In the Interest of: H.P., Appeal of: S.P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.P., MOTHER :
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: No. 2091 EDA 2019
Appeal from the Order Entered July 15, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001151-2019
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 06, 2020
S.P. (Mother) appeals the order adjudicating her minor daughter, H.P.
(Child), born in June 2019, dependent, committing Child to care of DHS, and
placing Child in kinship care.1 We affirm.
The trial court set forth the relevant factual and procedural history of
this appeal as follows:
[The Philadelphia Department of Human Services (DHS)]
originally became involved with this family in 2013. DHS has
received numerous General Protective Services (GPS) and Child
Protective Services (CPS) reports regarding this family and
siblings[fn2] between 2013 and 2018 for issues including drug use
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* Retired Senior Judge assigned to the Superior Court.
1 J.M. did not appeal the adjudication order and has not filed a brief in the
instant appeal. As noted below, J.M. believed he was Child’s father but
requested a paternity test. The results of the paternity test were not included
in the certified record. Nevertheless, Appellant and the trial court referred to
J.M. as “Father,” and we do so as well in this memorandum.
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by parents, domestic violence, and failure to provide appropriate
medical care. Mother has been transient since May 2017. Mother
has a history of mental health [issues] and drug use. Mother’s
other children have open dependency matters. On June 14, 2019,
DHS received a GPS report alleging that Mother gave birth to
Child; Mother wanted to avoid contact with DHS as she previously
had children involuntarily removed from her care; Mother did not
receive prenatal care during the entire pregnancy; Mother resides
with Maternal Grandmother; Mother stated that she was prepared
to care for Child; and Father is involved.[fn3] This report is valid.
Child was subsequently transferred from Delaware County
Memorial Hospital to Children’s Hospital of Philadelphia [(CHOP)]
on July 9, 2019.
[fn2]Child has multiple older siblings that have been
involved with DHS on multiple occasions. Child has
two siblings that reside with their respective fathers;
two siblings [to whom] Mother’s parental rights were
involuntarily terminated on November 5, 2018; and
three siblings that have open dependency matters and
currently reside in foster care. [Father was the
biological parent of at least two of the three siblings
with open dependency matters. In March 2019,
before the hearing in the instant matter, the trial court
ordered a suspension of Mother’s visits with Child’s
siblings until Mother provided negative drug screens
for sixty days. There was no indication that Mother
complied.]
Mother has verbally identified Father. The trial
[fn3]
court ordered that Father complete a paternity test as
to Child. [The result of the paternity test was not
contained in the certified record in this appeal].
On June 17, 2019, DHS visited the home of Maternal Aunt. DHS
determined that Maternal Aunt’s home was appropriate and DHS
completed all necessary background clearances. On July 9, 2019,
DHS obtained an Order of Protective Custody (OPC) for Child in
order to ensure her safety. Child was subsequently placed with
Maternal Aunt, where she currently remains.
A shelter care hearing was held for Child on July 11, 2019. Mother
was present for this hearing. The trial court lifted the OPC and
ordered the temporary commitment to DHS to stand. The trial
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court ordered Mother to attend supervised visits with Child. On
July 12, 2019, DHS filed a dependency petition for Child.
On July 15, 2019, an adjudicatory hearing was held for Child.
Mother was present for this hearing. The trial court [also heard
and] incorporated all relevant testimony regarding Mother’s
objectives given during Child’s siblings’ permanency review. After
all testimony was given, the trial court found clear and convincing
evidence to adjudicate Child dependent. The trial court
discharged the temporary commitment to DHS[,] and Child was
fully committed to DHS based on a finding of present inability. The
trial court ordered Mother to sign releases, engage in parenting
specifically for Child’s medical needs, and [directed] Mother is not
to visit Child in Maternal Aunt’s home. The trial court suspended
Mother’s visitation on the grounds of grave threat until she
consistently engages in both mental health and drug and alcohol
treatment, as well as provide negative drug screens for 60 days.
If Mother complies with the objectives, Mother’s visits may be
reinstated to monthly line-of-sight and line-of-hearing supervised
visits at the agency with 24[-]hour and day-of confirmation . . . .
Trial Ct. Op., 9/25/19, at 1-2 (some formatting altered).
