In The Interest of: H.H., minor, Appeal of: S.V. ( 2018 )

J-A27043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.H., A/K/A : IN THE SUPERIOR COURT OF
H.P., A MINOR : PENNSYLVANIA
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APPEAL OF: S.V., MOTHER : No. 893 WDA 2017
Appeal from the Order May 30, 2017
in the Court of Common Pleas of Beaver County,
Juvenile Division at No(s): CP-04-DP-0000001-2017
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2018
S.V. (“Mother”) appeals from the Order (hereinafter, the “Dependency
Order”) adjudicating her minor son, H.H. a/k/a H.P. (“Child”) (born in January
2017), dependent under the Juvenile Act, see 42 Pa.C.S.A. § 6301, et seq.
(“the Act”), and the Order finding that aggravated circumstances exist against
Mother (hereinafter, the “Aggravated Circumstances Order”), respectively.
We affirm.1
The trial court set forth the relevant factual background and procedural
history underlying this appeal in its Opinion, which we incorporate as though
fully set forth herein. See Trial Court Opinion, 7/7/17, at 1-5.2
____________________________________________
1Although the trial court judge in the instant case, the Honorable Deborah
Kunselman, is presently a member of this Court, she did not take part in this
panel’s decision.
2 Child’s father, N.R., neither filed an appeal from the Dependency Order or
the Aggravated Circumstances Order, nor is he a party to the instant appeal.
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On May 30, 2017, the trial court entered the Dependency Order, and,
the next day, entered the Aggravated Circumstances Order. Mother timely
filed a Notice 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 now presents the following issues for our review:
1.) Did the Trial Court err in finding … [C]hild dependent, based
in particular upon a finding of a prior dependency involving a
sibling to … [C]hild, and based upon the aggravating
circumstances involving a previous dependency action involving a
sibling to … [C]hild, where … [C]hild was not born until nine (9)
months following the circumstances of the previous case?
2.) Was Mother denied procedural due process where she was not
provided with notice of the intent to seek aggravated
circumstances against her regarding … [C]hild?
3.) Did the Trial Court abuse[] its discretion in ordering that no
efforts are to be made to preserve the family and reunify … [C]hild
with Mother[,] under its [Aggravated Circumstances] Order[,] …
by finding aggravating circumstances, where Mother voluntarily
terminated her parental rights in a prior case?
Mother’s Brief at 4.
[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. We review for [an]
abuse of discretion[.]
In Interest of: L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation and quotation
marks omitted).
The definitions provision of the Act, section 6302, defines a “dependent
child,” in relevant part, as a child who
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is without 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. 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(1).
This Court has clarified the definition of “dependent child” further:
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental
care and control, and if so, whether such care and control are
immediately available.
In re G., T., 845 A.2d 870, 872 (Pa. Super. 2004) (quotation marks and
citations omitted); see also In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010).
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 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 public agency, or transferring custody to
the juvenile court of another state. 42 Pa.C.S. § 6351(a).
In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002) (en banc).
Regarding the disposition of a dependent child, subsections 6351(e), (f),
(f.1), and (g) of the Act provide a trial court with the criteria for its
permanency plan for the subject child, stating, in pertinent part, as follows:
(e) Permanency hearings.
(1) The court shall conduct a permanency hearing for the
purpose of determining or reviewing the permanency plan
of the child, the date by which the goal of permanency for
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the child might be achieved and whether placement
continues to be best suited to the safety, protection and
physical, mental and moral welfare of the child. …
(2) If the county agency or the child’s attorney alleges the
existence of aggravated circumstances and the court
determines that the child has been adjudicated dependent,
the court shall then determine if aggravated circumstances
exist. If the court finds from clear and convincing evidence
that aggravated circumstances exist, the court shall
determine whether or not reasonable efforts to prevent or
eliminate the need for removing the child from the child’s
parent, guardian or custodian or to preserve and reunify
the family shall be made or continue to be made[,] and
schedule a hearing ….
