In the Int. of: S.F., Appeal of: J.J. ( 2022 )

J-S37002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.J., FATHER :
:
:
:
:
: No. 1497 EDA 2022
Appeal from the Order Entered May 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000200-2021
IN THE INTEREST OF: J.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.J., FATHER :
:
:
:
:
: No. 1498 EDA 2022
Appeal from the Order Entered May 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000571-2020
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 9, 2022
J.J. (“Father”) files these consolidated appeals from the May 11, 2022
dispositional orders1 that suspended his visitation with his daughters, J.J.,
____________________________________________
1It is well established that dispositional orders are final and appealable. See
Interest of J.M., 219 A.3d 645, 652 (Pa.Super. 2019) (“[T]he dispositional
order following a dependency adjudication . . . is a final appealable order.”).
J-S37002-22
born in March 2018, and S.F., born in February 2021, following the tragic
death of a third child, Ju.J. We affirm.
On July 14, 2020, the Philadelphia Department of Human Services
(“DHS”) obtained protective custody of J.J., N.F.,2 and Ju.J. after receiving a
report alleging that their mother, M.F. (“Mother”) punched then four-month-
old Ju.J. in the head and attempted to set fire to Father’s clothes. The report
further alleged that Mother had untreated mental health problems and
substance abuse issues and that there was a history of domestic violence
between Mother and Father. At the time, the family was known to DHS and
had been receiving services. On August 18, 2020, the court adjudicated all
three children dependent and committed them to DHS’s custody.
Thereafter, DHS obtained protective custody of S.F. on February 26,
2021, after both Mother and S.F. tested positive for cocaine at S.F.’s birth.
Following a shelter care hearing, the court placed S.F. in kinship care with her
paternal grandmother (“Paternal Grandmother”). At the ensuing hearing, the
juvenile court held that S.F. was not a dependent child and transferred legal
and physical custody of the child to Father.
On May 6, 2021, the court reunified N.F., J.J., and Ju.J. with Father.
The court discharged the commitment and returned legal and physical custody
____________________________________________
2 Father is not N.F.’s biological parent, and N.F. is not a subject of this appeal.
As discussed further in the body of this writing, DHS’s investigation into Ju.J.’s
death produced an indicated report identifying Father as a perpetrator of
sexual and physical abuse against N.F. See N.T., 5/11/22, 28, 29. On
December 17, 2021, DHS placed N.F. in foster care through Northern
Children's Services, where she remains.
-2-
J-S37002-22
to Father with DHS supervision. The court further provided for Mother, whom
it believed then resided separately, to have liberal supervised visits with the
children and to continue her drug and alcohol treatment. Permanency Review
Order, 5/6/21; N.T., 5/6/21, at 9-10, 23-25. Then, on October 26, 2021, the
court terminated court supervision for all three children due to their
reunification with Father. However, the court specifically directed Father “to
comply with not allowing Mother unsupervised visits.” Order for Termination
of Court Supervision, 10/26/21; N.T., 10/26/21, at 9, 11.
Approximately two months after the termination of court supervision,
then-fifteen-month-old Ju.J. died at the family’s home. N.T., 5/11/22, at 12.
Father transported the child to Christopher’s Hospital for Children, but they
were unable to resuscitate her. The general protective service report filed in
response to the infant’s death alleged that, upon arriving at the Hospital,
several bruises were observed on Ju.J.’s head and legs and blood was in Ju.J.’s
mouth.
DHS supervisor Amy Crescenzo3 recounted the pertinent facts as
follows:
The allegation was that in the morning of December 16th,
N.F. went to school crying that her baby sister[, Ju.J.,] was killed
by [Mother].
At the time of the report [N.F.] . . . walk[ed] to school alone,
was crying, upset, and the Police were notified. [N.F.] was
____________________________________________
3 The notes of testimony of May 11, 2022 misnamed Ms. Crescenzo as
Amy Cristenzo.
-3-
J-S37002-22
transported to [the Special Victims Unit] and had a forensic
interview.
