In the Int. of: N.A., Appeal of: E.A. ( 2021 )

J-A08012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.A., MOTHER :
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: No. 1995 EDA 2020
Appeal from the Order Entered October 21, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000950-2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED MAY 05, 2021
E.A. (“Mother”) appeals from the order entered on October 21, 2020
that adjudicated her daughter, N.A. (“Child”), dependent. The court also
ordered that it was in Child’s best interest to be removed from Mother’s home
and transferred legal custody to the Philadelphia Department of Human
Services (“DHS”), with placement to remain in kinship care. On appeal, Mother
challenges the trial court’s determination: (1) that Child met the definition of
a dependent child, (2) that Child be removed from Mother’s care, and (3) that
DHS made reasonable efforts to prevent or eliminate the need for removal.
After careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
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In August 2020, DHS received a General Protective Services (“GPS”)
report after Mother had given birth to Child. The report laid out Mother’s
extensive history with DHS, including that her rights to all of her previous
children had been terminated, and that the children had all been adopted. It
also detailed that Mother had a history of mental health concerns and had
been diagnosed as suffering from bipolar disorder and detachment disorder
when she was a teenager. Regarding her current situation, the report alleged
that Mother had tested positive for marijuana in the beginning of her
pregnancy with Child but tested negative for substances at subsequent
prenatal appointments and at the time of admission. Finally, the report stated
Mother resided in a rooming home and that Mother had alleged she was
prepared to take care of Child. DHS determined the report was valid.
Child was released from the hospital directly to Kinship guardians, who
were provided as a resource by Mother. Kinship guardians had adopted two of
Mother’s previous children.
On September 1, 2020, DHS filed a dependency petition with respect to
Child. In the petition, DHS summarized the information in the GPS report and
detailed its history with Mother concerning the eventual termination of her
parental rights to her four previous children, between 2011 and 2016. Further,
DHS detailed its visits with Mother, including visits to her home, and visits
with Child at Mother’s aunt’s home.
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The adjudication hearing was held on October 21, 2020. During the
hearing, Julia Kendrick, a social worker with DHS, testified that Mother had
been renting a room with a roommate, and that they did have items for the
baby, including clothes and bottles, and a place for the baby to sleep. See
N.T., 10/21/2020, at 15-16. Kendrick clarified that a clearance check was run
on Mother’s roommate and his clearance “was fine.” See id. at 16.
On cross-examination, Kendrick testified that she had contact with
Mother and Child at the hospital at the time of Child’s birth, and that Mother
did not present any safety risk to Child at the time. See id. at 20. In the
dependency petition, Kendrick had noted that there were substance abuse
issues for Mother. In her testimony, Kendrick clarified that Mother had tested
positive for marijuana once, early in the pregnancy, but that Mother tested
negative for substances at later prenatal appointments. See id.
Next, Anna Faye, a caseworker who had been working on the case and
had observed Mother, testified that she did not know if a parental capacity
evaluation had been completed and that she had not ordered one. See id. at
24. However, she testified that she believed it would be helpful to have one
completed now, since she found that although Mother cares for her child, she
had some concerns regarding Mother’s “cognitive functioning in her ability to
handle multiple and bigger issues at once” and regarding Mother’s “poor social
boundaries.” Id. at 25. As an example, Faye testified that Mother agreed to
have her current roommate move in with her, and share a bed with her,
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despite not knowing him previously. See id. Of note, had Child come home
with Mother from the hospital after birth, Child would have been living in the
same room with Mother and roommate.
A portion of Faye’s testimony is then spent on alleged racial comments
Mother had made to an ex-boyfriend, who at the time of the hearing had
alleged he was the father.1 This testimony was offered as relevant to Mother’s
capacity and cognitive functioning. Mother’s counsel timely objected to
admission of this testimony based on relevance, stating these comments did
not sound like they would support such an argument. See id. at 26. However,
the court overruled the objection, and allowed the testimony, stating “to be
frank, I won’t know until I hear them, so [I] am going to give a little bit of
leeway.” Id.
Finally, Faye testified that although Mother was happy to see Child
during visits, and interacted with Child in a loving and caring way, Faye was
concerned that Mother was spending too much time during visits video calling
family members and friends. See id. at 35. Faye was specifically concerned
about an occasion when the conversation turned inappropriately sexual with
Child present. See id.
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1 The testimony also centered on concerns regarding the ex-boyfriend sending
pornographic photographs of Mother to friends and family. However, as the
ex-boyfriend is not a part of this appeal, and in fact has since been found not
to be the father, this discussion is not relevant to our analysis. See Appellant’s
Brief, at 2, FN1.
