In the Int. of: V. B., Appeal of: R.B. ( 2023 )

J-S20001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INTEREST OF: V.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.B., MOTHER :
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: No. 438 EDA 2023
Appeal from the Order Entered January 20, 2023,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-DP-0001079-2022.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 29, 2023
In this matter, R.B. (Mother) appeals the decision of the Philadelphia
Court of Common Peas (the juvenile court), which determined that her 12-
year-old daughter V.B. (the Child) was dependent under the Juvenile Act. See
42 Pa.C.S.A. § 6341. Mother claims that the decision was based on insufficient
evidence, as well as improper hearsay testimony. In addition to the
substantive dependency adjudication, Mother appeals the dispositional portion
of the adjudicatory order, which removed the Child from Mother’s home. After
careful review, we conclude inter alia that the court’s admission of
impermissible hearsay testimony constituted a harmless error, and we affirm.
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* Retired Senior Judge assigned to the Superior Court.
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By way of factual background, the record indicates that the Philadelphia
Department of Human Services (DHS) became involved with the family in
early 2022. DHS had received a general protective services report, which
referenced the parents’ drug use and alleged there was domestic violence in
the home. Although DHS ultimately determined these reports were
“validated” in May 2022, DHS did not seek an order for protective custody or
file a dependency petition.
In November 2022, DHS received another report alleging drug use and
domestic violence in the home. This time, DHS filed a dependency petition
and sought and obtained an order for protective custody. Pursuant to a safety
plan, the Child went to live with a family friend. On January 20, 2023, the
juvenile court held a hearing on the dependency petition. The court heard
testimony from the DHS social worker who investigated the allegations, the
caseworker from the Community Umbrella Agency (CUA), and the CEO of the
Child’s school. Neither parent appeared for the hearing. The testimony was
the subject of frequent objections, mostly for hearsay. The court largely
overruled the objections. At the end of the hearing, the court adjudicated the
Child dependent and committed the Child to the custody of DHS. Mother
timely filed this appeal.1 The juvenile court authored a Pa.R.A.P. 1925(a)
opinion, which largely directs this Court to its reasoning set forth on the
record.
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1 Father did not appeal the juvenile court’s decision.
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Mother raises the following issues for our review, which we reorder for
ease of disposition:
1. Did the juvenile court err as a matter of law and abuse
its discretion by adjudicating [the Child] to be a
“dependent child” pursuant to 42 Pa.C.S.A. § 6302 on
hearsay statements in violation of the Juvenile Act,
the Pennsylvania Rules of Evidence, and Appellant’s
right to due process?
2. Did the juvenile court err as a matter of law and abuse
its discretion by adjudicating the Child to be a
“dependent child” pursuant to 42 Pa.C.S.A. § 6302 in
the absence of clear and convincing evidence that [the
Child] was presently “without proper parental care
and control…as required by law”?
3. Did the juvenile court err as a matter of law and abuse
its discretion by committing the Child to the legal
custody of [DHS] in the absences of clear and
convincing evidence that removal from Mother was
clearly necessary?
Mother’s Brief at 3 (style adjusted).
Our discussion begins with Mother’s claim that the juvenile court
committed evidentiary errors. The admission of evidence is within the
discretion of the trial court and such decisions will be reversed only if the trial
court has abused its discretion. Interest of I.R.-R., 208 A.3d 514, 519 (Pa.
Super. 2019) (citation omitted). The Rules of Juvenile Court Procedure
provide that in adjudications, each party shall have an opportunity to present
evidence subject to the Rules of Evidence. See Pa.R.J.C.P. 1406.
“Under the Pennsylvania Rules of Evidence, hearsay evidence is
incompetent and inadmissible unless it meets an exception set forth in the
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Rules or one prescribed by this Court or statute.” In re A.J.R.-H., 188 A.3d
1157, 1167 (Pa. 2018) (quoting Pa.R.E. 801(c)). “‘Hearsay’ is ‘a statement
that (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.’” Id. Hearsay within hearsay – or “double
hearsay” as it is sometimes referred – is not excluded by the rule against
hearsay if each part of the combined statements conforms with an exception
to the rule. See Pa.R.E. 805.
