In the Interest of: R.D., Appeal of: J.D. & D.R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.D. AND D.R., :
BIOLOGICAL PARENTS :
:
:
: No. 1836 MDA 2019
Appeal from the Dispositional Order Entered October 10, 2019
In the Court of Common Pleas of Centre County Juvenile Division at
No(s): CP-14-DP-0000014-2017
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.D. AND D.R., :
BIOLOGICAL PARENTS :
:
:
: No. 1837 MDA 2019
Appeal from the Dispositional Order Entered October 9, 2019
In the Court of Common Pleas of Centre County Juvenile Division at
No(s): CP-14-DP-0000016-2017
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 03, 2020
J.D. (Father) and D.R. (Mother) (collectively, Parents) appeal from the
orders entered in the Court of Common Pleas of Centre County (trial court)
adjudicating dependent their two daughters, R.D. (born August 2003) and
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* Retired Senior Judge assigned to the Superior Court.
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A.D. (born April 2010) (collectively, Children), and placing them in kinship
care. We affirm.
I.
Father and Mother are the natural parents of two sons, T.D. (born July
2001) and D.D. (born December 2006) as well as two daughters, R.D. and
A.D. In 2011, Centre County Children and Youth Services (CYS) opened
protective services with the family because of concerns with home conditions,
mental health concerns with the children and truancy issues. Protective
services ended in 2012 but were resumed in 2016 and have remained open.
In May 2017, all four minors were adjudicated dependent but remained in the
family home. However, in July 2017, T.D. was placed in a group home
because of allegations that he sexually assaulted R.D., which CYS investigated
and determined to be true. That same month, R.D. was admitted into an
inpatient psychiatric facility for two weeks. Upon her discharge, she was
referred to a psychologist for trauma therapy and prescribed medication.
In September 2017, D.D. was placed in a group home because of,
among other reasons, violent behavior and suicidal threats. His behavior
improved at the group home and, in February 2018, he returned home.
However, when D.D.’s behavior regressed in the home and R.D. began to miss
school, have panic attacks and allow her personal hygiene to decline. After
she attacked D.D. and threatened her family, R.D. was admitted again into
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inpatient psychiatric treatment in April 2018. A week later, on April 20, 2018,
D.D. was placed back in the group home.
When R.D. returned home, though, she improved greatly, as did her
younger sister, A.D. Both were regularly attending school and counseling and
by all indications were thriving. Additionally, home conditions, which had
always been a concern, had steadily improved. T.D. and D.D. had caused
substantial property damage, including broken walls and exposed electrical
wires, which were repaired since they left the house. As a result, on January
19, 2019, the trial court determined that Children were no longer dependent
and terminated supervision but ordered that protective services remain open
for CYS to monitor the condition of the home and ensure Children were
attending school and counseling.
According to CYS, R.D. began to decline when supervision ended. By
March 2019, she showed signs of depression, including locking herself in her
room and poor personal hygiene. This continued through the end of the school
year with her frequently missing school, as well as A.D. regularly being tardy
at her school. Around this time, CYS also began to see the condition of the
home regressing from its past improvement.
Children began the new school year in August 2019. After attending the
first day, R.D. was absent for the next two weeks. During this time, CYS
continually sent a caseworker for home visits but she was unable to make
contact with anyone, even though R.D. was presumably home as well as one
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of Parents’ cars being in the driveway. Concerned with the situation, a CYS
caseworker spoke with A.D. at her school. She related that R.D. had been
sick and was often unable to get out of bed. When asked about counseling,
A.D. said that she had started seeing a new therapist but R.D. was no longer
seeing hers. This was the first time that CYS learned that neither R.D. nor
A.D. were seeing their original psychiatrist. Just a few weeks before, Parents
told CYS that they had no plans to withdraw Children from therapy with their
psychiatrist and seek someone new.
The relationship between CYS and Parents continued to deteriorate
when CYS began to suspect that T.D. was visiting the home without
supervision. T.D. turned 18 at the end of July 2018 and decided to leave the
care of CYS. Because he was living nearby and never completed sexual
offender counseling, CYS told Parents that T.D. could not live at the house or
have unsupervised contact with Children. However, during a visit to the home
in August 2019, CYS observed T.D.’s duffle bag and Mother admitted that she
was doing his laundry. During another visit, Mother told CYS that she would
no longer provide information about T.D. to CYS.
Based on these accumulating concerns, on September 16, 2019, CYS
filed dependency petitions for Children, alleging that they lacked proper
parental care or control. The trial court appointed counsel for Parents and a
guardian ad litem (GAL) for Children and scheduled a hearing for September
27, 2019. Before the scheduled hearing, CYS confirmed that R.D. was no
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longer seeing her therapist and was now on a waitlist for a new therapist.