***
(f) Matters to be determined at permanency hearing. — At
each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance
with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
***
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(9) If the child has been in placement for at least 15 of the
last 22 months[,] or the court has determined that
aggravated circumstances exist and that reasonable
efforts to prevent or eliminate the need to remove the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family need not be made or
continue to be made, whether the county agency has filed
or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified
family to adopt the child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the
child’s parent, guardian or custodian within the time
frames set forth in the permanency plan.
***
(f.1) Additional determination. — Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return
of the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and the
county agency will file for termination of parental rights
in cases where return to the child’s parent, guardian or
custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
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(3) If and when the child will be placed with a legal custodian
in cases where return to the child’s parent, guardian or
custodian or being placed for adoption is not best suited
to the safety, protection and physical, mental and moral
welfare of the child.
(4) If and when the child will be placed with a fit and willing
relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
***
(f.2) Evidence. – Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including evidence
of the use of alcohol or a controlled substance that places the
health, safety or welfare of the child at risk, shall be presented to
the court by the county agency or any other party at any
disposition or permanency hearing whether or not the conduct was
the basis for the determination of dependency.
(g) Court order. — On the basis of the determination made
under subsection (f.1), the court shall order the continuation,
modification or termination of placement or other disposition
which is best suited to the safety, protection and physical, mental
and moral welfare of the child.
42 Pa.C.S.A. § 6351(e)-(g).
Further, the Act defines “aggravated circumstances” as including, inter
alia, the following: “The child or another child of the parent has been the
victim of physical abuse resulting in serious bodily injury, sexual violence or
aggravated physical neglect by the parent.” 42 Pa.C.S.A. § 6302 (emphasis
added); see also id. (defining “serious bodily injury” as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
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disfigurement or protracted loss or impairment of the function of any bodily
member or organ.”).
If the court finds[,] from clear and convincing evidence[,] that
aggravated circumstances exist, the court shall determine
whether or not reasonable efforts to prevent or eliminate the need
for removing the child from the home[,] or to preserve and reunify
the family[,] shall be made or continue to be made[,] and
schedule a hearing as required in section 6351(e)(3) (relating to
disposition of dependent child).
42 Pa.C.S.A. § 6341(c.1).
In her first issue, Mother argues that the trial court incorrectly
determined that Child was a “dependent child,” based upon a prior finding of
dependency and aggravated circumstances involving Mother’s older child,
C.H., where the allegations concerning the abuse of C.H. preceded the birth
of Child by more than nine months. Mother’s Brief at 7. Mother further
complains that the trial court erred in determining that a single instance of
drug use by Mother in August 2016, approximately five months prior to Child’s
birth, required an adjudication of dependency. Id. at 9.
Moreover, Mother asserts that neither a prior adjudication of
dependency concerning a sibling, nor a prior finding of aggravated
circumstances, is included within the ten enumerated reasons for finding a
child dependent under 42 Pa.C.S.A. § 6302. See Mother’s Brief at 11. Citing
In the Interest of R.T., 592 A.2d 55, 61 (Pa. Super. 1991), and In the
Interest of Theresa E., 429 A.2d 1150, 1156 (Pa. Super. 1981), Mother
asserts that a child should not be found dependent merely because a sibling
is dependent. See Mother’s Brief at 11-12.
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In its Opinion, the trial court cogently addressed Mother’s claims,
distinguished the cases she relies upon, and determined that there was clear
and convincing evidence that Child was a “dependent child[,]” under
subsection 6302(1), supra, for being without proper parental care and
control. See Trial Court Opinion, 7/7/17, at 5-9. We agree with the trial
court’s rationale and determination, and therefore affirm on this basis as to
Mother’s claim. See id.3
As an addendum, we note that Mother also contends in her first issue
that CYS’s Petition to find Child dependent (the “dependency Petition”) did not
allege Mother’s prior substance abuse issues as the basis for the dependency
determination. See Mother’s Brief at 9-10. Mother argues that, therefore,
any testimony regarding her prior drug use was not properly before the trial
court in considering whether to adjudicate Child dependent. See id. Mother
complains that the testimony at the dependency hearing, which was offered
to imply that her substance abuse issues from the time prior to August 2016,
as a basis for finding Child dependent, was a substantial change in the type
of conduct alleged in the dependency Petition. Id. She claims that she lacked
notice of this change, and that it constituted a fundamentally unfair procedure
against her. Id. Mother argues that the trial court’s consideration of her prior
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3 Moreover, contrary to Mother’s claim in her brief, the trial court’s Opinion
did not improperly rely on the decision in In the Interest of S.B., 833 A.2d
1116 (Pa. Super. 2003), nor is that case distinguishable for the reason she
asserts. See Mother’s Brief at 12-13; Trial Court Opinion, 7/7/17, at 7-9.