At that time, during the forensic interview, [N.F.] gave a
horrible description of abuse that she witnessed [at] the hands of
[Mother,] where [Ju.J.] was physically abused by her mother. She
described hot sauce being poured down [Ju.J.]’s throat. She drew
descriptions, pictures of the abuse and was crying continuously.
Id. at 13-14; see also N.T., 5/11/22, Exhibit DHS 1 (cleaned up).4
Ms. Crescenzo additionally confirmed that “it was learned that [Ju.J.]
was brought to the hospital by Mother and Father and [Ju.J.] was deceased at
the time at the hospital.” N.T., 5/11/22, at 13-14. Thereafter, over the
____________________________________________
4 As detailed, in part, in the forensic interview summary:
[N.F.] said one day, her baby sister [Ju.J.] (1yo) “did her
business” in the diaper so [Mother] took her to wash her. Then,
[Ju.J.] “did her business” again on the sister’s bed and [Mother]
wiped her. When [Mother] left and returned, [Ju.J.] was on the
floor and [N.F.] heard [Mother] say, “get up, get up[.”] [Mother]
took [Ju.J.] downstairs and stood her against the fridge and table,
but then [Ju.J.] fell to the floor. [Mother] said, “get up, get up”
and then [Ju.J.] bit [Mother]’s finger. [Mother] got a bottle of hot
sauce and rag and while [Ju.J.] was laying on the floor, [Mother]
held the towel to [Ju.J.] and made her drink the bottle of hot sauce
until there was only a little left, saying “drink, drink” while [Ju.J.]
was crying. [Mother] then had [Ju.J.] face the floor, holding her
hands behind her back and [N.F.] demonstrated that [Mother] had
her knee on [Ju.J.] and was “squishing her” and “bouncing on her”
while holding her mouth saying “shush[.”] [Ju.J.] was crying, then
[Mother] took her upstairs to her room.
....
[N.F.] said [Mother] and [Father] are the ones that take care of
[Ju.J.] [N.F.] described [Mother] as “being mean” towards [Ju.J.],
but denied that anyone else is mean towards her.
N.T., 5/11/22, Exhibit DHS 1 at 5-6.
-4-
J-S37002-22
ensuing three-day period, Mother and Father absconded with S.F. and J.J. in
an attempt to evade DHS.
As it relates to Father’s argument on appeal, we summarize the relevant
events during the period of avoidance. Upon bringing Ju.J. to the hospital,
Father initially indicated that S.F. and J.J. were in the car. When questioned
regarding this, he then reported that S.F. and J.J. were with their paternal
aunt (“Paternal Aunt”). N.T., 5/11/22, at 15-16, 18. However, when DHS
went to Paternal Aunt’s home on two occasions, it was met with “resistance”
and was unsuccessful in locating S.F. and J.J. at that location. Id. at 17, 31-
34. Notably, while waiting for police assistance, a neighbor reported observing
Paternal Aunt leaving the home with two children. Id. at 16, 34. Later, after
Father failed to bring S.F. and J.J. for an interview on December 18, 2021, as
agreed, the DHS investigator, Sharina Johnson, went to the family’s residence
escorted by the police and observed Mother and Father packing the car. In
approaching the family, Ms. Johnson overheard Mother state that they would
not be living there any longer. Id. at 17, 34-35. Thereafter, the police
assisted DHS in removing the children from parents’ custody.
Thus, after several days of attempting to locate S.F. and J.J., as well as
speak with Mother and Father, DHS finally found the children and obtained a
shelter care order. Id. at 35. S.F. and J.J. were, again, placed in kinship care
with Paternal Grandmother. The shelter care order did not provide visitation
for Mother and Father and included stay-away provisions against Mother,
Father, and Paternal Aunt. In addition to the shelter care order, the court
-5-
J-S37002-22
issued a separate protective order that explicitly prohibited Mother, Father,
and Paternal Aunt from engaging in any manner with S.F., J.J., and Paternal
Grandmother.