In her first appellate issue, Mother alleges several instances where the
juvenile court improperly admitted hearsay evidence:
• The DHS social worker’s testimony about what the
neighbor told her about the parents’ drug use and the
existence of domestic violence in the home (see N.T.
at 16-18);
• The DHS social worker’s testimony that the police
department said there were several calls concerning
domestic violence in the home (see N.T. at 28);
• The DHS social worker’s testimony about how the
Child said Father “held her hostage in the home once”
(see N.T. at 21); and
• The CUA caseworker’s testimony that, according to
the Child, Mother said the Child should not speak to
the caseworkers (see N.T. at 47-48).
See generally Mother’s Brief at 20-23:
We address each instance in turn. In the first instance, the DHS social
worker testified that she spoke with Mother’s neighbor as part of her
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investigation. Over Mother’s objection, the caseworker testified about what
the neighbor told her:
DHS social worker: The neighbor stated that there are
major drug and alcohol concerns for
Mother and Father. She stated that
there are domestic violence concerns
for Mother and Father. [The neighbor]
stated that Father has been seen
laying in the street apparent to be dead
[sic] and they have ran to get [Mother]
because he looked dead. And [Mother]
basically came out and said, “Oh, I’m
going to Narcan you.”[2] And he
jumped up.
N.T. at 17-18 (footnoted added).
This excerpt contains hearsay within hearsay – that is, the caseworker’s
testimony concerns what the neighbor said that Mother had stated to Father.
As such, each component (Mother’s statement and the neighbor’s statement)
required an exception to the hearsay rule. See Pa.R.E. 805 (Hearsay Within
Hearsay).
Mother’s statement (“I’m going to Narcan you”) meets an exception to
the hearsay rule. See Pa.R.E. 803(25)(A) (“The statement is offered against
an opposing party and: (A) was made by the party in an individual or
representative capacity”). However, Mother’s statement was alleged by the
neighbor. As the neighbor did not testify, her statement must fit within its
own exception under either Pa.R.E. 803 (Exceptions to the Rule Against
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2 Narcan refers to the trademark name for Naloxone, which when administered
can reverse the effects of an opioid overdose.
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Hearsay – Regardless of Whether the Declarant is Available as a Witness) or
Pa.R.E. 804 (Exceptions to the Rule Against Hearsay – when the Declarant is
Unavailable as a Witness).
Neither of the proponents of the neighbor’s statement (DHS or the
Child’s GAL), nor the juvenile court addressed whether the neighbor’s
statement fit within a hearsay exception. In apparent agreement that the
neighbor’s statement constituted impermissible hearsay, the juvenile court
said it would only consider the statement for dispositional purposes and not
for the initial question of whether the Child should be adjudicated dependent.
See N.T. at 17.
Under the Juvenile Act, an adjudicatory hearing has two distinct phases.
First, the juvenile court must ascertain, after hearing the evidence on the
dependency petition, whether the child is dependent – i.e., without proper
parental care or control. See 42 Pa.C.S.A. § 6341(a). Second, if the court
finds from clear and convincing evidence that the child is dependent, the court
shall proceed to make a proper disposition of the case. See § 6341(c).3
Importantly, the Juvenile Act provides for a relaxed evidentiary standard when
it comes to the dispositional phase:
(d) Evidence on issue of disposition. –
(1)(i) In disposition hearings under subsections
(b) and (c)[relating to dependency] all evidence helpful
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3The “disposition” of a dependent child refers to where the child will live,
under what conditions, and who will assume physical and/or legal custody.
See generally 42 Pa.C.S.A. § 6351.
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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.
[...]
(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) (emphasis added).