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drug use violated her due process rights, and that she raised this issue prior
to the closure of the record. Id. Mother relies on In the Interest of R.M.,
790 A.2d 300 (Pa. 2002), to support her argument. Mother’s Brief at 9-10;
see also R.M., 790 A.2d at 305-07 (where the trial court determined that the
child was a “dependent child” based upon certain issues and conduct of the
parents not alleged in the agency’s dependency petition, holding that a due
process violation occurred where the parents were not given adequate notice
of such allegations).
“Due process requires nothing more than adequate notice, an
opportunity to be heard, and the chance to defend oneself in an impartial
tribunal having jurisdiction over the matter.” In re J.N.F., 887 A.2d 775, 781
(Pa. Super. 2005).
Unlike the circumstances in R.M., supra, Mother had adequate notice
that CYS requested the trial court to find Child dependent based on the lack
of proper parental care or control. The primary issues concerning Mother’s
involvement with CYS, which could result in Child being deemed without
proper parental care or control, were her ongoing struggle with substance
abuse, and her recent prior history of abusing C.H. The dependency Petition,
filed at Child’s birth in April 2017, recited concerns regarding (1) Mother’s
purported drug use during her pregnancy with Child, specifically, in the
summer of 2016; (2) a positive result for drugs on August 18, 2016; and (3)
her prior history of abusing C.H. We, thus, discern no merit to Mother’s
argument that she lacked notice and was unable to defend herself against the
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dependency Petition. Accordingly, Mother’s first issue does not entitle her to
relief.
In her second issue, Mother argues that the trial court deprived her of
due process by failing to give her notice of CYS’s intent to seek a finding of
aggravated circumstances, and alleges that CYS was improperly allowed to
proceed upon an oral Motion for a finding of aggravated circumstances. See
Mother’s Brief at 15-17.
The trial court concisely addressed Mother’s claim in its Opinion, which
we incorporate herein by reference. See Trial Court Opinion, 7/7/17, at 9.
The record confirms that Mother had adequate notice, an opportunity to
be heard, and the chance to defend herself in an impartial tribunal having
jurisdiction over the matter, with regard to the allegations of aggravated
circumstances against her. Thus, we conclude that the trial court did not
violate Mother’s due process rights in allowing CYS to present the aggravated
circumstances Petition against her. See In re J.N.F., 887 A.2d at 781.
Moreover, there is clear and convincing evidence in the record to support the
trial court’s finding that “aggravated circumstances” exist under subsection
6302(2), because another child of Mother, C.H., had been the victim of
Mother’s physical abuse that resulted in serious bodily injury. See Trial Court
Opinion, 7/7/17, at 9-10. Accordingly, Mother’s second issue lacks merit.
In her third and final issue, Mother argues that the trial court abused its
discretion, concerning the Aggravated Circumstances Order, in directing that
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no efforts were to be made to preserve the family and reunify Child with
Mother, where
(1) Mother voluntarily terminated her parental rights in the prior
case involving C.H;
(2) Mother and Child were drug free; and
(3) Child was taken from her within a day of his birth, having
suffered no abuse or injuries.
See Mother’s Brief at 17-18.