When CYS indicated that it intended to request the removal of Children from
the home, Parents requested a continuance that was granted under the
condition that they agree to a safety plan with CYS and sign releases for all
information pertaining to Children. After Parents complied, the dependency
hearing was continued to October 9, 2019.
At that hearing, CYS presented Nicole Williams (Williams), a CYS
caseworker assigned to the family since 2015. Besides relating the above
history and concerns, Williams updated the trial court on Children’s school
attendance. A.D. had been late for school at least six times since beginning
the school year. Williams suggested that A.D. ride the bus to school but
Parents insisted they drive her so she did not have to wake up early. As for
R.D., she had recently enrolled in virtual school because she was absent for
the first month of school and her issues with anxiety. Despite being enrolled
for only a week, R.D. was almost 12 hours behind on her homework within
the first week of virtual school.1 Williams worried about R.D. being left home
alone during the day because of her mental health history.2 Williams
contrasted this with R.D.’s previous success when she was attending school,
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1 Williams explained that in virtual school, the students have to work four
hours per day, 20 hours per week. R.D. was 2.8 days behind in her homework.
2Counsel for both Parents and Children clarified that the school district did
not require R.D., who is 16, to be supervised at home to complete her work.
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participating in extra-curricular activities and receiving services. Williams also
reiterated her concern with T.D. having unsupervised contact with R.D. and
A.D., especially since Mother seemed to minimize the seriousness of T.D.’s
past conduct with R.D.
CYS also presented Maria Andrews (Andrews), a counselor with Youth
Services Bureau, a service provider of CYS. When she visited the home less
than a week earlier on October 3, 2019, there was a strong smell of cat urine
and dog feces in the house along with garbage, dirty dishes and rotten food.
When she went into the basement, she saw several piles of dog feces left by
the family’s newly-adopted dog. When she returned for another visit, the
smell of dog feces was still in the house.
Williams and Andrews recommended that Children be placed with their
maternal uncle in Mercer County. Mother opposed removal and refuted the
concerns expressed by CYS, including denying that T.D. was residing at the
home. Despite these refutations, the trial court adjudicated Children
dependent and, over the objection of Parents and the GAL, placed them in
kinship placement. Under the trial court’s order, the next hearing on the
Children would be held on March 24, 2020. On November 7, 2019, Parents
filed a notice of appeal along with a statement of matters complained of on
appeal under Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court issued its
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Pa.R.A.P. 1925(a) opinion on December 5, 2019. Parents now challenge the
trial court’s dependency and placement determinations.3
II.
Parents claim that the trial court committed an abuse of discretion in
adjudicating Children dependent because there was not clear and convincing
evidence that Children were lacking proper care and control. Parents divide
their claim into six separate arguments that we address individually. Before
addressing these arguments, we review our guiding principles.
[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) (citation omitted).
[T]he scope of review is limited in a fundamental manner by our
inability to nullify the fact-finding of the lower court. We accord
great weight to this function of the hearing judge because [the
court] is in the position to observe and rule upon the credibility of
the witnesses and the parties who appear before [the court].
Relying upon [the court’s] unique posture, we will not overrule
[its] findings if they are supported by competent evidence.
In re A.H., 763 A.2d 873, 875 (Pa. Super. 2000) (quotation omitted).
Section 6302 of the Juvenile Act defines a “dependent child,” in relevant
part, as one who:
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3The GAL for Children did not appeal from the trial court’s orders and has not
submitted a brief in this appeal.
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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, 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.
A court may adjudicate a child as dependent if the child meets the
statutory definition by clear and convincing evidence. See In re E.B., 898
A.2d 1108, 1112 (Pa. Super. 2006). That is, the evidence must be “so clear,
direct, weighty, and convincing as to enable the trier of facts to come to a
clear conviction, without hesitancy, of the truth of the precise facts in issue.”
Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997). “[T]he dependency
of a child is not determined ‘as to’ a particular person, but rather must be
based upon two findings by the trial court: whether the child is currently
lacking proper care and control, and whether such care and control is
immediately available.” In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010)
(citations omitted).
A.
Parents first argue that the trial court relied on its previous dependency
adjudications of T.D. and D.D. in finding Children dependent. Parents,
however, did not raise this issue in their Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. By failing to do so, Parents have waived the issue.
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See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule
1925(b)s]tatement ... are waived”).
