In the Interest of: A.L., Appeal of: A.L. ( 2014 )

J-A23014-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: A.L., A MINOR : IN THE SUPERIOR COURT OF
CHILD : PENNSYLVANIA
:
:
:
APPEAL OF: A.L. No. 249 WDA 2014
Appeal from the Order January 14, 2014,
Court of Common Pleas, Washington County,
Criminal Division at No. CP-63-DP-0000021-2012
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 03, 2014
Amber L. (“Mother”) appeals from the order entered by the
Washington County Court of Common Pleas (the “juvenile court”) on January
14, 2014, removing A.L., born in May 2008, from Mother’s home and placing
her in relative foster care. For the reasons that follow, we affirm.
A summary of the facts and procedural history follows. Mother and
Aaron L., A.L.’s father (“Father”), were married in 2005. While Mother was
pregnant with A.L., Father was sent to serve in Iraq with the United States
Marine Corp. N.T., 1/14/14, at 431. A.L. was born approximately five
months before Father returned from duty. Id. at 432. Due to difficulties in
adjusting to Father’s return from military service, Mother and Father
separated in February 2011, at which time Mother and Father agreed to a
joint custody arrangement of A.L.
After a few months passed, Mother began to make reports to
Washington County Children and Youth Social Services (“CYS”) that Father
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physically, mentally, and sexually abused A.L. The first report of physical
abuse was made by Mother on May 20, 2011. On June 3, 2011, Mother filed
for and obtained a temporary protection from abuse order (“PFA”) against
Father. The PFA ordered all contact between Father and A.L. to be
supervised.
Mother reported that Father again physically abused A.L. on July 6,
2011 and psychologically abused the child on August 12, 2011. In
December 2011, the PFA court terminated all contact between Father and
A.L. and ordered a forensic interview following new allegations by Mother
that Father sexually abused A.L. After all reports were deemed unfounded,1
however, the PFA court dismissed the PFA on January 31, 2012, and
reinstated the original custody agreement between Mother and Father.
On February 6, 2012, CYS presented an emergency shelter petition to
the juvenile court, requesting an order of no contact between Father and
A.L. and that A.L. participate in sexual assault victim counseling. The
juvenile court granted the petition. On March 13, 2012, CYS filed a
dependency petition (“the Petition”). Because of multiple continuances, a
merit hearing on the Petition was not held until January 28, 2013. During
that time, Mother made three additional reports of sexual abuse on March
16, 2012, March 29, 2012, and April 12, 2012. According to the allegations,
1
An unfounded report is defined as: “Any report made pursuant to this
chapter unless the report is a ‘founded report’ or an ‘indicated report.’
23 Pa.C.S.A. § 6303(a).
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on March 29, 2012, Father put his penis by A.L.’s mouth and made her suck
on her fingers while his penis touched her mouth. On April 12, 2012, Father
used scissors to make A.L.’s vagina and rectum bleed. A.L. never received a
medical examination following this disclosure.
At the dependency hearing on January 28, 2013, the juvenile court
adjudicated A.L. dependent and ordered that A.L. remain in Mother’s home.
The juvenile court also ordered Mother and Father to participate in
psychological and interactional evaluations with A.L., to be performed by Dr.
Neil Rosenblum (“Dr. Rosenblum”), Mother and Father to participate in a
sexual boundary assessment, and continued the existing no contact order
between Father and A.L. pending the evaluation by Dr. Rosenblum.
The juvenile court conducted a review hearing on April 15, 2013. At
the hearing, CYS, Mother, Father, and the guardian ad litem stipulated to
accept the recommendations provided by Dr. Rosenblum in his evaluation
report. Dr. Rosenblum’s report was given to the juvenile court. The court
ordered continued dependency, Father and A.L. to participate in reunification
therapy sessions followed by supervised visits, A.L.’s trauma therapy with
Dr. Ventura to discontinue, and prohibiting Mother and Father from speaking
negatively about the other parent in the presence of A.L.
In June 2013, Father and A.L. began meeting for a weekly visit at
Mingo Park. At the review hearing held on September 24, 2013, CYS
recommended that the weekly visits occur at Father’s home. The juvenile
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court granted the request, permitting Father and a case aide to pick A.L. up
from school on Tuesdays and take her to Father’s house for their visit.
