In the Interest of: R.W., Appeal of: B.W. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.W. No. 1310 WDA 2014
Appeal from the Order entered July 2, 2014,
in the Court of Common Pleas of Westmoreland County,
Juvenile Division, at No(s): CP-65-DP-0000094-2014
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED JANUARY 27, 2015
B.W. (“Father”) appeals from the order which adjudicated dependent
his minor son, R.W. (“Child”), born in June of 2014.1 We affirm.
On June 19, 2014, the Westmoreland County Children’s Bureau
(“WCCB”) filed a dependency petition as to Child, alleging that Father was
incarcerated, and that he was an indicated perpetrator of physical and
sexual abuse of two of Child’s half-siblings. The petition also alleged that
Child’s mother (“Mother”) was an indicated perpetrator of medical neglect
for failing to report and failing to act after Father inflicted severe injuries on
one of her children, who is Child’s half-sibling. The petition indicated that
both Father and Mother were facing criminal charges.
1
At the time of the adjudication, Father had submitted to a paternity test to
determine whether he was the biological father of Child. The results of that
test are not contained in the certified record. However, on appeal, both
Father and the Guardian ad Litem, who submitted a brief as an appellee,
describe Father as Child’s biological parent.
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A dependency hearing was held on July 2, 2014, during which the trial
court heard the testimony of WCCB caseworker, Paula Cerra; Mother’s
therapist, Benjamin Yaroch; and L.C., Child’s maternal grandmother. An
order adjudicating Child dependent was entered that same day. On July 31,
2014, Father timely filed a notice of appeal, along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b).
Father now presents the following issues for our review, which we
have reordered for ease of disposition.
[I.] Whether the lower court erred in admitting hearsay
testimony of lay witnesses and medical experts[?]
II. Whether the lower court erred in relying upon evidence
presented at a custody hearing involving children who were not
children of [Father], and to which [Father] was not a party[?]
[III.] Whether the lower court erred in denying visitation
between Appellant Father and his [C]hild where the evidence did
not establish by clear and convincing evidence that supervised
visitation with [F]ather would pose a grave danger to the minor
[C]hild and the goal in the case is reunification[?]
Father’s Brief at 2.
We consider Father’s issues mindful of the following:
Our Supreme Court set forth our standard of review for
dependency cases as follows.
[T]he standard of review in dependency cases
requires an appellate court to accept the findings of
fact and credibility determinations of the trial court if
they are supported by the record, but does not
require the appellate court to accept the lower
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court's inferences or conclusions of law. Accordingly,
we review for an abuse of discretion.
In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010) (citation
omitted).
To adjudicate a child dependent, a trial 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. “Clear and convincing” evidence has been
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.” In re C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997)
(citation omitted).
In accordance with the overarching purpose of the Juvenile
Act “[t]o preserve the unity of the family whenever 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.” In re R.T.,
405 Pa. Super. 156, 592 A.2d 55, 57 (1991) (citation omitted).
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.” In re
C.R.S., supra at 845 (citation omitted).
In regard to when a child should be removed from parental
custody, we have stated:
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
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determines that alternative services that would
enable the child to remain with her family are
unfeasible.
In re K.B., 276 Pa. Super. 380, 419 A.2d 508, 515 (1980)
(citations omitted). In addition, this Court has stated: “[I]t is
not for this [C]ourt, but for the trial court as fact finder, to
determine whether [a child’s] removal from her family was
clearly necessary.” In re S.S., 438 Pa. Super. 62, 651 A.2d
174, 177 (1994).
In re A.B., 63 A.3d 345, 349-50 (Pa. Super. 2013); see also In re E.B., 83
A.3d 426 (Pa. Super. 2013) (quoting In re R.W.J., 826 A.2d 10, 14 (Pa.
Super. 2003)) (“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.’”).
Father’s first claim is that the trial court erred by admitting hearsay
testimony during the dependency hearing. Father’s Brief at 20-22. Father
cites to several instances where the trial court admitted alleged hearsay
evidence over the objection of counsel. Id. at 21-22.
When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on admissibility
are within the sound discretion of the trial court and will not be
overturned absent an abuse of discretion or misapplication of
law. In addition, for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the
complaining party.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.
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Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (quoting Stumpf v.
Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008), appeal denied, 962 A.2d
1198 (Pa. 2008)).
After a thorough review of the testimony presented during the
dependency hearing, we conclude that Father is not entitled to relief. Even if
we were to determine that the trial court erroneously admitted certain
hearsay testimony, this would not warrant a reversal of the trial court’s
order. Even excluding the statements to which counsel objected, there was
ample testimony produced during the hearing to support the adjudication of
dependency.
