In the Int. of: M.G. Appeal of: D.G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.G., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: D.G., FATHER
No. 1597 EDA 2019
Appeal from the Order Entered May 30, 2019
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0000684-19
IN THE INTEREST OF: L.G., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: D.G., FATHER
No. 1598 EDA 2019
Appeal from the Order Entered May 30, 2019
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0000683-19
BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.1
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 11, 2020
____________________________________________
1 Retired Senior Judge assigned to the Superior Court.
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Appellant, D.G. (“Father”), appeals from the orders of May 30, 2019
declaring his children, M.G. and D.G. (“Children”), dependent, and placing
them in the home of Children’s paternal great aunt and uncle. We affirm.
On April 26, 2019, N.D. (“Mother”) found two-year-old L.G. on N.D.’s
bed with dilated pupils, breathing slowly and staring blankly. Mother had left
L.G. on the bed watching television while Mother went to the bathroom to do
her hair. Recognizing the symptoms and believing L.G. found and ingested
an LSD pill from Mother’s purse, which was also on the bed, Mother called an
ambulance. St. Christopher’s Hospital treated and observed L.G. and then,
pursuant to an order for protective custody obtained by Philadelphia
Department of Human Services (“DHS”), released her to the custody of her
paternal great aunt and uncle. L.G. has not suffered any further complications
from ingesting LSD.
As of this incident, Mother and Father were separated but still living in
the same home. Mother claimed she found the LSD pill in the couple’s car,
that it belonged to Father, and that she put it in her pocketbook so that Father
could not ingest it. A toxicology screen was performed 18 hours after L.G.
reportedly ingested the pill, too late to confirm the presence of LSD, which
clears the human blood stream within 12 hours. Nonetheless, Dr. Martina
Lind, one of L.G.’s treating doctors, testified that L.G.’s symptoms were
consistent with LSD ingestion.
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Upon entry of the protective custody order for L.G., DHS devised a
safety plan that forbade, among other things, Mother to leave the couple’s
other child, nine-year-old M.G., home alone with Father. Mother promptly
violated that provision, and DHS obtained an order of protective custody for
M.G. as well, placing him with paternal great aunt and uncle. A DHS
investigation revealed no prior abuse or neglect of either child, and that
Mother and Father maintain an appropriate home.
After securing protective custody, DHS filed dependency petitions for
Children. The trial court conducted hearings on May 9 and May 30 of 2019.
At the conclusion of the hearing the trial court adjudicated Children dependent
and found that placement outside the home was necessary. Father filed these
timely appeals. He raises three issues for our review:
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 L.G. and M.G. are dependent
children[?].
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 L.G. and M.G. from their home[?]
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)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 L.G. and M.G. from their home[?]
Father’s Brief at 3.
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We conduct our review as follows:
[W]e must accept the facts as found by the trial court unless
they are not supported by the record. Although bound by the
facts, we are not bound by the trial court’s inferences, deductions,
and conclusions therefrom; we must exercise our independent
judgment in reviewing the court’s determination, as opposed to
its findings of fact, and must order whatever right and justice
dictate. We review for abuse of discretion. Our scope of review,
accordingly, is of the broadest possible nature. It is this Court’s
responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has applied the
appropriate legal principles to that record. Nevertheless, we
accord great weight to the court’s fact-finding function because
the court is in the best position to observe and rule on the
credibility of the parties and witnesses.
Interest of K.C., 156 A.3d 1179, 1183 (Pa. Super. 2017)
Father argues the trial court erred in finding Children dependent because
of one isolated incident with L.G., when no other evidence indicates that
proper parental care and control were lacking. Father argues the trial court
erred when it focused on the seriousness of the incident and the potential
danger to L.G.
The Pennsylvania Juvenile Act defines “dependent child” in relevant part
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[.]
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42 Pa.C.S.A. § 6302, “Dependent child.” “The question of whether a child is
lacking proper parental care and control so as to be a dependent child
encompasses two discrete questions: whether the child presently is without
proper care or control, and if so, whether such care and control are
immediately available.” In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002).