On December 31, 2021, DHS filed dependency petitions with respect to
S.F. and J.J. The trial court conducted an adjudicatory hearing on May 11,
2022. Both Mother and Father were present and represented by separate
counsel. DHS presented the testimony Ms. Crescenzo, Ms. Johnson, and
Cassandra Green, the Community Umbrella Agency (“CUA”) case manager,
who provided up-to-date testimony relating to S.F.’s and J.J.’s safety in
Paternal Grandmother’s kinship care. Neither Mother nor Father presented
any evidence.
By separate orders entered on May 11, 2022, the trial court adjudicated
one-year-old S.F. and four-year-old J.J. dependent pursuant to 42 Pa.C.S.
§ 6302(1)5 and continued placement with Paternal Grandmother. The court
established return to parent or guardian as S.F.’s and J.J.’s permanency goals.
The Court suspended all visitation with Mother and Father due to the pending
criminal investigation. Thereafter, Father timely filed notices of appeal, along
with concise statements of errors complained of on appeal pursuant to
____________________________________________
5 Pursuant to 42 Pa.C.S. § 6302, “dependent child” is defined as “[a] child
who is: (1) without proper care or 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(1).
-6-
J-S37002-22
Pa.R.A.P. 1925(a)(2)(i) and (b).6 This Court consolidated the appeals sua
sponte.
Father raises the following issue for our review: “Whether the [t]rial
[c]ourt abused its discretion and committed legal error in suspending
[Father]’s visits with his children, where [DHS] did not prove by clear and
convincing evidence that visits between the children and Father would pose a
grave threat[?]” Father’s brief at 3.
We observe our standard of review for dependency cases is as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record. . . but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted); see also In
the Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
Turning to Father’s issue on appeal concerning the trial court’s
suspension of his visitation, we note that in dependency cases, where
reunification remains the goal, parental visitation may not be denied or
____________________________________________
6 Mother did not file appeals from these orders and did not participate in the
instant appeals.
-7-
J-S37002-22
reduced unless visitation poses a grave threat to the child. See In re C.J.,
729 A.2d 89, 95 (Pa.Super. 1999).
In In re C.B., 861 A.2d 287 (Pa. Super. 2004), we explained:
The “grave threat” standard is met when the evidence clearly
shows that the parent is unfit to associate with his or her children;
the parent can then be denied the right to see them. This
standard is satisfied when the parent demonstrates a severe
mental or moral deficiency that constitutes a grave threat to the
child.
Id. at 861 A.2d at 293-294 (citations and some quotations omitted).
However, “When making this determination, we must take into consideration
the express legislative policy of preservation of the family. [See] the Juvenile
Act, 42 Pa.C.S. § 6301 et seq.” In Interest of Coast, 561 A.2d 762, 772
(Pa.Super. 1989) (en banc) (citation omitted). “Therefore, the trial court is
required to consider options such as structured visitation with the aid of an
agency; only where there are no practicable visitation options can visitation
be denied.” Id.In suspending Father’s visitation pending the criminal investigation, the
trial court referenced both Father’s actions in assisting Mother following Ju.J.’s
appalling death and Father’s involvement as an indicated perpetrator of sexual
and physical abuse of N.F. The court stated:
There’s a lot of serious allegations outstanding: one is the
homicide allegation and the other one is child abuse regarding the
child, [N.F.].
Those issues are open and pending and in the interest of
keeping these children safe until the matters are finally resolved,
there will be no visitation between the parents.
-8-
J-S37002-22
Some of the reasons that would support my finding that all
visitation and all contact is to be discontinued with the parents is
the fact that we have those criminal matters pending.
N.T., 5/11/22, at 49-50. The court proceeded to emphasize the importance
of protecting any potential testimony related to the pending matters. Id. at
50.
