In the Int. of: L.D., Appeal of: T.D. ( 2021 )

J-A27026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.D., MOTHER :
:
:
:
:
: No. 1476 EDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000544-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 16, 2021
T.D. (Mother) appeals from the trial court’s order adjudicating her minor
daughter, L.D. (Child) (born 5/18), dependent and transferring physical
custody of Child from Mother to the Philadelphia Department of Human
Services (DHS). After careful review, we affirm.
On May 17, 2020, DHS received a Child Protective Services (CPS)
investigation report alleging that, while in the care of Mother’s boyfriend, J.R.,1
Child, who was two-years-old at the time, sustained bruising and contusions
to her face, neck, forehead, and chest, as well as an upper-lip laceration.
Mother had left Child in J.R.’s care to go to the hospital after Mother had been
embroiled in a physical altercation with J.R. in which he struck and choked
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1One of J.R.’s friends, Johnathan, a known drug dealer, allegedly came to
Mother’s home and was with J.R. and Child when Mother was at the hospital.
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Mother.2 Mother, who was 25-weeks pregnant with Child’s half-sibling at the
time, suffered abdominal and throat pain and was vomiting blood as a result
of the assault. Mother reported that Child witnessed the altercation and was
visibly distressed by it. When Mother returned home from the hospital five
hours later, the house was in disarray and J.R. appeared to be “high.” J.R.
denied that anything had happened to Child while in his care. Child, who was
upstairs in bed when Mother returned, was lying in a wet puddle and there
were spots of blood on the mattress. Child’s face was very red and swollen.
The following day, after Mother ruled out an allergic reaction and the
once-red areas of Child’s face began to turn black and blue, Mother took Child
to the emergency room at Saint Christopher’s Hospital for Children in
Philadelphia (St. Christopher’s). Norrell K. Atkinson, M.D., a child abuse
pediatrician at Saint Christopher’s, treated Child for the injuries. Doctor
Atkinson testified that the swelling to Child’s forehead was the result of blunt
force trauma and that the petechiae3 bruising on Child’s face, neck, and chest
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2 Mother admitted that she had a history of domestic violence with J.R. She
also admitted to untreated mental health diagnoses (PTSD, major depressive
disorder, bipolar disorder, and anxiety), stated that she had not taken her
medications since May 19, 2019, and had not been in treatment for her mental
health issues since June of 2019. Mother also admitted that J.R. was illegally
using prescription drugs. In fact, the record contains J.R.’s criminal history
summary, which includes convictions for eight drug offenses.
3 Petechiae are red, brown, or purple spots on the skin that occur when blood
vessels bleed into the skin. See
https://www.healthline.com/health/petechiae-when-to-worry (last
visited on 11/23/21). Child abuse involving smothering or strangulation can
(Footnote Continued Next Page)
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could not be sustained accidentally by a two-year-old child. The doctor also
noted that the bruising was the result of a forceful compression injury
indicating that Child suffered from some form of strangulation or occlusion of
her airway. Child’s injuries were “unexplained” and, ultimately, determined
to be “inflicted trauma/child abuse.” Final Report of Norrell K. Atkinson, M.D.,
5/18/20, at 8.
CPS investigated the matter, ultimately indicating J.R. as the
perpetrator of the child abuse. On May 19, 2020, DHS filed an application for
emergency protective custody, alleging Child was without proper care or
control. The court entered an order of protective custody (OPC) and placed
Child in temporary kinship care with maternal great aunt. Following a shelter
care hearing held on May 20, 2020, the court found it was not in Child’s best
interest to return to Mother’s home, granted DHS’ shelter care application,
lifted the OPC and transferred legal and physical custody of Child to DHS.
Mother was referred to the CEU Unit for a drug screen and a dual-diagnosis
assessment.4
On May 27, 2020, DHS filed a dependency petition. On July 2, 2020,
the dependency court entered a one-year protective order ordering that J.R.
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cause petechiae in the eyes and face. Similarly, spanking, biting, and crush
injuries can cause petechiae of the neck, face, and chest. See
https://www.newhealthadvisor.org/petechiae-in-children.html (last
visited 11/23/21).
