In the Interest of: F.W., a Minor ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: F.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
APPEAL OF: F.W., FATHER
Appellant No. 2259 EDA 2014
Appeal from the Order Entered June 30, 2014
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001439-2014
CP-51-FN-465690-2009
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J: FILED APRIL 14, 2015
F.W. (“Father”) appeals from the June 30, 2014 order of adjudication
and disposition wherein the juvenile court adjudicated his son, F.W.,1
dependent and placed the child in foster care. After a thorough review of
the certified record and applicable law, we affirm.
F.W. was born during September 2012. Prior to spring 2014, F.W.
resided with his birth mother, J.S. (“Mother”), and his two half-brothers.
The Philadelphia County Department of Human Services (“DHS”) has had
extensive interaction with Mother and her children. Between April 2010 and
November 2011, the agency issued three substantiated general protective
1
Since father and son share identical initials, hereinafter, our references to
F.W. relate to the child.
*
Former Justice specially assigned to the Superior Court.
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services (“GPS”) reports involving F.W.’s half-siblings. However, none of the
previous GPS reports resulted in any adjudications of dependency.
During April of 2014, Father obtained custody of F.W. without DHS’s
knowledge. Shortly thereafter, DHS reinitiated its involvement with the
family after Mother was arrested for recklessly endangering a child and for
recklessly endangering another person. Thereafter, the agency issued
another GPS report, and on June 19, 2014, the trial court adjudicated F.W.’s
two half-siblings dependent. The juvenile court continued the dependency
case relating to F.W. and directed DHS to obtain an order of protective
custody (“OPC”). Soon after interceding in this matter, DHS learned that
F.W. was in Father’s care. Indeed, Yolanda Shields, the DHS caseworker
assigned to the family, testified that she observed Father and F.W. together
in the 2100 block of North Percy Street in Philadelphia. She explained that
DHS declined to seek an OPC for F.W. at that juncture since Father’s
involvement in his son’s care was not alarming and the DHS investigation of
Father’s living arrangement was pending.
On June 23, 2014, Father contacted DHS and confirmed that he had
custody of F.W. since April 2014. Father provided DHS two Philadelphia
addresses: (1) 2131 North Percy Street; and (2) 1518 Myrtlewood Street, a
residence that is owned by his sister, C.W. (“Paternal Aunt”). While the
parties dispute how often Father stayed at the Myrtlewood Street residence
during the relevant period, it is undisputed that F.W. lived in that home
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since April 2014. DHS examined Paternal Aunt’s home and reviewed her
extensive criminal history. The agency determined that the physical
condition of the residence was acceptable. It had utilities, home safety
devices, food, and a toddler bed for F.W. Additionally, DHS found that,
although Paternal Aunt had an extensive criminal record, she did not commit
any offenses that would preclude her from being considered as a placement
option. However, since the agency was unable either to endorse Father at
that point or to document his full-time habitation at Paternal Aunt’s home, it
placed F.W. into foster care.
During the ensuing adjudicatory hearing, DHS presented testimony
from Ms. Shields and called Father to testify as if on cross-examination.
Father also testified on his own behalf. As it relates to the issues on appeal,
DHS presented evidence that Father, inter alia, made questionable parenting
decisions regarding F.W.’s welfare, lacked stable employment, failed to
reside with F.W. during the entire week, and had relatively recent
convictions for possession of marijuana and harassment. Significantly, the
2013 harassment conviction stemmed from an incident involving Mother.
Additionally, Father was convicted of indecent assault during 1992.
Depending upon the age of that victim, the juvenile court could have found
aggravated circumstances in this case pursuant to 42 Pa.C.S. § 6302(3)(ii).
However, since no evidence was presented to indicate the age of the victim,
the juvenile court did not make any findings regarding aggravated
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circumstances. See N.T., 6/30/14, at 60 (“The court will take judicial notice
[of the offenses] for whatever it’s worth”). At the close of the hearing, the
juvenile court adjudicated F.W. dependent as the term is defined in the
Juvenile Act, 42 Pa.C.S.§ 6302(1), relating to children who lack proper care
and control.