When the juvenile court explained that it would admit the hearsay
testimony for dispositional purposes only, the parties’ respective counsel
sought clarification:
[Father’s] counsel:[4] I just want to complete the
record, Your Honor. I
understand that it’s for the
dispositional purposes, but we
are not at disposition. We are
not at adjudication and if that
information comes in you are
Judge and jury. That is
prejudicial.
The court: Understood. I’ll use it for
dispositional purposes as you
know we do both adjudication
and disposition in the same
hearing. I will be able to [parse]
out the information that’s
received.
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4 According to Mother’s Brief, the transcript of this exchange mistakenly refers
to Mother’s counsel, when it should have referred to Father’s counsel. See
Mother’s Brief at 21, n.5 (citing N.T. at 17, lines 11-15).
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N.T. at 17 (footnoted added).
We share Mother’s concern that acceptance of inadmissible hearsay
during the adjudicatory phase is problematic, even if the same testimony may
be considered during the dispositional phase. Still, we must recognize that
our trial judges are perfectly capable of entertaining a thought for one
purpose, without accepting it for another. Our Rules of Evidence require
triers-of-fact to do just that: “There are many situations in which evidence of
a statement is offered for a purpose other than to prove the truth of the matter
asserted.” See Pa.R.E. 801 – Comment. Although it cannot be the case that
the disposition exception swallows the entirety of the Rules of Evidence, here,
Mother’s challenge is unavailing. For one, Mother does not raise the issue of
where this line must be drawn. She only alleges that this testimony
constituted impermissible hearsay for adjudicatory purposes. Evidently, no
one disagreed, and the court did not consider it for that reason. More
importantly, to remove all doubt as to whether the court considered the
hearsay for improper reasons, we note that the court’s dependency
adjudication is supported by independent, competent evidence concerning
Mother’s drug use, as we explain infra. Accordingly, Mother’s claim merits no
relief on this point.
Mother’s next example of the juvenile court’s admission of impermissible
hearsay concerns the allegation that there was domestic violence in the home.
During Mother’s cross-examination, the following exchange took place:
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Mother’s counsel: So in the previous investigation there
was information about some
arguments in the home. Is that
accurate?
DHS social worker: Some domestic violence. And I also
called the police district that stated
there were several calls –
Father’s counsel: Objection. Hearsay.
The court: Overruled. She opened the door.
DHS social worker: I called the police –
Father’s counsel: I didn’t open the door.
The court: Overruled.
DHS social worker: I called the police district and they
stated there were several calls in
reference to domestic violence and a
protection order.
N.T. at 28 (emphasis added).
In its Brief, DHS argues that Mother failed to preserve this claim when
she did not object at trial; DHS further argues that Father’s objection does not
preserve Mother’s claim. See DHS’s Brief at 16-17, n.1. We agree.
With respect to evidentiary rulings, “[e]rror may not be predicated upon
a ruling that admits evidence unless a timely objection, motion to strike, or
motion in limine appears of record, stating the specific ground of objection, if
the specific ground was not apparent from the context.” Commonwealth v.
Parker, 104 A.3d 17, 28 (Pa. Super. 2014) (citing Pa.R.E. 103(a)(1)); see
also Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015) (holding
that the appellant failed to preserve hearsay objection where only counsel for
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the co-defendant objected). Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).
Instantly, Mother did not object to the DHS social worker’s testimony,
nor did she object elsewhere in her cross-examination of the social worker,
who proceeded to testify that there were at least six calls made over the
course of 2022. See generally N.T. at 29-31. We need not address whether
this admission of testimony constituted impermissible hearsay, as Mother
waives her claim on this point.
The final two claims of impermissible hearsay concern the Child’s
statements. The Child did not testify at the hearing, nor did the juvenile court
conducted an in camera interview of the Child. At the hearing, the Child’s
counsel elicited testimony that it was the Child’s desire to return to her
parents’ care. Although the DHS social worker testified that this was indeed
the Child’s preference, she couched the Child’s preference by alleging that the
Child also said somewhat contradictory statements:
Child’s counsel: So [the Child] doesn’t have any
concerns for safety in the home. Is that
correct?