4 On September 2, 2020, the court appointed counsel for Mother.
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“refrain from any contact[,] directly or indirectly[,] with” Child, including no
telephone, verbal, third-party, eye, written, or physical contact. See
Dependency Court Protective Order, 7/2/20.
On November 16, 2020, the trial court held a contested child abuse
hearing. At the conclusion of the hearing, the court: deferred adjudication
as to Child pending a paternity test for Child’s putative father;5 found Child
was a victim of child abuse with J.R. as the perpetrator, see 23 Pa.C.S. §
6303; granted Mother weekly, supervised line-of-sight visits with Child; noted
that Mother had completed parenting classes; referred Mother to Behavioral
Health Services (BHS) for an evaluation; and ordered Mother to undergo a
drug screen, assessment, and treatment, and receive three random test prior
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5The results of the paternity test reported the probability that J.M. was Child’s
biological father as 99.999999 percent.
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to the next listing.6 In January,7 March,8 May,9 and June of 2021, the court
held four contested adjudicatory/dispositional hearings.
Finally, on June 30, 2021, the court issued an order adjudicating Child
dependent, finding that it was in Child’s best interest to remove Child from
Mother’s home, continuing Child’s kinship care with maternal great aunt, and
transferring legal custody of Child from Mother to DHS. Mother’s weekly,
supervised visits continued, and the placement goal remained “return to
parent.” Order of Adjudication and Disposition, 6/30/21, at 2. Finally, Mother
was ordered to provide the Community Umbrella Agency (CUA) with her
current address, CUA was directed to conduct an assessment on Mother’s
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6 After this hearing, the court also adjudicated Child’s half-brother, E.R., see
infra at 8, n.10, dependent, removed him from Mother’s care and placed E.R.
in DHS’ custody.
7 At the January 12, 2021 hearing, a DHS caseworker testified Mother had
made “substantial progress” with regard to her single case plan objectives:
find stable housing, find employment, engage in trauma-based therapy with
domestic violence, seek a protection from abuse order against J.R., have
supervised visits with Child, enroll in drug and alcohol and mental health
therapy, and cooperate with unannounced home visits. N.T.
Adjudicatory/Dependency Hearing, 1/12/21, at 16-18. In addition, the court
ordered Mother to sign releases to a substance abuse treatment center.
8 At the March 12, 2021 hearing, the court continued kinship care, determining
it to be “best suited to the protection and physical, mental[,] and moral
welfare of [C]hild.” Order, 3/12/21 at 1.
9At the May 11, 2021 hearing, the court continued Child’s placement in kinship
care, again noting that it was best suited to Child’s best interests.
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home and perform unscheduled visits, and Mother was to attend a drug screen
and three random drug tests. Id.
Mother filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On appeal,
Mother presents the following issue for our review:
Did the [c]ourt err in removing [C]hild from Mother’s care where
[DHS] failed to prove by clear and convincing evidence that there
was a clear necessity to remove [C]hild from [M]other’s care, and
where there was not clear and convincing evidence that [C]hild
was without proper parental care by Mother at the time of trial[?]
Appellant’s Brief, at 4.
In reviewing dependency cases, this Court accept the findings of fact
and credibility determinations of the trial court if they are supported by the
record. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
[However,] . . . [we are not] required . . . to accept the [trial]
court’s inferences or conclusions of law. The appellate court
reviews for [an] abuse of discretion. In dependency proceedings
the scope of review is broad.
* * *
Although bound by the facts, the appellate court is not bound by
the trial court’s inferences, deductions, and conclusions
therefrom; the appellate court must exercise independent
judgment in reviewing the court’s determination, as opposed to
its findings of fact, and must order whatever right and justice
dictate.
In the Interest of J.M., 166 A.3d 408, 416 (Pa. Super. 2017) (citations
omitted). See also 42 Pa.C.S. § 6301(b)(3).
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Mother contends that the trial court erred in concluding that Child was
dependent and removing Child from Mother when the evidence was not clear
and convincing that Child was without proper parental care and control and
that it was in Child’s best interest.
