’s counsel, Ms. Childs stated that
Mother had self-reported smoking marijuana, but Ms. Childs had not
detected any odor of marijuana when she visited the home. Id. The
conditions of Mother’s home were suitable for children, and the children in
the home were current on their medical appointments. Id. Mother’s two
older boys live with Mother and are in school. Id. at 11.
Our review of the record also reflects that Mr. Norris Holland testified
that Tuesday, December 23, 2014, was the last time he visited Mother’s
home. Id. at 11. At the visit, Child was safe and her needs were being
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met. Id. However, Mr. Holland shared DHS’s concerns regarding Mother’s
use of drugs and alcohol. Id.
At the conclusion of the permanency review hearing, the trial court
stated the following:
Based upon the testimony presented in Court today I’m
following the Department[’]s recommendations.
No. Weed is not legal yet, and everybody wants to come
in and say: Oh, it’s okay. You can still smoke weed, drink and
watch your children. And that’s not working. No.
I wouldn’t be doing my job if I let a little baby stay at
home with [a] mom that admitted to smoking weed.
Yea, drinking, you’re right, drinking is not illegal, but,
when you take alcohol in a combination with drugs, well, that
presents a different situation.
So, if she’s not in drug and alcohol treatment and she’s not
doing her mental health, so, that combination is dangerous.
So, that’s what necessitates this.
The child is committed to the Department of Human
Services.
N.T., 12/29/14, at 15-16.
Moreover, in its written opinion, the trial court stated the following:
In the instant case, the DHS social worker testified that
[M]other was non-compliant with her FSP goal objectives. The
[c]ourt ordered [M]other to attend a drug and alcohol treatment
program. [M]other did enroll in the Gaudenzia drug and alcohol
program. Subsequently, [M]other left the Gaudenzia drug and
alcohol program and informed the DHS social worker that she
was not going to continue in the program. Furthermore,
[M]other admitted to the social worker that she was using
marijuana. Moreover, the social worker did a home inspection of
[Child’s] residence and observed a box of wine in [M]other’s
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refrigerator[,] as well as alcohol bottles on [M]other’s bedroom
floor. (N.T. 12/29/14, p. 7). Additionally, [M]other was ordered
to go to the CEU but failed to comply. (N.T. 12/29/14, p. 8).
Lastly, [M]other has untreated mental health issues. [M]other is
not receiving appropriate therapy for her mental health issues,
specifically her bipolar disorder. (N.T. 12/29/14, pgs. 8-9).
A court may not separate a child from a parent even if the
child has been adjudicated dependent unless the court finds that
the separation is clearly necessary for the well-being of the child.
A.N. v. A.N., 39 A.3d 326, 331 (Pa. Super. 2012). In the
instant case, the [t]rial [c]ourt found that the continuation of
[C]hild in the home would be contrary to the welfare, safety or
health of [C]hild. [M]other is not compliant with her drug and
alcohol treatment program. Furthermore, [M]other is refusing to
complete the drug and alcohol program. Moreover, [M]other is
continuing to use illegal drugs and drink alcohol. Lastly,
[M]other is not complying with her mental health therapy[.]
(N.T. 12/29/14, pg[.] 8, 9). The totality of the circumstances
necessitated the removal of [C]hild from [M]other. The safety of
[C]hild was at risk due to [M]other’s continued drug/alcohol
abuse and her untreated mental health issues.
The [t]rial [c]ourt made reasonable efforts to allow [C]hild
to remain in [M]other’s custody. The [c]ourt gave [M]other an
opportunity to participate in a drug and alcohol treatment
program while retaining custody of [C]hild. [M]other failed to
complete the drug and alcohol program[,] and tested positive for
illegal drugs[;] therefore, [C]hild was removed from [M]other’s
custody.
Conclusion:
For the preceding reasons, the [c]ourt finds sufficient
evidence to support the removal of [C]hild from the custody of
[M]other[,] and commit [C]hild to the care and custody of the
Department of Human Services. Furthermore, the court finds
that its ruling is in the best interest of [C]hild[,] as a result of
the testimony regarding [C]hild’s safety, protection, mental,
physical and moral welfare.
Accordingly, the [t]rial [c]ourt’s [o]rder entered on
December [2]9, 2014[,] committing [Child] to DHS[,] should
properly be affirmed.
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Trial Court Opinion, 3/10/15, at 3 (unpaginated).
After a careful review of the record, we find that the trial court’s
credibility and weight determinations are supported by the competent
evidence of record. Thus, we will not disturb them. In Interest of: L.Z.,
111 A.3d at 1174. We find that the trial court complied with the mandates
of the Juvenile Act in order to protect the best interests of Child in this
matter. Accordingly, we find no abuse of the trial court’s discretion.
Order affirmed.
Justice Fitzgerald joins the Memorandum.
Judge Mundy Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
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