Reports by CYS indicated that although A.L. had fun at Father’s house,
A.L. made several statements indicating that Mother did not want her to
enjoy the visits. At one visit, A.L. got sidewalk chalk on her clothes. A.L.
became extremely upset and stated “Oh, no, now they are going to know I
played with dad.” N.T., 9/24/13, at 45. On another occasion, when Father
told A.L. it was time to clean up and meet Mother, A.L. began crying and
shaking saying that she was going to be in trouble for being at Father’s
house and eating food from him that was not bought from a restaurant. At
yet another visit, A.L. stated that she did not want Mother to know she
played in the snow.
On October 15, 2013, Mother called Officer Fendya of the Carroll
Township Police Department to report that A.L. told her on the way home
from a visit with Father that Father put his hands down her pants and hurt
her. Mother also reported that A.L. told her that the CYS case aide saw
Father put his hands down A.L.’s pants and simply told him to stop and not
to do that again. Officer Fendya’s report stated that Mother was hysterical
as she informed him of the allegations. A ChildLine report was made and
CYS was notified of the allegations. The CYS case aide denied that any
physical contact between Father and A.L. occurred, let alone inappropriate or
sexual contact.
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A forensic interview with A.L. occurred on November 7, 2013. A.L. did
not disclose anything about the incident on October 15, 2013, but claimed
that Father put his fingers in her vagina and made her suck his penis when
she was two years old. When questioned, A.L. could not describe a penis.
On January 14, 2014, the juvenile court held a permanency review
hearing. At the conclusion of the hearing, the court made a ruling from the
bench and issued an order. The juvenile court found Mother to be a
perpetrator of emotional and psychological abuse by clear and convincing
evidence. Order of Court, 1/14/14. The juvenile court also found that A.L.
continued to be dependent, removed her from Mother’s home, and placed
her in relative foster care. Id. The juvenile court ordered A.L. to undergo
psychiatric and psychological evaluations, ordered Mother and Father to
continue with independent counseling, and ordered that Mother and Father
partake in separate, supervised, non-overnight visitation with A.L. Id. A
review hearing was scheduled to take place in 60 days. Id.
On February 12, 2014, Mother filed a timely notice of appeal.2 On
appeal, Mother raises the following issues for our review:
2
We note that this case was delayed for panel listing as a result of a
transcript delay. The certified record was due to this Court by March 14,
2014. On March 27, 2014, the chambers of the Honorable Katherine Emery
of the Washington County Court of Common Pleas informed this Court that
there was a delay with the transcripts. Her Honor indicated that the court
reporter had completed only 75 of approximately 550 pages of transcripts.
A delinquent record notice was issued by this Court’s Prothonotary on April
15, 2014. This Court did not receive the certified record until April 29, 2014.
On May 19, 2014, Mother requested an extension of time to file her
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1. Whether the Juvenile Court erred as a matter of law
and abused its discretion in finding that there was
clear and convincing evidence that [A.L.] is the
victim of emotional and psychological abuse being
perpetrated by Mother, inter alia, in light of the
testimony and opinions by Elizabeth Ventura, Ph.D.
and [A.L.]’s disclosures of abuse and behaviors?
2. Whether the Juvenile Court erred as a matter of law
and abused its discretion in finding that it was in the
best interest of [A.L.] to remove [A.L.] from Mother’s
home?
3. Whether the Juvenile Court erred as a matter of law
and abused its discretion in finding that [CYS] used
reasonable efforts to prevent the necessity of
placement outside of [A.L.]’s home?
4. Whether the Juvenile Court erred as a matter of law
and abused its discretion in admitting and placing
any weight on Dr. Rosenblum’s report when Dr.
Rosenblum was not available to testify and subject to
cross-examination?
Mother’s Brief at 4.
For her first issue on appeal, Mother challenges the juvenile court’s
finding that she is a perpetrator of child abuse. Our standard of review of a
juvenile court’s decision in a dependency action is as follows:
[T]he standard this Court employs is broad. We
accept the [juvenile] court’s factual findings that are
supported by the record, and defer to the court’s
credibility determinations. We accord great weight
to this function of the hearing judge because [s]he is
in the position to observe and rule upon the
credibility of the witnesses and the parties who
appear before [her]. Relying upon [her] unique
appellate brief. This Court granted the request, requiring Mother’s brief to
be filed on or before June 2, 2014. Mother complied and all appellees timely
filed their responsive briefs.