DHS social worker: No, but she did mention that dad held
her hostage in the home once.
Child’s counsel: Okay.
Mother’s counsel: Objection.
Child’s counsel: [The Child] does still wish to return?
Mother’s counsel: Objection.
DHS social worker: Yes.
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The court: Overruled.
N.T. at 21-22.
Similarly, the CUA caseworker testified that the Child preferred to return
home, but she also cast doubt on the Child’s preference:
Child’s counsel: And what does she say?
CUA caseworker: [The Child] says she wants to go home.
Child’s counsel: Okay. And have you asked her if she
has any concerns about returning
home?
CUA caseworker: I have.
Child’s counsel: Okay. And what does she state?
CUA caseworker: [The Child] said she doesn’t have any
concerns, but [the Child] also stated
that her Mother told her not to trust me
and [the DHS social worker].
Mother’s counsel: Objection.
The court: Overruled.
CUA caseworker: She told me that her Mother said not
to address me and [the DHS social
worker] and that we wanted to keep
her out of the home. And she said that
her Mother told her not to tell us
anything.
Mother’s counsel: Objection.
The court: Overruled.
Id. at 47-48.
The second of these excerpts regarding the Child also contains hearsay
within hearsay – although Mother’s statement would meet the party opponent
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exception. See Pa.R.E. 803(25) (discussed supra). However, as we explained
above, each part of the combined statement must conform with an exception
to the rule. Pa.R.E. 805. The juvenile court overruled the objections, but this
time the court did not indicate that it would only consider the hearsay
testimony for dispositional purposes. In fact, the court held no discussion as
to whether the Child’s statements even constituted hearsay – i.e., that the
statement was not offered for the truth of the matter asserted, but for some
other reason – or whether the statement fit under an enumerated hearsay
exception. See 801; see also Interest of I.R.-R., 208 A.3d at 519 (citations
omitted).5 In its Pa.R.A.P. 1925(a) opinion, the juvenile court does not explain
its evidentiary rulings. Thus, we agree with Mother’s claim that these two
excerpts regarding the Child’s statements constituted inadmissible hearsay.
However, this does not end our analysis.
Next, we must consider whether the juvenile court’s evidentiary error
necessitates a new hearing or whether the error is harmless.6 How appellate
courts apply the harmless error doctrine depends on the type of case. See,
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5 A child’s out-of-court statement may nevertheless be admissible in certain
situations, none of which are present in this case. See 42 Pa.C.S.A. §§ 5985.1
(“Admissibility of certain statements”), 5986 (“Hearsay”).
6 Notably, not all errors are subject to the harmless error doctrine. “A
structural error is defined as one that affects “the framework within which the
trial proceeds, rather than simply an error in the trial process itself.” In re
Adoption of L.B.M., 161 A.3d 172, 183 (Pa. 2017) (citations omitted).
“Structural errors are not subject to harmless error analysis.” Id. (Citations
omitted). Any structural error requires a new trial. Here, the issue is an
evidentiary ruling, and thus a harmless error analysis is appropriate.
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e.g., Commonwealth v. Burno, 154 A.3d 764, 796 (Pa. 2017) (holding that
the harmless error analysis in a criminal case requires the following: (1) The
error did not prejudice the defendant or the prejudice was de minimis; or (2)
the erroneously admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted evidence of guilt
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.); cf.