Even if preserved, we would find that this claim lacks merit. In its
findings of fact, the trial court included the family’s history with CYS, including
the dependency and placement of T.D. and D.D., in order to give a complete
background and explain its concerns for Children and what they have
experienced in the home through the years. The trial court’s dependency
determination for Children was limited to the evidence about them after the
termination of supervision in January 2019. Consideration of the brothers’
history, particularly in regards to T.D. and R.D., was proper to the extent it
explained the mental health concerns of Children. Accordingly, the trial court
did not improperly rely on its prior dependency determinations.
B.
Next, Parents argue that the trial court lacked a sufficient factual basis
to conclude Children, particularly R.D., declined after the termination of court
supervision in January 2019. To the contrary, the trial court provided ample
factual basis for this finding in its Pa.R.A.P. 1925 opinion:
[CYS’s] evidence at the October 9, 2019 hearing included
testimony detailing the history of the family’s involvement with
service providers since dependency was terminated for the girls.
This included the fact that, one day after dependency was
terminated, R.D. missed a counseling appointment with her
trauma therapist, and she missed two days of school the next
week. Counseling had been established for both girls due to the
trauma associated with the violence in the home and overall
conditions, their brothers’ removal from the home, and social
service agencies being in and out of their lives for such a long
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period of time. For R.D., the counseling was also critical in terms
of addressing trauma associated with the sexual assault involving
TD. The concerns over missed school and counseling were timely
addressed with the family.
By March of 2019, R.D. exhibited signs of significant depression.
Her hygiene regressed to a point where she would not shower,
wash, or change her clothes, and she began regularly missing
appointments and locking herself in her bedroom and refusing to
come out. Home conditions fluctuated between minimally
acceptable and deplorable, as detailed by the testimony regarding
food debris and garbage laying around the house, animal feces
and a urine odor through-out the home, and, on one occasion,
dried-up vomit throughout the bathroom. This issue is addressed
further below.
By the end of the 2018/2019 school year, R.D. was missing a lot
of school, and A.D. had been tardy or late nine days. Truancy and
tardiness continue to be a significant problem in the 2019/2020
academic year. Parents have not been successful in ensuring that
either of the girls attends school consistently and in accordance
with the school schedule. Evidence at the October 9, 2019 hearing
established that R.D. had been to school only a handful of days
from the time school started on August 26, 2019 until September
27, 2019. This information did not come from Parents initially. In
fact, in response to inquiries by the family’s reunification worker
about how things were going, Mother responded that everything
was going fine. The reunification worker later received reports
that R.D. had missed approximately two weeks of school. There
were initial reports that R.D. might be ill with a contagious
disease, and Mother reported having taken her to the emergency
room in early September. Parents report that R.D. is not able to
attend public school because of high anxiety associated with
leaving the home. This is also corroborated to some degree by
reports from a school counselor that R.D. would arrive at school
and refuse to get out of the car, requiring school staff to help
remove her and bring her into the school. She ultimately refused
to go to school altogether. R.D. was often left home alone during
this time, despite what appear to be significant issues with
depression, a history of self-harm and suicidal ideation, and
possibly a physical illness for which she was taken to the
emergency room. [CYS] workers were not able to make contact
with the family during much of this time despite repeated
attempts.
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By the time of the October 9 hearing, R.D. had been enrolled in
State College Area High School’s Virtual school. She had been
enrolled in the virtual school program on September 27, 2019,
which was the day originally scheduled for the dependency
adjudication in this case but then continued at Parents’ request.
(See Order dated September 27, 2019). As of the October 9
hearing, R.D. was already 2.8 days behind in her virtual school
work. The Agency was advised by the school that action would be
taken before the magisterial district court regarding R.D.’s
truancy.
In September of 2019, [CYS] learned that both R.D. and A.D. had
stopped seeing their counselor, Pam McCloskey, in August. This
information was not originally provided by Parents. Rather, it was
first brought to the attention of the reunification counselor
working with the family in September of 2019 when she went to
A.D.’s school to see her because she had received reports of R.D.’s
truancy and was unable to make contact with the family for
approximately two weeks despite multiple visit attempts at the
home.
CYS testimony established that part of the concern regarding
R.D.’s truancy is for her overall emotional and mental wellbeing.
Over the course of the years working with the family, [CYS] and
service providers have observed R.D. to enjoy school and
extracurricular activities, and to thrive in that environment.
Significant concern exists with respect to R.D.’s lack of exposure
to peers, outside activities, and the environment outside the home
in general. These circumstances are exacerbated by the facts that
R.D. is not seeing an individual counselor and that she has a past
history of self-harming behavior and aggression toward family
members at times.