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posture, we will not overrule [the juvenile court’s
findings] if they are supported by competent
evidence.
In re R.P., 957 A.2d 1205, 1211 (Pa. Super. 2008) (internal citations
omitted).
Determinations of child abuse are governed by 23 Pa.C.S.A. §
6303(b). Section 6303(b)(1)(ii) provides that child abuse shall mean “an act
or failure to act by a perpetrator which causes nonaccidental serious mental
injury to or sexual abuse or sexual exploitation of a child under 18 years of
age.” 23 Pa.C.S.A. § 6303(b)(1)(ii). Serious mental injury is defined as:
A psychological condition, as diagnosed by a
physician or licensed psychologist, including the
refusal of appropriate treatment, that:
(1) renders a child chronically and severely
anxious, agitated, depressed, socially
withdrawn, psychotic or in reasonable fear that
the child’s life or safety is threatened; or
(2) seriously interferes with a child’s ability to
accomplish age-appropriate developmental and
social tasks.
23 Pa.C.S.A. § 6303(a).
In this case, the juvenile court found, “by clear and convincing
evidence, that there is emotional and psychological abuse being perpetrated
by [M]other at this time.” Juvenile Court Order, 1/17/14, at 1-2. In support
of its determination, the juvenile court made the following findings of fact.
First, the juvenile court “concluded that the Father never sexually mistreated
[A.L.].” Juvenile Court Opinion, 4/23/14, at 7. The juvenile court found
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A.L.’s behavior during the visits with Father to be “most revealing.” Id.
“When [A.L.] had fun with [] Father, she asked the caseworker not to tell
her Mother. [A.L.] states she should not eat food during the visit unless it is
from a restaurant. [A.L.]’s behavior changes dramatically leaving the visits.
[A.L.] experienced extreme behaviors before court hearings.” Id. In
addition, the juvenile court found:
[A.L.] can throw a tantrum at a moment’s notice and
then stop. [A.L.] has referred to the Father as a
pedophile. [A.L.]’s allegations against the Father
appeared to be canned and prepared. While she
stated she was forced to lick her Father’s penis,
[A.L.] was unable to describe a penis or provide any
detail. [A.L.] made repeated allegations and was
able to tell multiple people, but she always used the
same words in the same order. This is evidence that
[A.L.] was coached.
Id. at 9.
The juvenile court “concluded that Mother has manipulated [A.L.] to
such an extreme that she will say and do almost anything” and “that Mother
has told [A.L.] that the Father has done these bad things to her.” Id. at 9.
As a result, the juvenile court concluded that the evidence of record “leads
to a logical conclusion that the Mother is victimizing [A.L.] into falsely
believing that her Father is an evil person. This constitute[s] emotional and
psychological abuse.” Juvenile Court Opinion, 4/23/14, at 11.
Mother, challenging the weight of the evidence presented at the
permanency review hearing, asserts that the juvenile court’s finding was
made in error “in light of the testimony and opinions by Elizabeth Ventura,
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Ph.D. (“Dr. Ventura”) and [A.L.]’s disclosures of abuse and behaviors.”
Mother’s Brief at 14. At the permanency review hearing, Dr. Ventura, a
licensed professional counselor, testified that A.L. began counseling with her
in October 2012. N.T., 1/14/14, at 509. Dr. Ventura testified that she
diagnosed A.L. with post-traumatic stress disorder (“PTSD”). Id. at 514.
According to Dr. Ventura, “In working with [A.L.], very early on she was – it
was clear she had demonstrated some significant PTSD symptoms.” Id.
These symptoms “were spontaneous and by all accounts, by [Dr. Ventura’s]
professional opinion, not something that was rehearsed or coached.” Id. at
564. Dr. Ventura further explained that “[t]here were spontaneous
interventions that [she] put in place in therapy that elicited responses from
[A.L.] that nobody would have been able to know about.” Id.
The juvenile court states that it did not find Dr. Ventura’s testimony to
be believable or credible regarding her conclusion that A.L. had not been
coached because, according to the court, Dr. Ventura “never considered the
possibility that Father did not abuse [A.L.]” and because “Dr. Ventura
accepted as true all that Mother reported.” Juvenile Court Opinion, 4/23/14,
at 11-12. Nevertheless, the juvenile court states that it “considered Dr.