Proper parental care, in turn, is “that care which (1) is geared toward the
particularized needs of the child and (2) at a minimum, is likely to prevent
serious injury to the child.” Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super.
1997). The petitioner must establish dependency by clear and convincing
evidence. Id. at 843. That is, the evidence must be “so clear, direct, weighty,
and convincing as to enable the trier of facts to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue.” Id.
Father relies on C.R.S., in which this Court reversed a finding of
dependency where the child suffered trauma, but the record indicated that the
child’s injuries were consistent with resuscitation efforts after a bout of sleep
apnea rendered the child unconscious. Id. at 843-45. The child had been
abused on prior occasions, but the trial court concluded that the parents had
made progress and that the prior incidents did not support a finding of present
or future inability to render proper care and control. Id. at 845-46.
Father also relies on In re T.D., 553 A.2d 979 (Pa. Super. 1988),
appeal denied, 569 A.2d 1369 (Pa. 1989), in which the child’s mother was
failing to take her to therapy in accord with a service plan. The trial court
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found the child dependent, reasoning that the child was a victim of sexual
abuse, and that she was coping with the accidental death of a younger sister.
Id. at 980-81. This Court reversed in a split decision, noting that testifying
witnesses had not personally observed any ill effects in the child stemming
from her failure to attend therapy. Id. at 982. Furthermore, the witnesses
who testified that lack of therapy would harm the child were not psychologists
or psychiatrists. Id. at 982-83.
Instantly, the trial court found a serious risk of injury to Children
because, two-year-old L.G. was left unattended and within reach of an LSD
pill. Dr. Lind testified that serious injury to L.G. was possible because she was
physically developed enough to be mobile, and she was probably hallucinating
from ingesting LSD. N.T. Hearing, 5/30/19, at 16. Moreover, the trial court
credited Mother’s testimony that L.G. ingested LSD that belonged to Father,
and Father never offered any evidence to contradict Mother’s testimony.2 Dr.
Lind said L.G.’s symptoms were consistent with ingestion of LSD, and nothing
in the record evidences any other cause for the symptoms. This case, unlike
T.D. and C.R.S., involved an incident that created a risk of serious injury to a
child, and the possibility that a similar incident could occur in the near future,
given Father’s dismissiveness and his dishonesty about his recreational drug
____________________________________________
2 Father argues on appeal that the only evidence of his LSD possession was
inadmissible hearsay, but he failed to make a hearsay objection at the hearing.
N.T. 5/30/19, at 29. He cannot raise this issue for the first time on appeal.
Pa.R.A.P. 302(a).
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use. The record before us supports a finding, by clear and convincing
evidence, that L.G. was without proper parental care and control—as of the
time of her ingestion of LSD—because of the likelihood of serious injury to
L.G.
Next, we will consider whether such care and control was immediately
available. On this point, the record reflects that Father was dismissive when
confronted with the fact that L.G. was taken to the hospital after ingesting
LSD that belonged to him, and that he reported no drug history. N.T. Hearing,
5/30/19, at 31-32. At a screening on May 9, 2019, Father tested positive for
marijuana.3 According to Mother, both she and Father had a history of
recreational drug use, including LSD. Id. at 29.
For context, we provide the entirety of the trial court’s opinion:
So, with respect to these adjudicatory phase [sic] of this
case, it’s absolutely preposterous that there would even be a
request that I not adjudicate dependent, based on the seriousness
of this incident.
And while, quite frankly, I’m glad that it didn’t turn out in
the alternative, LSD is not a drug that I’m willing to gamble on
with a child’s life. And let me be clear.
____________________________________________
3 The record also reflects that Father’s creatinine was diluted. N.T. Hearing,
5/30/19, at 32. According to various unpublished memoranda from this Court,
diluted creatinine evidences a person’s ingestion of certain fluids in attempt
to mask the presence of drugs in his or her urine. In re P.B., 2019 WL
4415159 (Pa. Super. Sept. 16, 2019); In re A.J.O., 2017 WL 3382461 (Pa.
Super. Sept. 6, 2017). Father notes that no witness testimony or other
evidence in the instant record explains this significance of his diluted
creatinine. We have not relied on this fact in support of our decision.