Interest of J.M.G., 229 A.3d 571, 568 (Pa. 2020) (“In relation to civil cases,
[our Supreme] Court explained that the harmless error doctrine is subsumed
in a trial court’s two-step review of motions for new trial.”) (citing Harman
ex re. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)). 7
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7 In J.M.G., the High Court explained the two-step process as follows:
First a [trial] court must review whether an error occurred,
and secondly whether the error warrants a new
trial. The harmless error doctrine underlies every decision
to grant or deny a new trial. A new trial is not warranted
merely because some irregularity occurred during the trial
...; the moving party must demonstrate to the trial court
that he or she has suffered prejudice from the
mistake. Appellate review of a trial court's decision to grant
or deny a motion for new trial involves a similar two-stage
analysis. First, the appellate court must examine the
decision of the trial court that a mistake occurred. ... If the
appellate court agrees ... that a mistake occurred, ... [t]he
appellate court must then determine whether the trial court
abused its discretion in ruling on the request for a new trial.
(Footnote Continued Next Page)
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As far as we can discern, our Supreme Court has not addressed how
the harmless error doctrine is applied to a finding of dependency. However,
our Supreme Court has address harmless error in termination cases. The High
Court explained that “the standard for finding harmlessness in a termination
case requires us to conclude that the evidentiary error could not have had any
impact upon the orphans’ court’s decision.” In re A.J.R.-H., 188 A.3d 1157,
1175 (Pa. 2018) (citing In re Sanders Children, 312 A.2d 414, 417 (Pa.
1973)). In a termination proceeding, the harmless error standard is
seemingly heightened, “because of the serious impact attending the
termination of parental rights,” and because “it is important that a judicial
decree extinguishing such rights be based solely on competent evidence.”
A.J.R.-H., 188 A.3d at 1171 (citing In re Sanders Children, 312 A.2d at
417). Using In re Sanders Children as an example, the High Court in
A.J.R.-H. explained a single (and relatively small) mistake could still warrant
a reversal:
Notably, in In re Sanders Children, “the contested
evidence … constituted only a minor part of [the agency’s]
case,” consisting of a testimony regarding a single hearsay
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J.M.G., 229 A.2d at 586 (citing Harman, 756 A.2d at 1122-23) (internal
quotations omitted).
It is less clear how the harmless error standard applies to domestic relations
cases, where there is no post-trial motions procedure. But see J.C. v. K.C.,
179 A.3d 1124, 1129-30 (Pa. Super. 2018) (holding that the trial court’s
misapplication of the Uniform Child Custody Jurisdiction and Enforcement Act
did not contribute to the court’s decision, and because the moving party was
not prejudiced) (citing Harman, supra).
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document, but this Court nonetheless vacated the decree
because of the mere possibility that the evidence could have
impacted the decision of the orphans’ court.
Id. (citing In re Sanders Children, 312 A.2d at 417).
Unlike a termination decree, a dependency adjudication does not
extinguish parental rights. Thus, a lesser standard for harmless error may
apply in dependency cases. However, we need not decide that here, because
even if we employed the more exacting termination standard, we would still
conclude that the error was harmless.
In applying that standard to the instant case, we must discern whether
the juvenile court’s evidentiary error – i.e., the admission of the Child’s
statements – had any impact on its decision. Significantly, we recognize that
the harmless error standard must not be confused with the sufficiency of
evidence standard. A.J.R.-H., 188 A.3d at 1175 (citing In re Sanders
Children, 312 A.2d at 417). At this juncture, we are not deciding whether
there was other properly admitted evidence to support a dependency
adjudication. Instead, we look to the reasons for the court’s decision, and
then determine whether the hearsay statements impacted that decision.
The juvenile court determined that the Child was dependent for two
reasons: the parents’ substance abuse as well as the allegations of domestic
violence in the home. See N.T. at 63. The record contains competent
evidence to support each of these two reasons. As noted above, Mother’s
cross-examination elicited testimony that there had been at least a half dozen
calls to the local police station regarding domestic violence in the home. See
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id. at 28-31. As for the evidence of Mother’s drug use, competent evidence
supports this finding:
DHS counsel: Did you speak with [Mother] at that
time?
DHS social worker: Yes
DHS counsel: And what did you learn when speaking
with [Mother]?