Ventura’s testimony as well as all of the other testimony and evidence in
the case in making [its] decision.” Id. at 12.
As previously stated, we are bound by the juvenile court’s credibility
determinations. In re R.P., 957 A.2d at 1211. The court’s finding in this
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regard is supported by the record, as it reflects that Dr. Ventura never spoke
with Father or the CYS caseworker, nor was she aware that the forensic
evaluator found that A.L. had been coached. N.T., 1/14/14, at 531-32, 555.
Indeed, when asked, Dr. Ventura indicated that an allegation that A.L. had
been coached would give her “pause” and cause her to “look more closely at
the disclosures[,]” id. at 556, and that it was possible A.L. was disclosing
that Father abused her when in fact he had not. Id. at 556-57.
Furthermore, our review of the record, including the testimony
provided by Dr. Ventura, supports the juvenile court’s finding that Mother
was a perpetrator of abuse. The evidence establishes that A.L. is
“chronically and severely anxious, agitated […] or in reasonable fear that
[her] life or safety is threatened.” 23 Pa.C.S.A. § 6303(a). Numerous
witnesses testified with regard to A.L.’s chronic and severe anxiety. Dr.
Ventura testified that A.L. “was always very much fixated on her safety.”
N.T., 1/14/14, at 517. Dr. Ventura testified that on one occasion, during
therapy, A.L. suddenly had a panic attack. Id. at 516. A.L. became
extremely panicked, began crying and breathing heavily, crawled in a fetal
position, said she was scared, and hid behind [the] couch.” Id. According
to Dr. Ventura, A.L. “had a very sensitive startle response,” which caused
her to become on guard at any noise. Id. at 517. In addition, A.L. was
often in a state of hyper vigilance, such as refusing to sit by the door. Id. at
517.
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CYS case aides testified that A.L. “seems like she’s conflicted when she
plays with her father, like should she play with him, should she not. There is
definite turmoil within her.” N.T., 9/24/13, at 13. As previously discussed,
A.L. often demonstrated that she was fearful that she would be in trouble for
being at Father’s house, playing with Father, and eating food at Father’s
house. A.L.’s entire demeanor would change when it was time for her to
leave Father’s house and return to Mother. N.T., 1/10/14, at 45. The record
reflects that A.L. would smile and laugh as she interacted with Father, but
when she was asked if she had fun, her answer was always “no.” Id. at 56.
In addition, the evidence establishes that A.L.’s ability to accomplish
age-appropriate developmental and social tasks has been disrupted. A.L.
demonstrates regressive behaviors such as wetting the bed. N.T., 9/24/13,
at 67, 70. Moreover, A.L. converses about subject matter that normal five
and six year olds do not typically engage. A.L. has stated that “she has had
to speak with all these doctors […] so her dad could go to jail.” N.T.,
1/10/14, at 67. Matthew Tutee, the reunification counselor, testified that it
was unlikely for a five year old to independently come up with that
statement. Id. at 263. According to Christina Tatar, “[A.L] was [also] able
to articulate in words what progress was going to occur on the case.” N.T.,
9/24/13, at 26-27.
Thus, the evidence of record supports the juvenile court’s
determination that A.L. suffers from serious mental injury that renders her
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“chronically and severely anxious, agitated, depressed, socially withdrawn,
psychotic or in reasonable fear that [her] life or safety is threatened” and
also that the abuse has interfered with her ability “to accomplish age-
appropriate developmental and social tasks.” 23 Pa.C.S.A. § 6303(a)(1),
(2).
The evidence further supports a finding that Mother is the perpetrator
of this abuse. Mother asserts that there was not clear and convincing
evidence that she is the perpetrator of the abuse because
[t]he [j]uvenile [c]ourt stated that it does not know
why [A.L.] is making these statements, whether
Mother or maternal grandmother prompt [A.L.] to lie
or whether this is [A.L.] making these statements on
her own and is doing this to please Mother or was
taught to believe this happened.
Mother’s Brief at 14. Mother further argues that despite concerns that
another person may have influenced A.L., there was no testimony identifying
Mother as the person influencing her. Id. at 21.