At the conclusion of the July 15, 2019 hearing, the trial court adjudicated
Child dependent and entered an order memorializing its findings and
conclusions. On July 21, 2019, Mother filed a motion for reconsideration,
although the trial court did not rule on the motion.2
Mother timely filed a notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) on July
23, 2019. The trial court filed a Rule 1925(a) opinion.
Mother raises the following issues on appeal:
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2Because the trial court did not rule on the motion for reconsideration and
Mother has proceeded with this appeal, the motion for reconsideration is
deemed denied. See Pa.R.C.P. 1930.2(b); Pa.R.A.P. 1701(b)(3).
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1. Whether the trial court erred as a matter of law or abused its
discretion in finding that the Philadelphia Department of
Human Services met its burden to prove, by clear and
convincing evidence, that [Child] was a dependent child.
2. Whether the trial court erred as a matter of law or abused its
discretion in finding that the Philadelphia Department of
Human Services met its burden to prove that it was clearly
necessary to remove [Child] from her parents’ care.
3. Whether the trial court erred as a matter of law in making the
pre-placement finding required by 23 Pa.C.S. § 6351(b)(2) of
the Pennsylvania Juvenile Act, by determining that the
Philadelphia Department of Human Services made reasonable
efforts to prevent or eliminate the need for the removal of
[Child] from her parents’ care.
Mother’s Brief at 3 (some formatting altered).
We summarize Mother’s first two issues together. First, Mother argues
that the court erred in adjudicating Child dependent. Mother’s Brief at 11.
Mother argues that DHS did not meet the second prong of the dependency
test because Father was available to care for Child. Id. Mother contends that
Father was not contacted prior to DHS obtaining custody of Child, and that, at
all times, Father has been ready, willing, and able to care for Child. Id. at
11-12.
Second, Mother argues that the court erred in determining that it was
clearly necessary for Child to be removed. Id. at 14. Mother claims that Child
could have been reunified with Father, as there were no issues concerning
abuse or neglect by Father. Id. at 15. Mother argues that the trial court
should have considered allowing Child to remain in Father’s care, under the
supervision of DHS. Id. at 15-16.
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Initially, we note that
[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). “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).
The burden of proof in a dependency proceeding is on the petitioner “to
demonstrate by clear and convincing evidence that a child meets that
statutory definition of dependency.” In re G.T., 845 A.2d 870, 872 (Pa.
Super. 2004) (citation omitted). Section 6302 of the Juvenile Act, 42 Pa.C.S.
§§ 6301-6375, defines a “dependent child” as a child who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk, including evidence of the parent’s,
guardian’s or other custodian’s use of alcohol or a controlled
substance that places the health, safety or welfare of the child at
risk[.]
42 Pa.C.S. § 6302. “The question of whether a child is lacking proper parental
care or control so as to be a dependent child encompasses two discrete
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questions: whether the child presently is without proper parental care and
control, and if so, whether such care and control are immediately available.”
G.T., 845 A.2d at 872 (citation and quotation marks omitted).
Our Supreme Court has held that “a child, whose non-custodial parent
is ready, willing and able to provide adequate care to the child, cannot be
found dependent . . . .” In re M.L., 757 A.2d 849, 849 (Pa. 2000). This
Court has further noted that
[w]hen a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on what
the parent wants or which goals the parent has achieved.
Moreover, although preserving the unity of the family is a purpose
of the [Juvenile] Act, another purpose is to “provide for the care,
protection, safety, and wholesome mental and physical
development of children coming within the provisions of this
chapter.” 42 Pa.C.S. § 6301(b)(1.1). Indeed, “[t]he relationship
of parent and child is a status and not a property right, and one
in which the state has an interest to protect the best interest of
the child.”
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some citations omitted).
Following an adjudication of dependency, the child may not be removed
from the care of a parent absent a showing of clear necessity for removal
namely, where the welfare of the child requires it. See In re A.L., 779 A.2d
1172, 1175 (Pa. Super. 2001). When the trial court removes a child from his
or her home, our Rules of Juvenile Court Procedure provide that the court
must determine whether “the child’s placement is the least restrictive
placement that meets the needs of the child, supported by reasons why there
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are no less restrictive alternatives available[.]” Pa.R.J.C.P. 1242(C)(3)(c);
see also Pa.R.J.C.P. 1514(A)(2).
In the instant case, the record supports the trial court’s conclusion that
Child was without proper parental care or control. We note that Mother does
not argue that she was available to provide proper care and control for Child.