Further, in its Rule 1925(a) opinion, in support of its determination that
Father posed a grave threat to S.F. and J.J., the trial court found the testimony
presented by DHS to be reliable and reasoned as follows:
This court heard credible, persuasive testimony from the
DHS Supervisor and the DHS Investigator regarding the
circumstances of the death of [Ju.J.], sibling of J.J. and S.F., and
how [S.F. and J.J.] came to be placed under supervision. This
court also heard testimony from DHS that there was an active
[Child Protective Services] investigation after the December 2021
death of the child, [Ju.J.]. The outcome of that investigation was
indicated for Father as perpetrator of sexual and physical abuse
of the victim, N.F. This court further heard evidence of Father’s
prior 2007 criminal conviction of Corruption of Minors and
probation sentence supervised by the Sexual Offenders Unit of the
Philadelphia Department of Probation.
This court finds the totality of the evidence presented by
DHS is clear and convincing that the temporary suspension of
Father’s visitation is indicated to secure the safety and well-being
of these children. This court finds that Father’s contact with them
would present a grave threat at this time.
Trial Court Opinion, 7/12/22, at 24 (cleaned up).
In arguing that the trial court erred in suspending his visitation, Father
contends that the evidence does not support a finding that he was a grave
threat to S.F. and J.J. See Father’s brief at 13. Father argues:
There was no evidence that Father posed any risk at all to
J.J. . . . or S.F. There was no evidence that he neglected the
-9-
J-S37002-22
children. There was no evidence that he abused these children.
There was no evidence that he knew or should have known that
Mother posed any risk to the children.
Id. at 14 (cleaned up). Father notes the lack of any provision in an order
forbidding Mother from living in the family home. Id. at 13. Further, he
contends that the testimony regarding prior agency involvement as to Mother
related to substance abuse and did not suggest any abuse to S.F. and J.J. or
that Mother posed a risk to them. Id. at 14. As such, it follows, “[t]here was
no allegation, therefore, that Father either knew or should have known that
Mother posed any risk to [S.F. and J.J.], there being no evidence of any such
risk.” Id. Father further asserts that there was no evidence related to the
cause of Ju.J.’s death and the contribution or responsibility of either himself
or Mother. Id. He posits that, given their young ages, S.F. and J.J. were not
going to testify regarding Ju.J.’s death rendering any concern as to their
potential testimony unfounded. Id. at 15.
Additionally, while acknowledging the force of the indicated reports that
he perpetrated sexual and physical abuse against N.F., Father maintains that
this issue was not litigated at the time of the dependency adjudication. Id. at
14-15. He concludes:
DHS did not present any evidence of any possible harm or
negative effects that could befall [S.F. and J.J.] should Father visit
with them. The trial court had alternatives to a strict prohibition
of contact, even if it were concerned with [their] safety . . . during
visitation. The trial court could have ordered supervised
visitation. The trial court could have ordered that any contact
between Father and [S.F. and J.J.] be conducted within the line of
sight and line of hearing of agency personnel. A total suspension
- 10 -
J-S37002-22
of contact between Father and [S.F. and J.J.] is simply too
draconian an order, especially in this case in which there was no
evidence that Father harmed [them] . . . or neglected them, or
posed a grave threat to them in any way.
Id. at 16. With this, we disagree.
The certified record supports the trial court’s suspension of Father’s
visitation based upon the conclusion that such visitation poses a grave threat
to S.F. and J.J. Father disregarded S.F.’s and J.J.’s safety and failed to
appreciate the known risk posed by Mother and his court-ordered duty to
prevent Mother’s unsupervised access to N.F., J.J., and Ju.J. once he regained
custody. That disregard of the established safety protocols contributed to
Ju.J.’s death a mere two months after the court terminated its supervision.
Critically, while there was no court order explicitly prohibiting Mother
from living in the family home, the certified record bears out that N.F., J.J.,
and Ju.J. were only reunified with Father in May 2021, after Veronica Soto,
the CUA case manager, confirmed that Mother was not residing with Father.