DHS social worker: Mother admitted to having a substance
abuse history. She changed her last
usage time, like several times. She
initially stated that she last used ten
years ago. Then she stated four years
ago. Then she stated two years ago
back in May of 2022 when she had the
prior report.
Mother’s counsel: Objection. Is this something that
[Mother] said to you or is this
something that was in the prior report
because that would – I’m going to
object to that.
The court: I believe the witness just testified that
Mother admitted to substance abuse
use. Kept changing the dates of her
last use. So these are conversations
that this investigator had with your
client.
Id. at 15-16.8
Later in the hearing, Mother’s counsel elicited testimony that Mother had
last tested positive in May 2022, when DHS had previously investigated the
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8 Even though the testimony of Mother’s admission to drug use was also
hearsay, Mother’s admission falls squarely within the party opponent
exception. See Pa.R.E. 803(25).
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family. See id. at 27. Mother also elicited testimony that Mother had been
prescribed suboxone for a decade. See id. at 51.
Thus, the Child’s inadmissible statements did not concern either
Mother’s substance abuse, or the existence of domestic violence in the home.
To be sure, we must note that when the juvenile court stated its reasons for
the adjudication and disposition, the court said in the same breath that it was
concerned for the Child’s mental health. See id. at 63. However, this concern
does not stem from the Child’s inadmissible hearsay statements, but from the
testimony of James Rodgers, the CEO of the Child’s school. See generally
N.T. at 31-40.9 Mr. Rodgers testified the school would like to have the Child
evaluated for special education services based on “ED,” or “emotional
disturbance.” See id. at 34, 36.
In short, although we agree with Mother that the juvenile court erred
when it admitted the Child’s statements, we conclude that the error is
harmless because the statements had no impact on the court’s decision to find
the Child dependent. Although it is unclear precisely how the harmless error
standard should apply to dependency cases, the court’s error would be
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9 Mr. Rodgers appeared at the hearing “out of concern for [the Child].” See
N.T. at 32. Although Mother objected to Mr. Rodgers’ testimony for lack of
notice, Mother does not raise that claim on appeal. In fact, Mother relies on
Mr. Rodgers’ testimony to argue, in her third issue, that the court abused its
discretion when it removed the Child from the home. See Mother’s Brief at
26. The court admitted Mr. Rodgers’ testimony for dispositional purposes
only.
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harmless even under the stringent termination test. Thus, Mother’s first
appellate issue merits no relief.
In her second appellate issue, Mother argues that the juvenile court’s
adjudication of the Child was based on insufficient evidence. See generally
Mother’s Brief at 13-19. To adjudicate a child dependent, the court must
determine, by clear and convincing evidence, that the child:
is without proper parental care or control, subsistence,
education as required by law, or other care or control
necessary for his physical, mental, or emotional health, or
morals. A determination that there is a lack of proper
parental care or control may be based upon evidence of
conduct by the parent, guardian or other custodian that
places the health, safety or welfare of the child at risk.
42 Pa.C.S.A. § 6302(1).
“Clear and convincing evidence” is defined as testimony that is “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.”
Interest of L.V., 209 A.3d 399, 416 (Pa. Super. 2019) (citation omitted).
In accordance with the overarching purpose of the Juvenile
Act “[t]o preserve the unity of the family wherever
possible,” see 42 Pa.C.S.A. § 6301(b)(1), “a child will only
be declared dependent when he is presently without proper
parental care and when such care is not immediately
available. This Court has defined “proper parental care” as
“that care which (1) is geared to the particularized needs of
the child and (2) at a minimum, is likely to prevent serious
injury to the child.”
L.V., 209 A.3d at 416 (internal citations omitted).