Ms. Cerra, the WCCB caseworker, testified that Child’s half-sibling,
A.M., was hospitalized due to “acute injuries to the scrotum.” N.T.,
7/2/2014, at 47. However, at the time A.M. was hospitalized, it was
determined that A.M. had pre-existing facial injuries. A.M.’s facial injuries
were beginning to heal, and it appeared that they had been inflicted days
before the hospitalization. Id. at 47, 64-66. Medical reports indicated that
A.M. was still in severe pain as a result of his facial injuries at the time he
was hospitalized, and Ms. Cerra confirmed, during cross-examination by
Father’s counsel, that the physician who examined A.M. indicated that “those
injuries would have caused severe pain and did require medical attention.”
Id. at 48, 65.
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Additionally, when Mother sent a picture of A.M.’s face to his biological
father, the father reacted with concern. Id. at 59. Mother responded by
stating multiple times that she did not want to get others involved, so that
she would not be investigated. Id. at 59-60. Ms. Cerra testified that, had
she been made aware of A.M.’s facial injuries at the time they occurred, she
would have put a safety plan in place. Id. at 64. She noted that she saw a
picture of A.M.’s face taken prior to his hospitalization, and that she believed
A.M. needed medical care based on viewing the picture. Id. at 30.
In sum, the testimony presented during the dependency hearing
established that A.M. suffered facial injuries causing severe pain, that the
seriousness of A.M.’s injuries was apparent, and that the injuries remained
untreated for days until A.M. was finally hospitalized as a result of injuries to
his scrotum. This evidence by itself is sufficient to affirm the adjudication of
dependency, as it demonstrates that Mother and Father had, at the very
least, subjected A.M. to extreme neglect. Based on this neglect, it was
reasonable for the court to conclude that Child is without proper parental
care or control, as Mother and Father have proven themselves incapable of
providing care that is likely to prevent serious injury to Child. See In re
G.T., 845 A.2d 870, 874 (Pa. Super. 2004) (holding that a child could be
adjudicated dependent where her parents failed to seek medical treatment
for the child’s sister, on the basis that the Court could “assume that any
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medical problem [the child] might have developed would have been similarly
ignored”).
Father’s next issue is that the trial court abused its discretion by
adjudicating Child dependent based on evidence presented at a custody
hearing involving Mother and the father of Child’s half-siblings. Father’s
Brief at 16-19. Father directs our attention to the findings of fact that were
issued by the trial court in conjunction with its dependency order, and
contends that the trial court erroneously took judicial notice of testimony
and exhibits presented at the custody hearing in order to support these
findings. Id. at 18-19.
Again, we conclude that Father is not entitled to relief. As we
explained, supra, there was ample testimony presented during the
dependency hearing to support the court’s conclusion that Child should be
adjudicated dependent. Thus, even if we were to conclude that the trial
court erred by taking judicial notice of evidence presented at the custody
hearing, reversal of the trial court’s order would be unwarranted.
Finally, Father argues that the trial court erred by denying him
visitation with Child. Id. at 9-16. This Court has explained that, in
dependency cases, “[w]here . . . reunification still remains the goal of the
family service plan, visitation will not be denied or reduced unless it poses a
grave threat.” In re C.B., 861 A.2d 287, 293 (Pa. Super. 2004), appeal,
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denied, 871 A.2d 187 (Pa. 2005) (quoting In re B.G., 774 A.2d 757, 760
(Pa. Super. 2001)).
The “grave threat” standard is met when “the evidence clearly
shows that a parent is unfit to associate with his or her
children;” the parent can then be denied the right to see them.
This standard is satisfied when the parent demonstrates a severe
mental or moral deficiency that constitutes a grave threat to the
child.
Id. (quoting In re C.J., 729 A.2d 89, 95 (Pa. Super. 1999)) (citations
omitted).
Here, while Father attempts to distinguish this matter from the facts of
C.B. and other cases, it is clear that he is not entitled to relief. Again,
sufficient evidence was presented during the hearing to support Child’s
adjudication of dependency. Additionally, evidence was presented to
support the conclusion that Father was the perpetrator of the abuse suffered
by A.M.
Ms. Cerra testified that Mother’s explanation for A.M.’s injuries was not
consistent with the information she received from medical personnel. Id. at
23-24. Ms. Cerra noted that there was no evidence that Mother had caused
the injuries, and that, as far she knew, Mother was not home at the time
A.M.’s scrotal injuries were sustained. Id. at 18, 24. Instead, Ms. Cerra’s
testimony indicated that Father inflicted A.M.’s injuries. For example, Ms.
Cerra testified, without objection, that “there was a disclosure made” that
A.M. had also been subjected to heinous acts of sexual abuse by Father. Id.
at 25. Ms. Cerra noted that Mother’s other children had been interviewed,
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and that one indicated that he had been “hit and kicked by [Father].” Id.
Thus, the evidence established that Father has demonstrated a severe
mental or moral deficiency that constitutes a grave threat to Child. No relief
is due.
Accordingly, because we conclude that the trial court did not abuse its
discretion by adjudicating Child dependent, we affirm the order of the trial
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2015
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