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Lastly, Mother testified on her own behalf. She explained that the
comments to her ex-boyfriend were made out of anger due to the status of
their relationship at the time. See id. at 46. She clarified that she has been
seeing a therapist since shortly after she had Child and has discussed those
comments with her therapist. See id. at 46-47. She further explained the one
positive test for marijuana early in the pregnancy, testifying that before she
knew she was pregnant, she had decided to celebrate getting a new job by
smoking with some friends. See id. at 47. She clarified this is why she had
tested positive early in the pregnancy and that once she found out she was
pregnant she never smoked or drank for the remainder of the pregnancy and
received all negative tests since the first one. See id.
Mother testified that she has since moved into a two-bedroom
apartment and that there would be room for Child to live there. See id. at 48.
She testified that Child would live in Mother’s room for now, and when she
grows up she would get her own room, since Mother’s roommate was moving
out soon. See id. She also testified that she had everything she needed for
Child and had applied for and was granted enrollment in the Women, Infant,
and Children (commonly known as WIC) program in order to take care of
Child. See id. at 49-50.
By order dated on the same day, the juvenile court adjudicated Child
dependent. See Order of Adjudication and Disposition, 10/21/20, at 1. The
court found that it was in Child’s best interest and welfare to be removed from
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the home, and that DHS made reasonable efforts to prevent or eliminate the
need for removal. See id. at 1-2. The court further ordered that legal custody
transfer to DHS with Child’s placement to remain in kinship care. See id. at
2. The court granted Mother liberal visitation supervised by the kinship
guardians and scheduled an initial permanency review hearing for March 3,
2021. See id. Finally, the court stated the current placement goal for Child
was to return to a parent or guardian. See id. This timely appeal followed.
On appeal, Mother presents the following issues:
1. Whether the trial court erred as a matter of law or abused its
discretion in finding that [DHS] 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 [DHS] met its burden to prove that it was
clearly necessary to remove [Child] from her mother’s care.
3. Whether the trial court erred as a matter of law in making the
pre-placement finding required by 23 Pa.C.S.A § 6351(b)(2) of
the Pennsylvania Juvenile Act, by determining that [DHS] made
reasonable efforts to prevent or eliminate the need for the
removal of [Child] from her mother’s care.
4. Whether the trial court erred as a matter of law by allowing the
admission of and relying on inadmissible evidence.[2]
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2 While Mother presents this issue as a distinct issue in her statement of
questions involved, in the argument section of her brief, Mother abandons this
claim as a distinct issue, instead only making limited reference to this claim
in the discussion of her first issue. An issue identified on appeal but not
developed in the appellant's brief is abandoned and, therefore, waived. See
Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992). As
Mother failed to adequately develop the matter presented in her statement of
questions presented, we find it waived. See Commonwealth v. Williams,
732 A.2d 1167, 1175 (Pa. 1999) (noting relief is unavailable based upon
(Footnote Continued Next Page)
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Appellants Brief, at 3.
We review dependency adjudications with deference to the trial court’s
findings of fact, but not its conclusions of law:
[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).
Dependency matters are governed by the Juvenile Act, 42 Pa.C.S.A. §
6301, et seq.
A “dependent child” is defined, in relevant part, as one who 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[.] The
question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental
care and control, and if so, whether such care and control are
immediately available.
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.
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undeveloped claims for which insufficient arguments are presented on
appeal); see also See Pa.R.A.P. 2119(a) (“The argument shall be divided into
as many parts as there are questions to be argued; and shall have at the head
of each part - in distinctive type or in type distinctively displayed - the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”)
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In re G., T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal citations and
quotation marks omitted); see also 42 Pa.C.S.A. § 6302.
Following a finding of dependency, the juvenile court may enter an order
for the child's disposition pursuant to the Juvenile Act, which is “best suited to
the safety, protection and physical, mental, and moral welfare of the child.”
42, Pa.C.S.A. § 6351(a). In order to properly assess the proper disposition,
the court must ascertain several facts:
§ 6351. Disposition of dependent child.
...
(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; …
42 Pa.C.S.A. § 6351(b).
Mother’s issues are related, and so we review them together. The crux
of Mother’s argument is that there was insufficient evidence to support the
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court’s determinations. Specifically, she asserts DHS failed to present the
requisite clear and convincing evidence that Child was lacking proper parental
care and control and whether such care and control was immediately available.