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The standard of review in dependency cases requires an appellate court
to accept the findings of fact and credibility determinations of the juvenile
court if they are supported by the record; but it does not require the appellate
court to accept the juvenile court’s inferences or conclusions of law. I.R.-R.,
208 A.3d at 519 (citing In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)).
On appeal, Mother argues that the three causes for the Child’s
dependency (housing, substance abuse, and domestic violence) lacked
evidentiary support in the record. Immediately, we dismiss Mother’s claim
regarding housing as a strawman argument. By the end of the hearing, all
agreed that Mother’s housing was appropriate. Although the electric had been
turned off, it had been quickly restored. Moreover, the DHS caseworker
testified that the housing was otherwise suitable – the child had a bed, there
was food in the refrigerator, and there were no structural problems or issues
with the other utilities. Finally, when the court announced its decision from
the bench, the court said plainly: “The issues here are far more concerning
than electricity.” N.T. at 63.
As for the allegations of substance abuse and domestic violence, the
essence of Mother’s argument is that nothing really changed between the last
DHS investigation in May 2022 and the instant investigation in November
2022, which led to the Child’s adjudication. Although Mother admitted to using
drugs in May 2022, which was known to DHS during the last investigation,
Mother maintains that she has since followed her suboxone regiment, and she
cites the testimony indicated that she has never appeared under the influence.
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As for the domestic violence concern – specifically, the existence of over a half
dozen calls to the police station – Mother argues that the caseworker could
not testify with specificity as to the dates of those calls, nor what was said in
the calls to the police. Mother maintains that there was no new evidence of
domestic violence either.
After review, we discern no abuse of discretion. We understand Mother’s
argument that if nothing new occurred since the last investigation, which did
not result in a dependency adjudication, then the current investigation should
not result in one either. While this argument might undercut DHS’s rationale
that it has grave concerns for the Child’s safety, Mother’s argument does not
remove those concerns altogether. Whether the calls made to the police
station occurred before or after the last investigation, the fact remains that
the police were called over six times.
We certainly do not downplay the seriousness of domestic violence, but
the more deeply rooted evidence of dependency was Mother’s admission that
she tested positive in May 2022, during the prior investigation, coupled with
her evasiveness about her drug history during the current investigation. The
Child’s GAL accurately explained the concern in her closing argument:
The GAL: My main concern is that [Mother] is refusing to sign
any kind of releases. If she’s in a suboxone program
and if she’s active in it that’s because she goes there
daily or however many times, three times a week, so
that she can get suboxone. It doesn’t mean that she’s
getting therapy there or that she’s resolved any of her
drug and alcohol problems.
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If she had signed the releases and we had the
paperwork, and it was validating that she was [in] the
program we wouldn’t be here today. So that’s a
concern.
N.T. at 58.
We clarify that a parent’s prescribed use of suboxone is not per se
evidence that a child is without proper care. In fact, a parent’s proper use of
drug treatment medications could be evidence of the opposite proposition.
Nevertheless, courts should not have to close their eyes as to fact that
suboxone is prescribed to treat opioid dependence. Whether Mother relapsed
again or whether she is participating in a proper drug treatment program are
relevant questions to the larger issue of whether a child is without proper
parental care. The juvenile court heard testimony that Mother would not say
when she last used or whether she was still enrolled in an opioid treatment
program.
CUA caseworker: I talked to [the parents] about getting
records so we can prove that these
issues did not exist. They refused.
Both parents refused to sign any ROI’s.
They refused to sign the safety plan
with me.
I’ve met them multiple times in their
home. It is an in-home safety case, so
I do meet with them weekly.
I’ve provided bus passes for them to go
to their program and obtain records
and also to make it to court today.
[…]
Counsel for DHS: Okay. Alright. So you said you had an
opportunity to discuss the issues listed
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in, sorry, the petition, [domestic
violence] and substance abuse issues.
When you speak with [Mother] about
those issues what is typically her
response?
CUA Caseworker: She denies it. And she says that she
refuses to sign any releases because
she does not want CUA or DHS digging
up her past from twelve years ago.
And I was adamant that we would be
looking at the current year. At the time
it was 2022. And I told her we would
be looking at, you know, closer to this
time. And she was adamant that we
would not. And she stated that
someone else, she didn’t specify who,
had already brought up things to keep
us from her child. Things that
happened twelve years ago. And she
just refused.