[CYS] testimony established that A.D. was observed to be
emotionally volatile at times, and that Mother’s manner of
comforting her in those situations was excessive and inappropriate
physical contact that undermined the work and efforts of the
reunification team, including the family, to establish personal
boundaries essential to the wellbeing of the family and its
individual members, including A.D. A.D. was observed to be
invasive of others’ physical space and to flaunt herself around
other family members. A.D. was also observed to refuse any food
offered in the family home; this had been a problem for D.D. and
T.D. in the past as well.
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Evidence also demonstrated concerns about the possibility that
T.D. may be having unsupervised contact with R.D. and A.D. This
was largely based on [CYS] seeing T.D.’s suitcase and duffle bag
filled with clothes in his bedroom on one or two occasions, and the
fact that [CYS] knew T.D. had returned to the area but did not
know his whereabouts or living arrangements. The evidence
established that Parents had not been forthcoming or cooperative
with [CYS] about information relating to T.D.’s whereabouts and
contact with the family.
In sum, the evidence presented by [CYS] at the October 9, 2019
hearing demonstrated that the girls were, once again, having
excessive absences from school and/or tardy days, that both were
exhibiting behaviors indicative of emotional instability, that their
counseling had been significantly interrupted, (and had been
effectively terminated for R.D.), that home conditions had
worsened to the point of being completely unsanitary, that
significant concerns existed with respect to whether the girls were
being appropriately cared for and supervised, and that Parents
were not being forthcoming or cooperative with [CYS] and service
providers.
Trial Court Opinion (T.C.O.), 12/5/19, at 5-8.
Here, the trial court reviewed the record and credited CYS’s testimony
in concluding that Children declined after January 2019. The trial court, sitting
as the finder of fact, is in the best position to make that factual determination,
and we are bound to accept that determination so long as it is supported in
the record, which, as thoroughly summarized by the trial court, it is.
C.
In their next argument, Parents claim that the trial court erred to the
extent it determined Children were dependent based on missing or being late
for school. Parents emphasize that there was no evidence Children were
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failing any classes. As for R.D., Parents note, Mother cooperated with the
school district in enrolling her in virtual school due to her extended absences.
Parents’ argument, however, really amounts to a disagreement with the
trial court’s concern about the educational needs of Children. The trial court’s
finding that Parents were not providing the necessary support of those needs
is supported by the record. As noted above, after January 2019, R.D. began
again to miss school and A.D. was continually tardy because Parents would
not get her to school on time. Additionally, R.D. was almost entirely absent
for the first month of school from August to September 2019. When she
enrolled in virtual school at the end of September 2019, she fell behind nearly
three days into her assignments within just the first week.4 This is sufficient
to support the court’s finding that the educational needs of Children were not
being met, which was just of several concerns that the trial court relied on in
adjudicating them dependent.
D.
Parents next claim that there was an insufficient factual basis for the
trial court to conclude that conditions in the home had deteriorated. Parents
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4 Parents dispute that R.D. was 2.8 days behind in her work, as Mother
testified that it was assignments and not hours. See N.T., 10/9/19, at 102.
In contrast, Williams testified that she spoke to R.D.’s counselor in charge of
the virtual school; she explained that R.D. was 2.8 days behind and a day
equaled four hours of work. See id. at 38. On this dispute, the trial court
credited Williams’ testimony and we are bound to accept its finding.
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fault the trial court for crediting Andrews’ testimony over Mother and argue
that the unsanitary conditions in the home, including dog feces and black
smears, could have been easily remedied.
To the extent Parents argue the trial court erred in crediting the
testimony of Andrews over Mother, which they argue the trial court did out of
“bias and preference,” we disagree. We are required to accept the trial court’s
credibility determinations that are supported by the record. See In re L.Z.,
111 A.3d 1164, 1174 (Pa. Super. 2015) (citation omitted).5 Andrews testified
that the home was in poor condition even after the dependency petitions were
filed, which included her home visit on October 3, 2019. See N.T., 10/9/19,
at 69-70. There was a smell of dog feces, cat urine, garbage and rotten food.
Id. at 70. In the kitchen, there was a ham bone left out covered in flies. Id.
Meanwhile, in the basement, there was dog feces that was picked up but not
scrubbed, and throughout the house there were black smears. Id. at 71-72.
As the trial court noted, the conditions of the home have been a source of
continuing concern through the years, with the conditions sometimes
improving through help with service providers and then deteriorating when
there has been a lack of supervision. See T.C.O. at 9-10. We find no error
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5Parents attempt to attack the trial court’s crediting of Andrews that there
was a ham bone wedged in R.D.’s bed between the mattress and the frame.