The goal of the initial permanent placement plan was “return to parent
or guardian.” Order of Adjudication and Disposition, 3/30/14, at 1.
However, since questions existed concerning whether Father lived with
Paternal Aunt seven days per week, the juvenile court continued F.W.’s
placement in foster care and directed DHS to continue to investigate
potential kinship placement resources. The court granted Father supervised
visitation with his son twice per week and referred Father to the Clinical
Evaluation Unit for an immediate drug screen, a dual diagnosis assessment,
and monitoring. Additionally, the juvenile court directed DHS to refer Father
to a domestic violence program, parenting services, and housing assistance.
Father filed a timely notice of appeal and complied with Pa.R.A.P.
1925(a)(2)(i) by concomitantly filing a concise statement of errors
complained of on appeal. Father presents one issue for review.
Did the Court err in adjudicating the child dependent and
removing the child from the Father's care where the Department
of Human Services failed to prove by clear and convincing
evidence that the child was a dependent child under 42 Pa.C.S.A
§6302, and failed to prove by clear and convincing evidence that
the Department made reasonable efforts to prevent the need for
placement of the child?
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Father’s brief at 3.2
The following principles are pertinent. In In re A.B., 63 A.3d 345,
349 (Pa.Super. 2013) (quoting In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)),
we explained,
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 court's inferences or
conclusions of law. Accordingly, we review for an abuse of
discretion.
In order to adjudicate F.W. dependent, DHS was required to prove by
clear and convincing evidence that F.W. “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.” 42
Pa.C.S. § 6302. We have defined clear and convincing evidence 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 A.B., supra at 349 (quoting In re C.R.S.,
696 A.2d 840, 843 (Pa.Super. 1997)).
2
The DHS brief was due on January 5, 2015. As of the date of this writing,
the agency failed to file a responsive brief.
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The first aspect of Father’s argument challenges the juvenile court’s
finding that F.W. was a dependent child. Father asserts that, under the
totality of the circumstances, the adjudication of dependency was not
warranted. As the certified record supports the court’s determination, we
disagree.
In sum, the juvenile court took a prospective view of the events and
circumstances that arose during F.W.’s brief time in Father’s custody and
deduced that Father is unable to provide F.W. with the proper parental care
necessary to maintain the child’s physical, mental, and emotional health.
The juvenile court stressed that Father’s living arrangement is uncertain and
his employment is unstable. Additionally, the court highlighted that Father
declined all responsibility for F.W.’s medical care prior to April 2014, and in
the short time that Father had custody of his then-two-year-old-son, he
failed to update his medical and dental care, ensure that his immunizations
were current, or utilize the child’s medical assistance benefits.
Father testified that he attempted to take F.W. to the doctor but was
rebuffed because he lacked insurance. While Father’s brief states that he
was in the process of switching F.W.’s coverage when DHS interceded, the
record belies this contention. Indeed, as the trial court points out, rather
than addressing the administrative impediment to F.W.’s medical coverage,
i.e., the fact that the child was listed under Mother’s medical assistance,
Father simply declined to return the child to his doctor or utilize a free health
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clinic. Father’s testimony during the hearing was replete with purported
clarifications, explanations, and justifications regarding his criminal record,
employment status, living arrangement, and parental care. However, the
juvenile court repeatedly made credibility determinations against Father and
in favor of DHS’s witness, Ms. Shields.
The court explained,
Father assumed Child's care on April 2014, when mother
was arrested (N.T. 6/30/14, pgs. 39, 41, 43, 51). Child remained
with Father until June 23rd, whereby Child was removed by
order of court. Throughout the period of time Child was with
Father, he did not follow up to ensure the Child had a medical
exam and obtained his immunizations (N.T. 6/30/14, pgs. 39,
48-49, 52). Despite the fact that Father was the primary
caregiver for the Child, Father expressly evaded his parental
obligation stating that Child's health was mother's responsibility
(N.T. 6/30/14, pgs. 48-49, 52). The record also reflects certain
concerns with Father's housing. Father testified that he currently
lives with his sister seven days a week at 1518 Myrtlewood
Street, Philadelphia, PA (N.T. 6/30/14, pgs. 35-36, 49-52).