In cases such as this, where there is no direct evidence to identify the
perpetrator of abuse, but the child was in a particular caretaker’s care when
the abuse occurred,3 this Court has relied upon the evidentiary presumption
in 23 Pa.C.S.A. § 6381, which provides:
3
Mother cites to this Court’s recent en banc decision in In the Matter of
L.Z., 91 A.3d 208 (Pa. Super. 2014) (en banc), appeal granted, 96 A.3d 989
(Pa. July 17, 2014), in support of her argument that she was not a
perpetrator of abuse against A.L. We find this case to be distinguishable
from the instant matter because in L.Z., the single act of physical abuse
occurred at a time that the child was not in the mother’s care. Id. at 217-
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(d) Prima facie evidence of abuse.—Evidence
that a child has suffered child abuse of such a nature
as would ordinarily not be sustained or exist except
by reason of the acts or omissions of the parent or
other person responsible for the welfare of the child
shall be prima facie evidence of child abuse by the
parent or other person responsible for the welfare of
the child.
23 Pa.C.S.A. § 6381(d).
Thus, once a court determines by clear and convincing evidence that a
child was abused while the child was in a particular caregiver’s care, “its
finding as to the abusers need only be established by prima facie evidence
that the abuse normally would not have occurred except by reason of acts or
omissions of the caretakers.” Interest of J.R.W., 631 A.2d 1019, 1023-24
(Pa. Super. 1993); 23 Pa.C.S.A. § 6381(d). The language of § 6381(d)
“simultaneously encompass[es] both the singular and plural [such that]
proof of the nature of the child’s harm, alone, is prima facie evidence of child
abuse by anyone and/or all who are found to be ‘responsible for the
welfare of the child’ during the time of the alleged injuries.” In re
J.G., 984 A.2d 541, 547 (Pa. Super. 2009) (emphasis added) (citation
omitted).
In J.R.W., the trial court adjudicated J.R.W. dependent and found that
the child was the victim of abuse. J.R.W. had multiple rib fractures, swelling
18. In the case presently before this Court, the record establishes that A.L.
resided with Mother at the time of the ongoing abuse and that Mother was
A.L.’s primary caretaker. N.T., 9/24/13, at 11, 188. Accordingly, In the
Matter of L.Z. is inapposite to the case herein.
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and hemorrhaging in the left side of her brain, blood inside of her central
nervous system, seizures, and required ventilator support. Id. at 1020-21.
“[M]edical evidence established that J.R.W.’s injuries were consistent with
child abuse and that she could be classified as a ‘shaken baby.’” Id. at
1021. “[A]lthough the trial court was unable to determine whether one or
both of J[.]R[.]W[.]’s parents were the perpetrators of the abuse, it found
that the life-threatening injuries were sustained while in her parents’ care.”
Id. at 1021.
On appeal, J.R.W.’s parents contested the trial court’s finding that they
were the perpetrators of abuse because “there was not clear and convincing
evidence that one or the other of the parents caused the serious injuries to
the child.” Id. This Court affirmed the trial court’s holding, stating:
The Legislature has determined that the likelihood
clearly established abuse has occurred, other than at
the hands of the custodian, is so small that prima
facie evidence the custodian has caused the injury,
either by acts or omissions, is all that is required.
We find no defect in this reasoning. Such a standard
provides maximum protection for the child victim
[…]. It is not equivalent to a finding of guilt in a
criminal proceeding which could result in deprivation
of freedom. Thus[,] the legislature has balanced the
needs of society and children for protection against
the abuser’s possible patterned behavior and his/her
right to freedom unless found guilty beyond a
reasonable doubt.
Id. at 1024. We then concluded that in light of the clear and convincing
evidence of abuse against J.R.W. and the unquestioned prima facie evidence
establishing the parents as the primary custodians during the time of the
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abuse, “[t]he trial court did not err in making the finding of child abuse and
naming the parents as the abusers.” Id. at 1025.
In the instant matter, the juvenile court, much like the court in
J.R.W., could not determine who perpetrated the abuse against A.L.
However, the evidence presented at trial established that A.L. was abused,
that A.L. resided with Mother at the time the ongoing abuse occurred, and
that Mother was A.L.’s primary caretaker. N.T., 9/24/13, at 11, 188.
Accordingly, we conclude that the juvenile court did not err in finding that
Mother was the perpetrator of abuse against A.L..