In its Opinion, the trial court addressed Mother’s claim, and we
incorporate its cogent analysis herein. See Trial Court Opinion, 7/7/17, at
10-11. For the reasons set forth previously in this Memorandum, we discern
no abuse of discretion in the trial court’s determination that Child was
dependent, and that aggravated circumstances existed. Thus, the trial court
properly exercised its discretion in ruling that no efforts needed to be made
to reunify Child with Mother. See 42 Pa.C.S.A. § 6341(c.1); see also In re
A.H., 763 A.2d 873, 878 (Pa. Super. 2000) (stating that “[w]hen the court
finds aggravated circumstances exist, it is well within its discretion to order
the cessation of reunification services.”).
Accordingly, as none of Mother’s claims of error entitle her to relief, we
affirm the Dependency Order and the Aggravated Circumstances Order.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
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Circulated 03/09/2018 04:34 PM
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
PENNSYLVANIA
JUVENILE DIVISION
In the Interest of:
H.H., a.k.a.
H.P., a Minor Juv. No. 5-2017
DOB: 1/)2017
CP-4-DP-0000001 of 2017
FID: 04-FN-00008-2016
1925 {a) OPINION
D. KUNSELMAN, J. JULY?, 2017
The Court held a hearing on March 21, 2017 and April 4, 2017 to adjudicate
dependency of the minor child, H.H., and to determine whether aggravated
circumstances exist. Both parents contested dependency and aggravated
circumstances. At the conclusion of the hearing, the Court took the matter under
advisement and requested the parties to brief certain legal issues. Ultimately, the Court
concluded that the minor child was dependent and that aggravated circumstances
existed. Mother appeals these decisions.
FACTS
This case began in Beaver County, when CYS filed an Emergency Motion for
Protective Custody of H.H., shortly after he was born on January , 2017. The child was
taken into protective custody on January I , 2017, and placed with A, · y, ,. a
kindshlp foster home. Ms. Y , is the paternal grandmother of H.H.'s half sibling,
C.H., whom she adopted following a separate dependency and aggravated
circumstances case. A shelter care hearing was held on January 9, 2017. The child
remained in protective care, with supervised visits offered to Mother.
Approximately six months prior to the birth of H.H., the Court found Mother was
the perpetrator of physical abuse resulting in serious bodily injury to her other son, C.H .•
who was approximately two year's old. C.H. was taken to Children's Hospital, following
a tip to CYS, in April 2016. He had very serious visible bruising on his face. While being
treated, it became clear that in addition to multiple bruising and abrasions on his body,
he had internal injuries as well. He suffered from a large duodenal hematoma, which
was the result of serious blunt trauma. The doctors determined C.H.'s injuries were
caused by physical child abuse on multiple occasions, and that the adult's in his life
failed to keep him safe. The doctors indicated that these injuries would have been very
painful and apparent to a reasonable caretaker that he was injured. C.H. was
adjudicated dependent, aggravated circumstances were found to exist, and Mother
voluntarily terminated her parental rights to C.H.
CYS filed a formal petition for dependency when H. H. was born, due to findings
of this Court with respect to the child's half sibling C.H. and also because Mother did not
participate in any parenting services, and admitted to usirg drugs during her pregnancy
with H.H.
On the day of the shelter care hearing, January 9, "2017, only a few days after the
· birth of H.H., Mother was scheduled for a criminal trial in Beaver County. She ultimately
pleaded guilty to a felony count of endangering the welfare of a child and to simple
assault for the abuse of C.H. She was sentenced to jail for a period of approximately 3
months. Prior to the shelter care hearing, CYS presented its petition for aggravated
circumstances wlth respect to Mother, concerning H.H., and the court scheduled a
hearing for February 7, 2017. Notice of this petition was mailed to Mother on January 6,
2017.
2
On February 7, 2017, the Court continued the adjudication of dependency and
aggravated circumstances hearing for H.H. until March 21, 2017, because CVS was
trying to determine the Identity of the Father. At first, E.P. was thought to be the father,
but a DNA test proved otherwise. Then, in March 2017, N.R. was determined to be the
Fathsrof H.H. through genetic testing.