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I am incorporating the testimony from the shelter care
hearing of 5/1, at which point, I ordered mom upstairs for a
screen, which she took, and mom was positive for marijuana.
And, while this court is usually liberal in terms of marijuana
use, understanding how far we’ve come in terms of views around
marijuana, when I have to consider the safety of a two-year-old
in making sure that you always are able to react to the needs of
a two-year-old and, quite frankly, a nine-year-old, I’m not willing
to gamble.
That being—so, I am definitely adjudicating both children
dependent, based on present inability. With respect to the
commitment from DHS, for purposes of today, I am going to do a
full commit to DHS.
I don’t anticipate that this needs to be a long-term
commitment to DHS, and I will bring this case back before me in
the next 90 days, in the hopes that at least mom can start testing
negative for the marijuana.
[…]
I can’t take lightly the fact that LSD was available and easily
accessible. The operative thing would have been, when mom
found the LSD, to throw it out.
When you realize that you have a two-year-old who is
moving around, and into everything, that would’ve been the most
appropriate thing to do, instead of just holding onto it.
N.T. Hearing, 5/30/19, at 46-48.
Based on the foregoing, we reject Father’s argument that the trial court
adjudicated Children dependent based solely upon on the seriousness of a
single incident. In addition to the seriousness of the incident, the trial court
was concerned that Father would not be responsible enough to prevent a
similar incident from occurring in the near future, either with L.G. again or
with nine-year-old M.G. The record supports the trial court’s finding because,
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as we have already noted, Father was dismissive of the incident and because
Father tested positive for marijuana after having denied any recreational drug
use. For these reasons, we discern no error in the trial court’s finding that
proper parental care and control was not immediately available to Children.
Next, Father argues that the record does not support the trial court’s
decision to remove Children from the home. This argument is simply a repeat
of Father’s argument that the trial court improperly relied on a single serious
incident. Father notes that the couple’s house was appropriate, and there was
no evidence of past abuse. Once again, we reject Father’s argument based
on the record support for the trial court’s concern that such an incident could
happen again, potentially resulting in serious injury to one of the children.
Both parents continued with their recreational drug use after the incident with
L.G., and Father was dismissive of the incident and dishonest about his
recreational drug use. We conclude the trial court did not err in removing
Children from the home with the hope of returning them once it was satisfied
that they would not have access to dangerous drugs.
In his third and final argument, Appellant claims the trial court erred in
finding that DHS did not fail to make reasonable efforts to prevent placement
of Children. Section 6351(b) of the Juvenile Code requires certain findings
prior to placement of children outside of their home:
(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:
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(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 (relating to informal hearing) that reasonable efforts
were not made to prevent the initial removal of the child from 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.A. § 6351(b).
As set forth above, Children were removed from the home prior to the
adjudicatory hearing, without DHS having offered any preventative services.
In connection with the entry of the shelter care order of May 1, 2019, the trial
court found that no services were necessary due to the emergency that arose
with L.G. Order, 5/1/19 (“Further, the [c]ourt hereby finds that to allow this
child to remain in the home would be contrary to the child’s welfare, and that
[p]reventive services were not offered due to the necessity for emergency
placement […].”). Thus, pursuant to § 6351(b)(3), the question is whether
the lack of preventative services was reasonable under the circumstances.
Given our recitation of the evidence above, especially Dr. Lind’s testimony that
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L.G. was at risk of suffering a serious injury, we conclude the record supports
the trial court’s finding. Furthermore, the record reflects that DHS
implemented a safety plan while L.G. was still in the hospital, pursuant to
which Children could remain at home so long as neither was left home alone
with Father. The parents promptly violated that condition when Mother went
to the hospital to visit L.G., leaving M.G. home alone with Father. The violation
of the safety plan, in addition to L.G.’s need for emergency treatment,
prompted the trial court to place both children with their great aunt and uncle.
Father’s argument ignores the import of § 6351(b)(3) and the evidence of
record.
Because we have considered each of Father’s arguments and found no
basis for reversal of the trial court’s order, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
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