For her second and third issues on appeal, Mother argues that the
juvenile court erred and abused its discretion in finding that it was in A.L.’s
best interest to remove A.L. from Mother’s home and that CYS used
reasonable efforts to prevent the necessity of placement outside of the
child’s home. Mother’s Brief at 21-25. Because these issues are related, we
review them together.
Under the Juvenile Act, once a court adjudicates a child dependent,
the trial court must enter an order of disposition determining custody of the
child. The juvenile court may order any of the following:
(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.
(3) Without making any of the foregoing orders
transfer custody of the child to the juvenile court of
another state if authorized by and in accordance with
section 6363 (relating to ordering foreign
supervision).
42 Pa.C.S.A. § 6351(a). The court’s disposition must be “best suited to the
safety, protection and physical, mental, and moral welfare of the child.” Id.
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Before the court may remove a child from his or her parent, however,
section 6351(b) requires the court to enter, inter alia, the following findings
on the record:
(1) that continuation of the child in his home would
be contrary to the welfare, safety or health of the
child; and
(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; []
***
42 Pa.C.S.A. § 6351(b)(1), (2). Thus, in accordance with section 6351(b),
“even after a child properly has been determined to be dependent […]
[r]emoval may be ordered only where the evidence demonstrates a clear
necessity for removal.” In re A.L., 779 A.2d 1172, 1175 (Pa. Super. 2001).
“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 J.J., 69 A.3d
724, 730 (Pa. Super. 2013) (citing In re G.T., 845 A.2d 870, 873 (Pa.
Super. 2004)).
In this case, the juvenile court stated at the conclusion of the
permanency review hearing that removing A.L. from Mother’s home would
be in the child’s best interest. N.T., 1/14/14, at 629-30. Mother argues that
the juvenile court abused its discretion in removing A.L. from her home by
“applying the best interest standard and not the clearly necessary standard
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as required.” Mother’s Brief at 22. Mother asserts that had the juvenile
court applied the clearly necessary standard, the evidence of record would
be insufficient to satisfy the standard because the child’s basic needs are
met, the child is bonded with Mother, and Mother complied with every court
order and followed the recommendations of the child’s therapists. Id. at 22-
23.
We begin by noting that although the juvenile court used the words
“best interest,” it stated the proper “clear necessity” standard in its written
opinion. Juvenile Court Opinion, 4/23/14, at 13. Furthermore, the juvenile
court employed the “clear necessity” standard in deciding to remove A.L.
from Mother’s care. It found that “the status quo was posing a real danger
to the child” and to the child’s mental health. Id. The juvenile court also
found that Mother has manipulated A.L. “to such an extreme that she will
say and do almost anything.” Id. at 9. The juvenile court concluded that
“removal of [A.L.] was the last resort but the only choice at the hearing” and
that “removal to prevent further emotional harm was necessary.” Id. at 10,
13.
The record supports this determination. Testimony at the permanency
review hearing revealed that A.L.’s disclosures of abuse are “always in the
same sequence. It goes from daddy hit me in the head with a shoe to [he]
put his finger in my bum and vagina, and then the next step is he put yogurt
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on my back[4] and he has germs on his hands.” N.T. 1/10/14, at 175. In
addition, despite A.L.’s allegations that Father made her suck his penis, A.L.
stated that she had never seen a penis and could not describe a penis when
questioned. Id. at 176. Moreover, although Mother testified that she did
not coach A.L., she admitted that after A.L. disclosed the October 15, 2013
incident wherein Father stuck his hands down her pants in front of the CYS
case aide, she told A.L. that she was proud of her, called the police to report
the incident, crying hysterically, and subjected A.L. to a forensic interview,
even though Mother did not believe this reported abuse occurred. N.T.,
1/14/14, at 383-85.
A CYS caseworker testified at the permanency review hearing that
A.L.’s well-being and emotional health has gotten worse as the case has
gone on. N.T., 1/10/14, at 208-09. A.L. would repeatedly have outbursts
while playing with Father, accusing him of hurting her or lying to her. See
id. at 51; N.T., 1/14/14, at 459-59. These outbursts culminated one week
prior to the permanency review hearing, when A.L. had a meltdown during a
visit with Father. A.L. suddenly got up from watching cartoons with her
Father and began yelling that Father lied to her, that he is still lying to her,
and that he hurt her when she was two years old. N.T., 1/10/14, at 62.