The Juvenile Act defines a dependent child, in part, as:
A child who:
(1) 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, including evidence
of the parent’s, guardian’s[,] or other custodian’s use
of alcohol or a controlled substance that places the
health, safety[,] or welfare of the child at risk[.]
42 Pa.C.S. § 6302(1) (emphasis added). 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 the Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997).
Instantly, the trial court held three adjudicatory hearings prior to
declaring Child dependent and removing Child from Mother. The purpose of
an adjudicatory hearing is to determine whether the allegations contained in
a dependency petition are supported by clear and convincing evidence. 42
Pa.C.S. § 6341(c); Pa.R.J.C.P. 1408. “Only after this burden is met, is the
[juvenile] court permitted to proceed to the dispositional hearing, which then
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permits the court to order what is necessary under the circumstances,
including the removal of the dependent child from parental custody.” 42
Pa.C.S. §§ 6341, 6351. It is well-established that:
[A] a child should be removed from his/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 [C]ourt 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 his/her family are
unfeasible. It is not for the appellate court, but for the trial court
as fact finder, to determine whether a child’s removal from his/her
family was clearly necessary.
In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980).
The record reflects that at the time of the adjudicatory/dispositional
hearings, Mother had completed domestic violence and parenting classes, was
in mental health treatment, reportedly attended therapy twice a week, had
moved in with a friend who was willing to accept DHS supervision in her home,
and had supports identified that would assist her with Child and Child’s half-
brother, E.R. (born 8/20),10 if they were returned to her care.
Dawn Rodriguez, a case management director for Turning Points for
Children, testified at the June 2021 adjudicatory hearing that Mother had been
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10 On August 29, 2020, DHS received a report alleging that during prenatal
visits, Mother had tested positive for marijuana. In November of 2020, E.R.
was declared dependent, based on Mother’s inability to adequately care for
E.R., and was placed in the legal custody of DHS while E.R. remained in kinship
care with paternal great aunt. J.R. is the biological father of E.R. In August
of 2021, our Court affirmed E.R.’s adjudication of dependency. See In the
Interest of E.R., No. 2324 EDA 2020 (Pa. Super. filed Aug. 16, 2021)
(unpublished memorandum decision).
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discharged in May 2021 from drug and alcohol treatment for “noncompliance;”
Rodriguez had concerns that Mother may have been using drugs other than
marijuana. Rodriguez also testified that while Mother told her she planned to
move into a new home, Mother had not provided CUA with an address. Finally,
Rodriguez testified that she was concerned that Mother was still in a
relationship with J.R., the indicated perpetrator of abuse against Child.
DHS social worker Shaylin Crayder testified that in August of 2020,
Mother told her that she did not believe J.R. caused any harm to Child, despite
him being indicated as the perpetrator of Child’s abuse. Crayder raised
concerns about the altercation that allegedly occurred between Mother and
J.R., which ultimately caused Mother to vomit blood and required her to go to
the hospital, leaving Child alone at home with J.R. Finally, like Rodriguez,
Crayder was concerned that Mother was still in a relationship with J.R.
To support its adjudication/dependency order the court noted:
The [c]ourt heard clear and convincing evidence from Dr.
Atkinson, DHS [s]ocial [w]orkers Ms. Stephanie English and Ms.
Shaylin Crayder, and CUA [c]ase [m]anager Ms. Tamara Sledge[11]
that [Child]’s health and safety were at risk due to Mother’s
present inability to provide adequate care for [Child]. During the
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11 Sledge testified at the May 11, 2021 adjudicatory/dispositional hearing that
Mother had “moderately” complied with her single case plan objectives of
finding employment (Mother was self-employed “making scrubs and body
essentials”), housing (Mother was “living from friend-to-friend’s house”),
continuing to visit with Child at CUA, completing parenting classes and drug
and alcohol counseling, and enrolling in domestic violence treatment. N.T.