So I asked her if she could bring her
own documents, if she didn’t feel
comfortable with me obtaining them
myself maybe she could go and get
them and present them to me. And
she said she would, but she has not.
N.T. at 43-44
Mother did not appear at the adjudicatory hearing to refute the
allegation she was being evasive about her history. The juvenile court had
the discretion to find the caseworker’s testimony credible, to make a negative
inference against Mother, and to conclude that the Child’s safety was at risk.
See L.V., 209 A.3d at 411 (“The [juvenile] court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
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determinations and resolve conflicts in the evidence.”) (Citations omitted).
Mother’s second appellate issue merits no relief.
In her third appellate issue, Mother argues that even if sufficient
evidence existed to adjudicate the Child dependent, the juvenile court abused
its discretion when it subsequently removed the Child from Mother’s home.
In In re D.A., A Minor, 801 A.2d 614 (Pa. Super. 2002) (en banc), this
Court explained:
If the court finds that the child is dependent, then the court
may make an appropriate disposition of the child to protect
the child's physical, mental and moral welfare, including
allowing the child to remain with the parents subject to
supervision, transferring temporary legal custody to a
relative or a private or public agency, or transferring
custody to the juvenile court of another state. 42 Pa.C.S.A.
§ 6351(a).
Id. at 617 (citation omitted); see also In re M.L., 757 A.2d 849, 850-51 (Pa.
2000).
However, even after a child has been adjudicated dependent, a court
may not separate that child from the parent unless it finds that the separation
is clearly necessary. Interest of N.S., 237 A.3d 546, 551 (Pa. Super. 2020)
(citing 42 Pa.C.S.A. § 6301(b) (relating to the Juvenile Act’s purpose to
keeping families together) (mentioned supra)). Such necessity is implicated
where the welfare of the child demands that they be taken from their parents’
custody. N.S., 237 A.3d at 551 (citation omitted). “Clear necessity” is
established when the court determines that alternatives are not feasible. Id.
(citing A.N. v. A.N., 38 A.3d 326 (Pa. Super. 2012)).
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In support of her argument, Mother cites testimony: that the home was
suitable; that she visited the Child and brought her food following the Child’s
safety plan placement with the family friend; that she made an appointed to
have the Child tested for ADHD; and that the Child was a good student.
After review, we discern no abuse of discretion. Although Mr. Rodgers
testified that the Child was doing well academically, the CEO evidently took it
upon himself to attend the dependency hearing out of concern for the Child’s
emotional well-being. Specially, Mr. Rodgers’ concern was that he could not
obtain parental consent to have the Child evaluated for special education,
because Mother was unresponsive. See N.T. at 34. Mr. Rodgers testified that
the school had provided the Child’s temporary placement caregiver with a
school uniform, toiletries, and a gift card to buy groceries. Id. at 35.
More to the point, the juvenile court simply could not verify that the
Child would be safe in Mother’s home. As the record stood, however, no one
could vouch for the Child’s well-being; no one could testify that alternatives
were feasible. Parents’ distrust of a child protective services agency is not
uncommon. We do not suggest that a parent must admit to the allegations
of the child protective services report, or that a mere denial of the allegations
constitutes grounds to remove a child. But where a child has been adjudicated
dependent, and the court has no evidence to gauge whether the child would
be safe in the home or whether alternatives might be feasible (i.e., keeping
the Child in the home but with additional services), then “clear necessity” is
established. Mother’s final contention is without merit.
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To conclude: regarding Mother’s cited examples of impermissible
hearsay testimony, we agree that the admission of testimony regarding the
Child’s statements constituted an error. However, the error was harmless.
The record contains sufficient evidence that the Child was dependent. The
juvenile court did not abuse its discretion when it removed the Child from the
home, following the adjudication.
Order affirmed. Jurisdiction relinquished.
JUDGE DUBOW did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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