Day one of the dependency/aggravated circumstances hearing was held, as
scheduled, on March 21, 2017. Mother admitted that she was incarcerated at the time
of the hearing due to abuse toward her two year old son, C.H. She testified, "I am
incarcerated for what had happened. I have the charges on me. I took the charges. I
took the plea. I took the child endangerment. I took the simple assault." (Trial.Record
62).
She also testified that she was clean since the end of August, and that there was
a positive drug screen on her on August 18, 2106 (T.R. 59, 62, 64), which means she
did use drugs during the initial months of her pregnancy with H.H.
She wanted H.H. to go with his Father while she was incarcerated. (T.R. 60).
She noted there were no criminal charges against Father. She denied ever hurting C.H.,
and believed it was her brother, and not Father, who caused the injuries to C.H. (T.R.
71-72). However, she was not always there when Father was alone with C.H. (T.R.
73) ..
Initially, following the testimony, the Court was inclined to award custody of the
minor, H.H., to Father in this case, and close the dependency action for H.H. Father
testified that he ls 28 years old and has a 5 year old son. He shares custody of his son
with the child's mother; there is no formal arrangement for custody. (T .. R. 74, 76-77).
He is employed by his brother doing construction work. (T.R. 78). He lives with his
3
mother in Rochester, and there is room for H.H. to reside with them. (78-80}. He was
undergoing drug and alcohol treatment. (T.R. 75}. He had a relapse for heroin a year
ago. (T.R. 89-89}. He was on probation, but had a hearing coming up where he thought
everything would be resolved. (T.R. 76). He was willing to do a parenting evaluation
and allow CVS to speak with his drug and alcohol counselor. (T.R. 82-83}. He was
excited and was ready to be a full-time parent for H.H. (T.R. 85). He had transportation
available for the child's medical appointments and all the things he would need to take
care of him. (T.R _89·90). He stated that the last time he was in active use of drugs
was the relapse a year ago, otherwise he would have been clean for two years. (T.R.
88}. He indicated that he takes Suboxone. (T.R. 88).
Prior to ruling on the adjudication, the Court wanted Father to take a drug test
and ordered the parties to submit a trial brief on the issue of dependency for one child
as it relates to a prior finding of dependency for a sibling.
At the conclusion of the hearing, as directed by the Court, Father went to the
Adult Probation office in the courthouse for his drug test He tested positive for THC,
and negative for the Suboxone which he was prescribed. This gave rise to on-going
drug and alcohol concerns.
Upon a motion from one of the parties, the Court reconvened the hearing on
dependency and aggravated circumstances, a few weeks later, on April 4, 2017, due to
the results of Father's drug test. On day two of the hearing, the adult probation officer,
C.J. Mavero, .who administered Father's drug test, testified about the results of the test.
Father failed to appear for day two of the hearing. His attorney claimed that,
according to Father's mother. Father was too sick to appear. Father was available by
telephone, and the Court called from the courtroom to obtain his testimony. His medical
4
records for prescriptions and the positive drug test did not correlate, leaving the Court to
have serious concerns about his drug use, and his ability to care for H.H.
Based on Mother's history, Father's positive drug screen, and after reviewing the
briefs submitted by the parties, the Court entered its decision on both the adjudication
and the aggravated circumstances on May 15, 2017. (Due to clerical circumstances at
Juvenile Services office, the orders were not sent to counsel until the end of May). The
Court found H.H. to be dependent and found aggravated circumstances with respect to
Mother.
Father failed to attend the first permanency review hearing on June 13, 2017. It
was noted at that hearing that Father had not visited with the child. His mother, paternal
grandmother, also failed to appear at this hearing or offer to take the child in her care.
As previously noted, Mother was incarcerated at the time of the initial
adjudication hearing. She was convicted of abuse of her other child. She was not
ready, willing or able to care for H.H .. Instead, she wanted the child to go with Father.
That was not possible given Father's positive drug screen and lack of credibility
regarding his current drug use.
Mother filed the appeal to this court's decisions on June 16, 2017.
ANALYSIS OF ISSUES RAISED ON APPEAL
Mother has raised three issues on appeal with respect to the Court's decision in
this matter. The Court will discuss each of these issues.