The record shows that Mother has had a long history of contact with DHS,
including having seven other children removed from her care. At the time of
the hearing, Mother had her parental rights to two children terminated and
three other children had open dependency cases, including two children she
had with Father.
Moreover, as part of the previous family service plan for Child’s two
siblings, Mother was to obtain and maintain housing. Although DHS eventually
determined that Mother was living with Maternal Grandmother by 2019, the
former DHS social worker assigned to Mother’s case testified that there was a
period of time when Mother would say that she lived with Maternal
Grandmother, while Maternal Grandmother would state Mother lived in a
shelter. N.T., 7/15/19, at 54.
Similarly, under the previous family service plan, Mother was to address
her history of untreated mental health issues, substance abuse issues, and
domestic violence concerns. Id. at 21-22, 29-30. Mother, however, did not
engage in mental health treatment and anger management treatment or
enroll in a drug and alcohol program. Id. at 25-35. Indeed, based on Mother’s
ongoing substance abuse issues, the trial court entered an order suspending
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her visitation with her two other children until she was able to provide negative
drug screens for sixty days. Id. at 35-36. A drug screen from July 8, 2019,
one week before the adjudicatory hearing in this matter, showed that Mother
recently relapsed. See id. at 11, 35-36.
As to Child, Mother did not receive prenatal care during her pregnancy
with Child, and Child was born prematurely. Id. at 95. Child was a medically
needy baby as a result of vocal cord paralysis and feeding issues, and spent
several weeks in the hospital following her birth. Id. at 97-98. Additionally,
there was no indication that Mother took part in the medical training at the
Children’s Hospital of Pennsylvania (CHOP) to learn how to care for Child’s
daily needs. Id. at 97-103. The trial court also expressed concern as to
whether Mother could attend to Child’s medical needs, noting testimony that
during a visit with another child, she attempted to administer asthma medicine
when that child was not having an asthma attack. Id. at 61. Accordingly, the
record established that Mother was not able to provide proper care and control
for Child. See G.T., 845 A.2d at 872.
As to Mother’s specific contention that Father was available to provide
proper care and control for Child, the record shows the following. At the
dependency adjudication hearing, Father believed that Child was his, but
requested a paternity test. N.T., 7/15/19, at 6. Additionally, Father stipulated
to all allegations in the dependency petition. Id. at 7-10. Specifically, Father
stipulated that
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[Father] has a history of drug use and domestic violence with
[Mother]. [Father] also has a history of neglecting the medical
needs of his children when they were in his care. [Father] has
been diagnosed as suffering from personality disorder in 2017 and
it was recommended at that time that he attend individual
psychotherapy counseling and group therapy.
Dependency Pet., 7/12/19, at 2. DHS introduced into evidence Father’s
forensic parental capacity evaluation (PCE) and a single-page addendum to
the evaluation addressing Father’s criminal history.3 N.T., 7/15/19, at 16-17.
DHS recommended that Father (1) engage in drug and alcohol treatment, (2)
demonstrate six months of consecutive sobriety, (3) engage in mental health
treatment with a provider who can address his mental health needs and
domestic violence and work with him on insight, and (4) develop and
implement a sustainable financial plan. Id. at 41.
At the time of the hearing, there were indications that Father made
progress warranting increased visitation and a re-evaluation for reunification
with his two other children. See id. at 92-94. Father also expressed an
interest in caring for Child if he was Child’s biological parent. Id. at 90.
However, there was no evidence that Father had completed all of his goals
and could maintain the welfare, safety or health of his children. Given Child’s
medical needs, including the vocal cord paralysis resulting from her premature
birth, there was no indication that Father was capable of exercising proper
parental care and control of Child. Id. at 94, 97-98. Moreover, as noted by
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3 The PCE, although introduced into evidence, does not appear in the certified
record. Counsel for DHS avers that the report found that Father lacked the
capacity to provide permanency and safety for his children. Appellee’s Brief
at 4-5.
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the former DHS social worker, it was not yet confirmed that Father was a
biological parent of Child. Id. at 94.
Based on the foregoing, we conclude that the record belies Mother’s
arguments. The evidence supported the trial court’s findings that Child was
dependent, that Father was not a safe or appropriate option for Child’s care,
and that Child’s removal from parents’ care was clearly necessary. See G.T.,
845 A.2d at 872; see also In re B.B., 745 A.2d 620 (Pa. Super. 1999)
(finding that because the absent father was unknown to children, it prevented
his designation as a proper parental caregiver to them). Accordingly, Mother’s
first two appellate issues merit no relief.