See N.T., 5/6/21, at 10, 23-24. Ms. Soto provided the court Mother’s address
and stated that she did not believe Mother was residing in the home with
Father. Id. at 9-10. Moreover, in response to direct inquiry from Father, the
court verified that Mother’s visitation with the children was to be supervised.
Id. at 25. As such, the court’s May 6, 2021 order indicates Mother’s separate
address and provides that Father is “to comply with not allowing Mother
unsupervised visits.” Permanency Review Order (Non-Placement), 5/6/21
(emphasis added).
- 11 -
J-S37002-22
At the subsequent hearing on October 26, 2021, prior to terminating
court supervision, Ms. Soto again reported Mother’s separate address and
verified that Mother was not residing with Father. See N.T., 10/26/21, at 7.
The court’s order likewise documents Mother’s separate address. See Order
for Termination of Court Supervision, 10/26/21. Moreover, Ms. Soto
confirmed Father’s awareness that return of the children to Mother “would
jeopardize custody of the children.” N.T., 10/26/21, at 8 (emphasis
added).
Hence, any argument by Father that he should not have known that
Mother posed a risk to S.F. and J.J. is wholly disingenuous. Furthermore,
Father was well aware that Mother was expected to maintain separate
housing, and that she was only to have supervised visits.
Notwithstanding all of the foregoing warnings and safety constraints,
Father permitted Mother to reside with the family. See N.T., 5/11/22, at 16.
Crucially, it was later determined that, prior to the reunification, Father
knowingly deceived Ms. Soto and the court about Mother’s separate residence.
During the adjudication hearing, Ms. Johnson testified, “I found out during the
investigation . . . that the family rented a room to show the judge that
[Mother] was outside of the home with a different address[,] and[,] as soon
as the case closed[,] [Mother] moved back in the home with Father.” Id. at
43. As to Mother’s unrestricted access to the children in the home, Ms.
Crescenzo similarly testified: “When questioned, you know, about what had
occurred and why Mother was back in the [home] because at the last court
- 12 -
J-S37002-22
hearing, it was that he had custody of the children, not Mother. He had stated
to me that he could do whatever he wanted. The case was closed. . . .” Id.
(paragraph break omitted). Ms. Johnson confirmed this response by Father.
Id. at 42.
Additionally, following Ju.J.’s death, Father demonstrated poor insight,
deceit, and a lack of cooperation with DHS that placed S.F. and J.J. in further
danger by evading the agency’s attempts to locate the children for three days.
Even upon the eventual apprehension of Mother and Father as they were
loading the car with the contents of their residence, Father not only refused
to provide DHS with an explanation for Ju.J.’s death, but he also advised “Mom
to be quiet when she was making statements or answering questions.” Id. at
18, 36-38.
Finally, DHS presented evidence of the indicated reports of Father’s
physical and sexual abuse of N.F., as well as Father’s 2007 negotiated guilty
pleas for corruption of minors, statutory sexual assault, and aggravated
assault. Id. at 28; N.T., 5/11/22, Exhibits DHS 3 and DHS 5. Although the
agency was not litigating the abuse reports during the adjudicatory hearing,
Ms. Crescenzo’s undisputed testimony about these reports is germane to the
continuing safety of S.F. and J.J. in Father’s presence. Of further concern, in
October 2007, Father pled guilty to charges of corruption of minors and
statutory sexual assault, admitting to having “deviate sexual intercourse with
the complainant . . . age 12, by placing his mouth/tongue in her vagina, and
- 13 -
J-S37002-22
placing his penis inside her mouth.” N.T., 5/11/22, Exhibit DHS 3 at
unnumbered 3.
Given the preceding evidence adduced during the adjudication hearing,
DHS demonstrated by clear and convincing evidence that Father is “unfit to
associate with” S.F. and J.J., and that continued visitation would pose a “grave
threat” to their well-being. See C.B., supra at 294. Therefore, the trial court
did not abuse its discretion in suspending Father’s visitations with those
children pending the resolution of the criminal investigations. As we discern
no abuse of discretion, we do not disturb the dispositional orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
- 14 -