1. The trial court did not err In finding the minor chUd dependent. There
was more than sufficient evidence to support the finding of
dependency.
5
The Court concluded that CYS met its burden of proof for dependency by clear
and convincing evidence that the "child is without proper care of control, subsistence,
education as required by law, or other care or control necessary for his physical, mental
or emotional health, or morals." 42 Pa. C.S. §6302.
At the time the petition was filed, Mother had been found responsible for serious
bodily injury to her other son, C.H. These injuries were life-threatening and if left
untreated for even a few more days, C.H. might have died. Since the abuse was
discovered, and CYS became involved with Mother and C.H., Mother failed to follow up
with any parenting classes or drug and alcohol evaluation, although she attended a drug
and alcohol program while she was incarcerated at the Beaver County jail. There were
no precautions taken to ensure that H.H. would not suffer the same harm as C.H.
Additionally, at the time of the hearing, Mother was incarcerated for abuse C.H. Thus,
she was not able to care for H.H.
In terms of Father, as stated above, the Court was prepared to have H.H. go
home with him and close out the dependency case until he tested positive for drugs.
His testimony regarding his current drug use lacked credibility and concerned the Court.
This Court concluded that, presently, he was in no condition to be a full-time parent to
H.H. Sadly, he has not been involved with the agency, since the initial hearing in this
matter.
Mother's counsel argues that case law does not permit a child to be found
dependent merely because a sibling is dependent. Mother sites two cases, which are
factually different from the case at hand. In both of those cases, the sibling was not the
victim of abuse by the parent.
6
First, Mother relies on the decision in In the Interest of Theresa E., 429 A.2d
1150, 1153 (Pa. Super. 1981) (superseded by statute on other grounds). There, the
lower court noted that the two older children were not physically ill or undernourished,
and they were not abused physically by their parents. Nonetheless, the lower court
determined that they were dependent along with a third child, an infant. No testimony
was offered about the dependency of the infant; the lower court concluded he was
dependent solely on the basis that his siblings were dependent and the children should
not be separated. Id. at 1156. On appeal, the Superior Court noted that there was
virtually no evidence about the youngest sibling, and questionable evidence regarding
the other two children. The court reversed the finding of dependency as to all three
children and remanded for a further hearing. Id. at 1159.
Second, Mother relies on In the Interest of R.T. and A.T, 592 A.2d 55 (Pa. Super.
1991). There, the court observed that the younger child, RT., was not physically
abused, and the perpetrator of the abuse on the older child, A.T., could not be identified.
Under those facts, the appellate court reversed the finding of dependency as to both
children. Id. at 61.
As argued by the GAL, this case is more comparable to In the Interest of S.B.,
833 A.2d 1116 (Pa. Super. 2003), which, coincidentally, is another Beaver County case.
In that case, the parents also argued that one child should not be dependent merely
because the sibling was adjudicated dependent. The court noted that "the error in
appellants' argument and reliance on statutory law and case law dating from 1995 and
earlier is that they fail to take cognizance of the federal and state expansion of
dependency law promulgated in 1997 and thereafter, which is controlling in this case."
7
Id. at 1120. Here, we note that Mother also relies on cases that pre-date the current
dependency law.
In the Interest of S.B., the court found a younger sibling to be defendent, based
on a finding of abuse by a parent to S.B.'s sibling, E.B. The facts indicated that E.B.
was the victim of physical abuse resulting from sexual violence by her father, F.B. The
sexual violence consisted of "indecent contact" as defined in 18 Pa.C.S.A. § 3101. The
indecent contact consisted of E.B. being forced to touch her father's penis and repeated
touching of E.B.'� vagina/genital area on F.B.'s arms and/or legs for the purpose of
arousing sexual gratification. Based on the facts concerning abuse to E.B., the trial
court found aggravated circumstances existed with regard to E.B. The trial court further
concluded that its finding of aggravated circumstances with regard to E.8. had
"significant implications" in making a determination as to whether S.B. was a dependent
child. Id. at 1121.