4
Dr. Ventura testified that A.L. disclosed to her that Father “made her take
her clothes off and he had smeared, in her words, yogurt on her face and on
her body.” N.T., 1/14/14, at 518-19. When Dr. Ventura asked her if it was
the same yogurt that she eats for breakfast, “[s]he said, no, it wasn’t what I
eat for breakfast, it was yucky…it looked like yogurt and I don’t want to talk
about it anymore.” Id. at 519.
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She then ran down the hallway, ripped the bedding off Father’s bed, dumped
a cup of pens, ran to other rooms in the house and dumped her toys. Id. at
62-63. A.L. went to the spare bedroom, laid on the bed, took a few deep
breaths, jumped off the bed, and began cleaning her toys up, and proceeded
as if nothing had happened. Id. at 64.
There have been 18 reports of abuse against Father with A.L. as the
victim. N.T., 1/10/14, at 204; Juvenile Court Opinion, 4/23/14, at 11.5 By
Mother’s own admission, the majority of these reports were unfounded, and
those that were at one time indicated were subsequently expunged.
Mother’s Brief at 11. A.L. has received counseling from four separate people
and has been interviewed by the Child Advocacy Center 10 times. N.T.,
1/14/14, at 625. Despite the counseling and reunification efforts, there has
been no progress in the case. In fact, the record reflects that there has
been a decline in progress and in A.L.’s emotional health. After our review
of the record, we conclude that the record supports the juvenile court’s
determination that the status quo was posing a danger to A.L. and that
removing her from the Mother’s home was necessary.
Further, in accordance with the requirements of section 6351(b)(2),
the juvenile court found that reasonable efforts were made to prevent the
removal of A.L. from Mother’s home, but “that Mother’s goal is to remove
Father from his child’s life.” Juvenile Court Opinion, 4/23/14, at 13. The
5
The trial court opinion states that there have been 17 reports of abuse,
but the record reflects that there have been 18, as stated herein.
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juvenile court found that the court, CYS, the guardian ad litem, and the
Court Appointed Special Advocate (“CASA”) encouraged Mother to facilitate a
relationship between Father and A.L. Juvenile Court Opinion, 4/23/14, at
12-13. Both Mother and Father participated in individual counseling. Id. at
10. In addition, the juvenile court found that efforts by CYS to provide
reunification therapy and provide supervised visits were reasonable.
Juvenile Court Opinion, 4/23/14, at 13.
We find the record supports the trial court’s determination that
reasonable efforts were made to prevent the removal of A.L. from Mother’s
home. A.L., Mother, and Father received support and services for more than
six months leading up to the permanency review hearing. Try Again Homes
provided in home services for Mother, albeit unsuccessfully. N.T., 6/26/13,
at 6; N.T., 9/24/13, at 64. Nevertheless, despite all of these services, A.L.’s
emotional health and safety continued to decline and reunification efforts
between A.L. and Father were unsuccessful.
Therefore, despite the juvenile court’s improper use of the words “best
interest,” the record supports the juvenile court’s decision to remove A.L.
from Mother and place her with relative foster care based on a clear
necessity pursuant to 42 Pa.C.S.A. § 6351(b). Accordingly, we conclude
that the juvenile court did not err.
For her fourth and final issue on appeal, Mother argues that the
juvenile court erred and abused its discretion in admitting into evidence and
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placing weight on Dr. Rosenblum’s report. Mother’s Brief at 25. The record
reflects that at the permanency review hearing, the guardian ad litem
questioned Dr. Ventura with regard to the substance of Dr. Rosenblum’s
report, specifically questioning Dr. Ventura on their differing approaches and
conclusions on the case. N.T., 1/14/14, at 565, 567-70. Mother’s counsel
objected to the questioning, stating that the report was not offered into
evidence at the September 24, 2013 review hearing. Id. at 565. Mother
did not stipulate to Dr. Rosenblum’s report, but only stipulated to follow the
recommendations of the report. Id. at 565-66. After the guardian ad litem
pointed out that the report was court ordered, the juvenile court stated, “I’ll
– if it hasn’t been admitted, I would allow it to be introduced.” Id. at 567.