In her third issue, Mother argues that the trial court erred in determining
that DHS made reasonable efforts to prevent the placement of Child. Mother’s
Brief at 16. Mother notes that DHS failed to contact Father or evaluate his
home prior to obtaining the OPC. Id. Mother also states that DHS failed to
visit her home or offer her services sufficient to address her intellectual
disability in the year prior to the birth of Child. Id. Mother relies on In the
Interest of S.A.D., 555 A.2d 123 (Pa. Super. 1989), In the Interest of
James Feidler, 573 A.2d 587 (Pa. Super. 1990), and In re W.M., 41 A.3d
618 (Pa. Super. 2012), to support her position that DHS did not take
reasonable efforts to prevent Child’s placement. Id. at 17-19.
Mother also argues that the trial court erred in failing to make a finding
that the lack of preventative services was reasonable under the
circumstances. Id. at 17. In sum, Mother contends that the trial court erred
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by failing to consider the findings of fact required by 42 Pa.C.S. § 6351(b) and
Pa.R.J.C.P. 1514(A)(5).
Section 6351(b) states:
(b) Required preplacement findings.—Prior to entering any
order of disposition under subsection (a) that would remove a
dependent child from his home, the court shall enter findings on
the record or in the order of court as follows:
(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; or
(3) if preventive services were not offered due to the necessity
for an emergency placement, whether such lack of services was
reasonable under the circumstances; or
(4) if the court has previously determined pursuant to section
6332[4] (relating to informal hearing) that reasonable efforts
were not made to prevent the initial removal of the child from
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4 Section 6332 states, in relevant part:
If the child is alleged to be a dependent child, the court or master
shall also determine whether reasonable efforts were made to
prevent such placement or, in the case of an emergency
placement where services were not offered and could not have
prevented the necessity of placement, whether this level of effort
was reasonable due to the emergency nature of the situation,
safety considerations and circumstances of the family.
42 Pa.C.S. § 6332(a).
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his home, whether reasonable efforts are under way to make
it possible for the child to return home; and
(5) if the child has a sibling who is subject to removal from his
home, whether reasonable efforts were made prior to the
placement of the child to place the siblings together or whether
such joint placement is contrary to the safety or well-being of
the child or sibling.
42 Pa.C.S. § 6351(b)(1)-(5).5
With regard to reasonable efforts at reunification, this Court has stated:
As the Office of Children and Families in the Courts has observed,
neither federal nor Pennsylvania law defines “reasonable efforts.”
Pennsylvania Court’s Office of Child and Families in the Courts,
Pennsylvania Dependency Benchbook, § 19.9.1, at 19–33 (2014).
Notwithstanding the lack of a legal definition, we discern the
following from prior cases. Because the focus of the Juvenile Act
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5 Similarly, Pennsylvania Rule of Juvenile Court Procedure 1514(A)(5) states:
A. Required findings. Prior to entering a dispositional order
removing a child from the home, the court shall state on the
record in open court the following specific findings:
* * *
(5) One of the following:
(a) Reasonable efforts were made prior to the placement of the
child to prevent or eliminate the need for removal of the child
from the home, if the child has remained in the home pending
such disposition; or
(b) If preventive services were not offered due to the necessity
for emergency placement, whether such lack of services was
reasonable under the circumstances; or
(c) If the court previously determined that reasonable efforts
were not made to prevent the initial removal of the child from
the home, whether reasonable efforts are under way to make
it possible for the child to return home.
Pa.R.J.C.P. 1514(A)(5)(a)-(c).
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is on the dependent child, as opposed to parents, any services for
parents must directly promote the best interests of the child. In
re J.R., [875 A.2d 1111, 1118 (Pa. Super. 2005)]. “By requiring
only ‘reasonable efforts’ to reunify a family, the statute recognizes
that there are practical limitations to such efforts.” Id. at 1118,
n. 5 (citing 4[2] Pa.C.S. §§ 6351(e) & (f)). “It is not sufficient for
the court to find simply that an action will promote family
reunification; the court must also determine whether the action
constitutes a reasonable effort towards reunification.” Id.
(emphasis in original). This Court has stressed that the agency is
not expected to do the impossible and is not a “guarantor of the
success of the efforts to help parents assume their parental
duties.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002)
(citing In re J.W., [578 A.2d 952, 959 (Pa. Super. 1990)]).