The court in S.8., concluded that there was clear and convincing evidence that
E.B. was dependent and that aggravated circumstances existed to warrant her
placement in foster care, outside the home. While S.B, was not deemed to be abused
in the home, his condition and the dysfunction of the home were such that the court
deemed it necessary for CYS to supervise the home, and also found him to be a
dependent child. Id. at 1123. The Superior Court agreed with the trial court's
determination as to both children, and affirmed the finding of dependency and .
aggravated circumstances.
Here, the facts before us are similar. Mother was criminally convicted for the
abuse to the older child, C.H. The abuse, including serious bruising and an internal
hematoma, was so severe that the child almost died. Additionally, the Court's finding of
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aggravated circumstances and abuse to the older child, occurred only six months prior
to the birth of H.H. Mother received no services which would indicate that her behavior
or mindset has changed. She did not receive any parenting or drug and alcohol
services, which were approved by CYS, although she did attend drug and alcohol
services in the jail. Under these facts, we believe CYS met its burden and proved by
"clear and convincing evidence" that H.H. ls a dependent dlild.
2. The trial court did not err in finding aggravated circumstances.
Contrary to Mother's contention, that she did not receive notice of CYS's intent to
seek aggravated circumstances in this case, the facts indicate otherwise. CYS gave
notice on January 6, 2017 of its Intention to file an aggravated circumstances petition.
It presented the petition on January 9, 2017, at the same time as the shelter care
hearing. The hearing on the aggravated circumstances and the adjudication of
dependency, were both scheduled for February 7, 2017. On that date, a motion to
continue both hearings was presented and was granted by the Court, because CYS
was still attempting to verify the identity of H.H's biological father. The continuation
order clearly states that both the adjudication and the aggravated circumstances
hearing were continued until March 21, 2017.
Moreover, the aggravating circumstances, in this case, could not be clearer. The
statute defines "aggravated circumstances," in part, as follows:
(2) The child or another child of the parent has been the victim of
physical abuse resulting in serious bodily injury, sexual violence or
aggravated physical neglect by the parent.
***
(5) The parental rights of the parent have been involuntarily
terminated with respect to a child of the parent.
9
42 Pa. C.S. § 6302.
Because Mother's rights with respect to another child were voluntarily terminated,
we agree that section (5) of the definition of "aggravated circumstances" does not apply.
However, section (2) applies squarely to this case. Mother's other child, C.H.,
was the victim of serious bodily injury caused by her neglect. As such, the Court did not
err when it found aggravated circumstances exist with respect to Mother's other child,
H.H.
3. The trial court did not abuse its discretion in ordering that no efforts are
to be made to presetve the family and reunify the mother and the minor
child, where mother voluntarily terminated her rights in a prior case.
Mother complains on appeal that the Court should allow efforts by CYS to reunify
Mother with her child and that failure to do so was an abuse of this Court's discretion.
We disagree. Mother's first child was very badly abused, and no one caring for him
sought medical treatment, until CYS became involved. If not for a tip to CYS, and
follow-up medical treatment, the child could have died from his injuries. This was
significant enough for t�e Court to exercise its judgment to determine that no efforts
need to be made to preserve the family and reunify the Mother and the minor child,
especially when Mother made no efforts and received no services between the finding
of abuse to C.H and the birth of H.H., which would lead the Court to believe that she is a
changed person. The fact that she voluntarily terminated her rights with respect to her
other child does not automatically wipe the slate clean and give her another chance to
be a parent. Her conduct with respect to C.H. was extreme. Moreover, although she
pleaded guilty to child endangerment and simple assault and she was incarcerated for
these crimes, she continues to deny any responsibility for the harm to her son. Instead,
she claims her brother was the perpetrator of the harm. Unfortunately for Mother, her
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own decisions, i.e. her actions and inactions, led the Court to its decision with respect to
H.H. She has no one to blame but herself.
The goal, with respect to Father in this case, is reunification. However, Father
must step up his efforts to be a parent to H.H. over the next several months, or the
Court will be forced, under the Adoption and Safe Families Act, to take further steps
toward permanency for H.H.
BY THE COURT
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