Dr. Rosenblum’s report was thereafter marked for identification and
admitted into the record. Id. On appeal, Mother argues that the report
should not have been admitted into evidence because the report was
hearsay, Dr. Rosenblum was not called as a witness, and Dr. Rosenblum was
not subjected to cross-examination. Id. at 25-27.
As this Court has held, “[i]t is well settled that questions concerning
the admission or exclusion of evidence are within the sound discretion of the
trial court and will be reversed on appeal only where a clear abuse of that
discretion exists.” In re A.H., 763 A.2d 873, 880 (Pa. Super. 2000) (citing
In re M.K., 636 A.2d 198, 203 (Pa. Super. 1994)). In the instant matter,
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the record reflects that the trial court did not abuse its discretion in
admitting Dr. Rosenblum’s report.
“The Juvenile Act permits broad discretion in the admission of evidence
in dependency proceedings.” In re A.H., 763 A.2d at 880. The Juvenile Act
provides:
(1)(i) In disposition hearings under subsections (b)
and (c) all evidence helpful in determining the
questions presented, including oral and written
reports, may be received by the court and relied
upon to the extent of its probative value even
though not otherwise competent in the hearing on
the petition.
(ii) Subparagraph (i) includes any screening
and assessment examinations ordered by the
court to aid in disposition […]
(2) The parties or their counsel shall be afforded an
opportunity to examine and controvert written
reports so received and to cross-examine individuals
making the reports. Sources of information given in
confidence need not be disclosed.
42 Pa.C.S.A. § 6341(d)(1), (2).
Given the juvenile court’s broad discretion under section 6341(d), we
do not find any error in admitting Dr. Rosenblum’s report. The juvenile
court found that Dr. Rosenblum’s “report was received by the [c]ourt and
any party could have called the witness.” Juvenile Court Opinion, 4/23/14,
at 15. In addition, the juvenile court never prevented Mother or any other
party from calling Dr. Rosenblum as a witness to testify. Id.
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The cases cited by Mother do not convince us that the juvenile court
abused its discretion. In her brief, Mother cites to Coble v. Coble, 470 A.2d
1002 (Pa. Super. 1984), a case regarding a custody proceeding, in which the
Juvenile Act in general, and specifically, its relaxed evidentiary standard,
does not apply. See Mother’s Brief at 26. Mother also cites to In the
Interest of Leslie H., 478 A.2d 876 (Pa. Super. 1984) and In the
Interest of Jones, 429 A.2d 671 (Pa. Super. 1981) which involved the trial
court preventing the appellants from having an opportunity to cross-examine
and/or confront the witnesses whose testimony the trial court relied upon in
making its decision. See Mother’s Brief at 27. Accordingly, these cases are
inapplicable to the present matter.
However, even assuming that Mother is correct that admitting the
report was improper, we find that she is not entitled to relief, as the error
was harmless. Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super.
2007) (“Even if a court does wrongly admit hearsay, this Court will not
disturb a verdict on that basis alone if the admission constitutes harmless
error.”)
Error is harmless if: (1) the prejudice to the
appellant was nonexistent or de minimis; (2) the
erroneously admitted evidence was merely
cumulative of other untainted, substantially similar
and properly admitted evidence; or (3) the properly
admitted and uncontradicted evidence was so
overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error
could not have contributed to the verdict.
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Hardy, 918 A.2d at 777 (citing Dent, 837 A.2d at 582 n.2).
In this case, we conclude that any error in admitting Dr. Rosenblum’s
report was harmless, as the prejudice to Mother was nonexistent or de
minimis. There is nothing in the record that suggests the trial court relied
upon Dr. Rosenblum’s report in reaching its decision. To the contrary, the
juvenile court found that Father did not abuse A.L. and that Mother
conditioned or manipulated A.L. to believe that Father abused her, neither of
which findings were made by Dr. Rosenblum. Juvenile Court Opinion,
4/23/14, at 15. Furthermore, the juvenile court did not find Dr. Ventura’s
testimony to be believable or credible because she “never considered the
possibility that Father did not abuse [A.L.]” and because she “accepted as
true all that Mother reported,” not based on the guardian ad litem’s
questioning of Dr. Ventura regarding Dr. Rosenblum’s report. Moreover, Dr.
Rosenblum did not recommend removing A.L. from Mother’s care. Thus, the
record reflects that admission of Dr. Rosenblum’s report did not prejudice
Mother or the prejudice was de minimis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/03/2014
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