Adjudication/Dispositional Hearing, 5/11/21, at 32-35. Ms. Sledge also
testified that Mother had “substantially” progressed with regard to her plan,
noting that Mother has refused to give CUA the address where she was living.
Id. at 35, 47.
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hearings, DHS [i]nvestigative [s]ocial [w]orker[,] Ms. English[,]
reported that Mother left [Child] in the care of [] J.R. while Mother
went to the hospital following an altercation with J.R. When
Mother arrived home several hours later, [Child] had suffered
various injuries. Ms. English testified that DHS received a CPS
report in May of 2020 regarding [Child]’s injuries that were
assessed and treated by Dr. Atkinson[]. The injuries observed by
Dr. Atkinson included redness, swelling, bruising, and petechiae
bruises to [Child]’s face, neck[,] and chest areas, as well as
swelling to the front of her scalp and a “busted lip.” When Mother
arrived home from the hospital, she also found [Child] lying in her
bed in soiled sheets and there were blood spots on the sheets.
D[octor] Atkinson stated in her assessment that the types of
injuries sustained by [Child] are not the type that a child of
[Child]’s age could have sustained accidentally. D[octor] Atkinson
testified that[,] in her opinion[,] to a reasonable degree of medical
certainty[,] [Child]’s diagnos[i]s was child physical abuse. Ms.
English notes that the CPS report named [Child], as the child
victim and indicated J.R. as the perpetrator of [Child]’s injuries.
DHS Social Worker Ms. Crayder testified that she was assigned to
investigate a GPS report in August of 2020 immediately after
Mother gave birth to [Child’s] sibling, E.R. Ms. Crayder testified
that she was concerned because Mother did not believe J.R.
caused any harm or injury to [Child] despite him being named as
the perpetrator in the CPS report. Ms. Crayder also testified that
she was concerned because of the altercation that occurred
between Mother and J.R.[,] which led to Mother being
hospitalized. Ms. Crayder further testified that she was concerned
that Mother and J.R. were still in a relationship, Mother had an
unstable housing status[,] and [because of] Mother’s mental
health history. CUA [c]ase [m]anager, Ms. Sledge[,] also testified
that she was concerned with Mother still being in a relationship
with J.R. and expressed concerns about Mother’s ability to
maintain the wellbeing of [Child,] as well as Mother’s own
wellbeing[,] should [Child] be returned to Mother.
After hearing the evidence presented, this Court found that DHS
had met its burden of showing by clear and convincing evidence
that [Child] met the definition of “dependent child” pursuant to 42
Pa.C.S.A. § 6302 and was without proper parental care.
Similarly[,] such proper parental care was not immediately
available due to Mother’s relationship with J.R., her disbelief that
J.R. was the perpetrator of [Child]’s injuries[,] and Mother’s
unstable housing status, substance use, and mental health
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history. The testimony heard by this [c]ourt was clear and
convincing that [Child]’s health and safety were at risk, and
therefore [Child] was adjudicated dependent.
* * *
[With regard to Child’s continued placement in kinship care, t]his
court was greatly concerned by Mother’s denial and disbelief that
J.R. had caused any harm or injury to [Child,] despite the evidence
and that he was the named perpetrator of [Child’s] injuries in the
indicated CPS report. This court was also concerned with Mother’s
conflicting statements about whether there was domestic violence
in her relationship with J.R. This [c]ourt heard testimony from
Ms. Sledge and Ms. Crayder[,] reporting that Mother claims there
were no instances of domestic violence in her relationship with
J.R.[,] even though an altercation occurred between Mother and
J.R. which resulted in Mother being taken to the hospital while she
was pregnant. The [c]ourt’s finding of clear and convincing
evidence that J.R. was the perpetrator or physical abuse of
[Child,] as well as Mother’s denial of J.R.’s involvement, was part
of this [c]ourt’s reasoning for adjudicating [Child] dependent.
Additionally, this [c]ourt was concerned with Mother’s housing
status and Mother’s drug history and alcohol use. The [c]ourt
found Mother lacked the ability to provide adequate care for
[Child] should [Child] be returned to [Mother’s] care. The [c]ourt
determined that a return to Mother would create a health and
safety risk for [Child], and thus it would be in the best interest of
[C]hild for her to remain in kinship care with [] maternal great
aunt.