In Interest of C.K., 165 A.3d 935, 941-42 (Pa. Super. 2017) (footnotes
omitted).
Instantly, DHS obtained an OPC shortly after Child’s birth, but before
Child was discharged from CHOP. The OPC stated that DHS did not offer
preventive service due to the necessity for emergency placement and that the
lack of services was reasonable under the circumstances. See OPC, 7/9/19,
at 1. In the subsequent order adjudicating Child dependent and placing Child
in kinship care, the trial court noted, in part, that DHS “made [r]easonable
[e]fforts to prevent or eliminate the need from removal of [Child] from the
home.” Order of Adjudication and Disposition, 7/15/19, at 1. Following our
review, we conclude that the record supports the trial court’s determination.
As noted above, Father and Mother both had a history with DHS before
Child’s birth involving two of their other children. As to Father, despite his
progress with respect to his other two children, there was no indication that
Father was an appropriate placement resource for Child. Although Father
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believed he was Child’s father, he also requested a paternity test. Accordingly,
Mother has not established that DHS failed to exercise reasonable efforts when
it declined to evaluate Father’s home as a placement option.
As to Mother, the record established that DHS referred Mother for
services for her intellectual disability, but Mother “was unwilling to go.” See
N.T., 7/15/19, at 34. According to the former DHS social worker, Mother
“refused to do the paperwork” with DHS to arrange for an intensive case
manager to assist with the Office of Intellectual Disability. Id. at 57-58.
Mother also failed to address her mental health, substance abuse, or anger
management issues with respect to her other children. Notably, Mother
concealed from DHS that she was pregnant with Child. See id. at 23-24, 39.
Based on this record, we discern no merit to Mother’s argument that the trial
court erred in finding that DHS exercised reasonable efforts to prevent Child’s
removal from Mother’s care.
To the extent Mother relies on S.A.D. and Feidler, her reliance on those
cases is misplaced. In S.A.D., the mother went to the agency for assistance
and accomplished some of the goals set by the agency without any assistance.
S.A.D., 555 A.2d at 128. While there was no evidence of abuse or neglect,
the agency still refused to reunify the mother and the child. Id. On appeal,
we reversed the trial court’s adjudication of dependency, finding that the
agency failed to present clear and convincing evidence of dependency and
failed to make reasonable efforts to prevent the separation of mother and
child. Id.
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In Feidler, this Court concluded that the trial court abused its discretion
by finding that the removal of children from the parents’ home was necessary
because the parents violated the conditions the trial court had previously
imposed for keeping their children. Feidler, 573 A.2d at 590-91. In addition
to finding that the record did not support the trial court’s findings that the
parents violated the agency’s conditions, the Feidler Court noted that the
“record upon which to justify removal of [the] children from their family home”
was “woefully inadequate.” Id. at 589.
Here, in contrast to S.A.D. and Feidler, the record contains ample
evidence supporting the trial court’s determination that there was clear and
convincing evidence of neglect supporting the adjudication of dependency.
Similarly, we find Mother’s reliance on W.M. unpersuasive. W.M.
considered an agency’s responsibilities in the context of a voluntary placement
agreement and federal foster care maintenance payment funding. See W.M.,
41 A.3d at 627-29. To the extent W.M. commented on the reasonableness
of the agency’s efforts, that discussion was dicta. See id. at 629 (indicating
that this Court refused to consider the agency’s claim of reasonable efforts
because the issue was not preserved in its Rule 1925(b) statement, and
further, noted that the trial court found that the agency’s efforts were
reasonable).
Lastly, as to Mother’s claim that the trial court failed to consider Section
6351(b)(3), the record shows that the OPC contained a finding that that the
lack of preventative services was reasonable under the circumstances. See
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OPC, 7/9/19, at 1. Subsequently, the trial court did not expressly address
whether the lack of preventative services was reasonable in its adjudication
and disposition order. However, based on our review of the record, we
observe that the trial court was aware of the procedural history of the case,
including DHS’s efforts with respect to Child and Mother’s other children, and
found that DHS exercised reasonable efforts. Accordingly, under the
circumstances of this case, we conclude that Mother’s argument that DHS
failed to exercise reasonable efforts to prevent placement warrants no relief.
See In re R.J.T., 9 A.3d at 1190.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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