See N.T., 10/9/19, at 70. Mother refuted this by claiming it was a dog toy.
Id. at 91. Again, the trial court is in the best position to make this factual
determination and simply credited Andrews’ testimony over Mother’s.
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in the trial court crediting Andrews’ testimony and finding that the conditions
of the home had again regressed and created an unsafe environment for
Children.
E.
Parents also argue that the trial court placed undue emphasis on T.D.’s
decision to not remain in the care of CYS when he turned 18 years of age in
July 2019. Parents acknowledge the trial court disavowed that it was relying
on this fact in its dependency adjudication for Children, but emphasize that
CYS expressed their concern at the hearing about T.D. choosing to leave the
care of CYS. However, as Parents concede, the trial court expressly stated
that it did not find T.D.’s decision to be particularly relevant to its dependency
determination. See id. at 10. To the extent that it did, it did so only in
reference to R.D. and its concern with T.D. having unsupervised contact with
her because of past abuse.6 We find no error.
F.
Finally, in their last argument challenging dependency, Parents claim
the trial court again placed undue emphasis on Children being withdrawn from
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6 We also note that Parents leaving Children unsupervised with T.D. could
meet the definition of “child abuse” for “intentionally, knowingly, or recklessly
... [c]reating a likelihood of sexual abuse or exploitation of a child through any
recent act or failure to act.” 23 Pa.C.S. § 6303(b.1)(6).
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counseling with their original psychiatrist and seeking a new therapist for both.
On this issue, the trial court explained its finding:
The Court did not find the fact of a change, in and of itself, to be
of critical concern; however, there was a substantial interruption
in much-needed therapy for the girls as a result, and a lack of
communication by Parents with [CYS] and service providers on
this important issue. This is particularly problematic with respect
to R.D., who was exhibiting substantial emotion and mental health
difficulties during this time. Testimony established that R.D. was
working with Mother and Mother’s therapist to some degree, but
had not engaged in her own, individual counseling. The Court was
not persuaded by Mother’s testimony suggesting that R.D. refused
to see the former therapist and that she was doing all she could
to have R.D. establish a new therapist.
T.C.O. at 10-11.
As the trial court observes, Parents have the right to determine which
therapist the Children will see. However, by doing so, Parents’ decision
resulted in R.D., who the trial court found had been declining since the
beginning of 2019, to be left without any individual counseling and no
prospects of obtaining a new psychiatrist anytime soon. Coupled with the
Parents’ failure to inform CYS of the sudden change, we discern no abuse of
discretion in the trial court concluding that Parents were not doing enough to
ensure the mental health of Children, and that along with all of the above-
discussed concerns, determined that Children lacked proper parental control.
Accordingly, because there is clear and convincing evidence meeting the
standard set at 42 Pa.C.S. § 6302 for finding the Children dependent, the trial
court did not abuse its discretion in so holding.
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III.
Parents also argue that the trial court erred in placing Children with their
maternal uncle rather than allowing them to remain in the home. Regarding
whether a child should be removed from parental control:
The law is clear that a child should be removed from her parent’s
custody and placed in the custody of a state agency only upon a
showing that removal is clearly necessary for the child’s well-
being. In addition, this court had held that clear necessity for
removal is not shown until the hearing court determines that
alternative services that would enable the child to remain with her
family are unfeasible.
In re A.B., 63 A.3d 345, 349-350 (Pa. Super. 2013) (citation omitted).
“Ultimately, a hearing court is given broad discretion in meeting the goal of
entering a disposition ‘best suited to the protection and physical, mental, and
moral welfare of the child.’” In re S.M., 614 A.2d 312, 315 (Pa. Super. 1992)
(citation omitted).
Like their dependency argument, Parents’ claim against placement
really amounts to a disagreement with the trial court. In their two-paragraph
argument, Parents cite no case law demonstrating that the trial court erred in
determining that kinship placement was the least restrictive placement that
meets the needs of Children. While it is true, as Parents point out, that there
had previously been improvement in R.D. and A.D., the trial court had ample
record support for concluding that the needs of the Children were not being
met at the time of the October 2019 dependency hearing. Besides the ongoing
concerns pertaining to their educational and mental health needs, there was
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evidence that the sanitary conditions of the home had worsened merely days
before the hearing. As we found concerning dependency, the trial court is in
the best position to determine the disposition best suited to the physical,
mental, and moral welfare of Children. Because Parents have failed to
demonstrate that the trial court erred in that decision, we find that this claim
merits no relief.7
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/03/2020
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7 We further note that Parents have waived this claim by failing to raise it in
their Pa.R.A.P. 1925 statement.
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