Mother also argues the court failed to meet the legal standard for ordering
removal of Child from her home since they did not show that removal was
clearly necessary. According to Mother, even if Child was found to be
dependent, DHS could have crafted a safety plan to keep Child in Mother’s
home. This argument leads to Mother’s final argument, that the court erred in
finding that DHS made reasonable efforts to prevent or eliminate the need for
the removal of the Child from her home.
It is well-settled that “a finding of dependency can be made on the basis
of prognostic evidence and such evidence is sufficient to meet the strict burden
of proof necessary to declare a child dependent.” In re R.W.J., 826 A.2d 10,
14 (Pa. Super. 2003). In Matter of DeSavage, 360 A.2d 237 (Pa. Super.
1976), this Court rejected the argument that a child cannot be adjudicated
dependent unless the child is actually in custody of the parents and they are
shown unable to render care or control as defined in the Juvenile Act. We
explained:
Obviously, state interference with a parent-child relationship is a
most serious intrusion ... such an intrusion is properly tolerated
only in cases in which the Commonwealth sustains a very strict
burden of proof.... The rule of law appellants request us to
announce is overly restrictive. The legislature defined [“dependent
child”] in exceedingly broad terms precisely because it is
impossible to foresee all the possible factual situations that may
arise. Further the broad definition enables the experienced
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juvenile court judge to apply his training and compassion to the
unique facts of each case. The proposition asserted by appellants
would compel the juvenile court judge to place the child in the
home of the natural parents to determine whether they are able
to render proper care, and ignores the possibility that if the
“experiment” proves unsuccessful, the consequences to the child
could be seriously detrimental or even fatal.
Id. at 241–242.
The juvenile court stated that it found Child dependent due to Mother’s
history with DHS and her apparent drug use:
So based on the testimony taken for this case, I am going to
adjudicate [Child] dependent. What is concerning to me is one,
[Mother] has a history with DHS that has resulted in involuntary
terminations of other children. Two, based on the testimony that
I've heard, there are clear concerns regarding [Mother]’s mental
health. And while I'm not sure - and let me clear, they are
concerns that at one point there was some drug use. While mom
is indicating her drug of choice is marijuana, I have no way of
knowing that for sure, that's one. But two, I'm also concerned with
marijuana use with a child this young because this age for a child,
you need to be able to pay attention and to respond and react
relatively quickly. So I am going to adjudicate dependent based
on present inability.
N.T., 10/21/20, at 61. Further, the court decided to order a parenting capacity
evaluation based on the fact that Mother had not known her current roommate
when she invited him to live with her:
I typically don't order parenting capacity evaluations [“PCE”] at
an adjudicatory, but that's very concerning to me in light of the
history of this case and the fact that [Mother] has other children
who were removed from her care and subsequently involuntarily
terminated and thankfully who reside with [kinship guardians]
such that [Child] can have contact with her siblings.
Id. at 63.
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On the matter of whether Child should be committed to DHS, the court
stated the following:
So I am committing the child to DHS. With the commit to DHS, I
will find that it’s contrary to the health, welfare, and safety of the
child to return to mother at this time.
Id. at 67-68. The court acknowledged that Mother had a new address and
ordered CUA to assess the home once Mother’s roommate moved out. See id.
at 68.
We discern no abuse of discretion by the juvenile court based on the
totality of the circumstances in this case and the appropriate legal principles.
The testimony was sufficient to show valid concerns on DHS’s behalf, bolstered
by its history of involvement with Mother. DHS made an effort to observe
Mother prior to the adjudicatory hearing, but still had clear concerns regarding
Mother’s living situation and her ability to control her mental health issues.
Given the limited time period involved, it would not have been feasible for
DHS to have done more prior to the adjudication hearing that would have
been able to assuage its valid concerns regarding Mother. Without more
testing and observation, DHS could not discern whether Mother has resolved
the issues that led to the termination of her parental rights in the past. DHS
was able to order additional testing, programs and observation for Mother just
prior to, and after, the hearing in order to work towards the goal of
reunification.
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Notably, since the start of DHS’s supervision, Mother has started seeing
a therapist regularly and has procured housing that seems more adequate to
relieve some concerns regarding her prior living situation. Further, Child was
placed in kinship care, chosen with Mother’s approval,3 Mother was granted
liberal visitation, and the current placement goal is for Child to return to
Mother. The court will continue to review this matter at the permanency
hearings, the first of which already occurred on March 3, 2021, in order to
hopefully work towards the stated goal of reunification with Mother.
We find the juvenile court did not abuse its discretion. Accordingly, we
affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2021
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3 Kendrick testified Mother was willing to allow Child to go with the kinship
guardians. See id. at 23. DHS, therefore, did not obtain an order for protective
custody. See id.
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