Trial Court Opinion, 8/20/21, at 16-17, 19.
A parent’s “acts and omissions should weigh equally” in determining
whether proper parental care has been exercised. In re R.W.J., 826 A.2d
10, 14 (Pa. Super. 2003). In addition, “there exists a duty to protect the child
from harm that others may inflict.” Id. Prognostic evidence, such as using
prior conduct to determine whether a parent may pose a safety risk, is
sufficient to find a child dependent. Id. Moreover, while the fact that a
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sibling has been found to be dependent is not sufficient by itself to find a child
dependent, the trial court may consider the conduct toward other siblings in
determining whether a parent is a safety risk or can provide proper parental
care. In re E.B., 83 A.3d 426, 433-34 (Pa. Super. 2013).
Instantly, Mother left Child alone at home with J.R., a known perpetrator
of domestic abuse, while she went to the hospital to address injuries she
sustained following her own altercation with J.R. When Mother returned from
the hospital, Child was bleeding from her neck, forehead, and face. Medical
evidence showed that Child had suffered non-accidental, non-self-inflicted
injuries and that J.R. was indicated as the abuser. In addition, Mother
admitted she had not secured stable housing at the time of the adjudicatory
hearings and that she had significant mental health diagnoses interfering with
her ability to properly parent Child. Based on this evidence, we conclude that
the trial court did not abuse its discretion when it determined that Child was
dependent.
Moreover, the testimony elicited at the three adjudicatory hearings
established the clear necessity that it “would be contrary to [Child’s] welfare,
safety or health” for her to continue to live in Mother’s home. 42 Pa.C.S. §
6351(b)(1). “[N]ecessity is established when the court has considered
alternative dispositions which would allow the child to remain with his parents
and determined that those alternatives to separation are unfeasible.” In the
Interest of Justin S., 543 A.2d 1192, 1198 (Pa. Super. 1988). Finally, in
order to remove a child from his or her parents a court must also find that
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“reasonable efforts were made prior to the placement of [C]hild to prevent or
eliminate the need for removal of [C]hild from his home[.]” 42 Pa.C.S. §
6351(b)(2).
Here, the trial court found credible the testimony from DHS social
workers that Mother had denied that J.R. was the perpetrator of abuse to Child
and that they were concerned that J.R. was still in Mother’s life at the time of
the final hearing. See Trial Court Opinion, 8/20/21, at 17-19. Moreover, the
court placed significant weight on the fact that Mother had an unstable housing
situation, had ongoing substance abuse and mental health issues, and had
failed to document her engagement in mental health services. In totality, the
testimony supports the conclusion that if Child continued to live in Mother’s
home, it “would be contrary to [Child’s] welfare, safety or health.” 42
Pa.C.S.A. § 6351(b)(1). Mother’s inability to ensure that she could provide
Child with an environment free of future violence by J.R. necessitated Child’s
placement and ultimate removal from Mother’s home. See N.T. Child Abuse
Hearing, 11/16/20, at 85-88 (family service worker testifying that she had
concerns regarding Mother’s ability to protect Child and that Mother “would
not have [Child’s] best interest” in mind; worker also expressed concerns
about Mother’s temper); id. at 60 (DHS social worker testifying Mother did
not believe J.R. had caused any harm to Child, but that she believed J.R.’s
friend may have been perpetrator). That necessity is further supported by
the fact that Child’s half-sibling had been declared dependent and removed
from Mother’s care at the time of the adjudicatory hearings. In re E.B.,
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supra. Finally, the record demonstrates that DHS’ efforts to prevent Child’s
removal and placement were more than reasonable. 42 Pa.C.S.A. §
6351(b)(2). See In re R.J.T., supra at 1190 (we defer to juvenile court’s
credibility determinations absent abuse of discretion).
Order affirmed.
President Judge Panella joins this Memorandum.
Judge Dubow did not participate in the consideration or decision of this
matter.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2021
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