However, his sister stated to DHS that Father lives with her only
three days a week, contradicting Father's testimony (N.T.
6/30/14, pgs. 38, 40). His residence the other four days is
unknown (N.T. 6/30/14, pg. 38). Reaching the Child to provide
services would be difficult as well as unsafe without knowing
Father's whereabouts (N.T. 6/30/14, pg. 38). In adjudicating
Child dependent, the trial court also considered Father's
economic instability. Father testified that he works odds jobs,
such as painting and construction (N.T. 6/30/14, pg. 36).
Initially, Father specified he worked forty hours during the last
thirty days; however, in further testimony, Father stated that in
a period of thirty days he only worked thirty hours (N.T.
6/30/14, pgs. 56-58). Father's ability to properly support his
Child is highly concerning since now he has become the potential
primary caregiver for the Child. Up until mother's incarceration
in April 2014, mother was the primary caregiver.
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Additionally, the court considered Father's criminal history.
He was found guilty of possession of marijuana in 2011 (N.T.
6/30/14, pgs. 48, 53-54). Father alluded that he was holding the
marijuana for a friend, but has admitted usage in the past (N.T.
6/30/14, pgs. 53-55). In November 2013, Father was convicted
for harassing mother (N.T. 6/30/14, pgs. 47-48). Furthermore,
Father has an indecent assault conviction from 1992 (N.T.
6/30/14, pgs. 32-35). Additionally, if you take Father's
testimony as being truthful as to where he lives, Father has
made a judgment to live with a paternal aunt with a long
criminal history (N.T. 6/30/14, pg. 36). Exposing the Child to an
environment where adults have extensive criminal records is not
proper care geared to the particularized needs of the Child[.]
Taking all the testimony of this case into consideration,
including the short period of time Father was the primary
caretaker for the Child, the trial court decided there is clear and
convincing evidence that Father is unable to provide proper
parental care for the physical, mental and emotional health of
his two-year old Child without risking his health, safety and
welfare. DHS witness was found to be credible. Father was found
not to be credible. The trial court ascertained not only what sort
of parental care the Child received in the past, but also what sort
of parental care the Child will receive if custody is given to the
Father. In [I]interest of K.B., 276 Pa.Super, 380,419 A.2d 508(1980).
Trial Court Opinion, 10/21/14, at 3-4.
Father’s substantive argument assails the juvenile court for failing to
consider evidence and testimony that was advantageous to his position. For
instance, Father points to his testimony that he, in fact, lived with Paternal
Aunt fulltime since he took custody of F.W. during April of 2014, his
justification for failing to confirm that F.W.’s immunizations were up to date,
and his testimony that he does not use marijuana despite his guilty plea to
possession of marijuana during 2011. As it relates to that offense, Father
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stated that he was holding the drug for a “friend” and had not smoked
marijuana in five to ten years. N.T., 6/30/14, at 53-54. Although Father
noted his willingness to submit a urine sample immediately after the
adjudicatory hearing, he hedged, “I do not know if I will be able to
[urinate.]” See N.T, 6/30/14, at 63. The certified record does not indicate
whether Father was able to produce a urine sample or reveal the results of
any ensuing drug screens.
The cruces of Father’s arguments essentially request that we ignore
our standard of review, reweigh the evidence, and make a determination in
his favor. We must decline. See In Re A.B, supra at 349 (“The 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”). Moreover, the certified record sustains the trial
court’s determination.
During the adjudicatory hearing, Ms. Shields testified that DHS was
primarily concerned with Father’s unusual living arrangement and
highlighted the agency’s unease about returning F.W. to Father under the
current circumstances. N.T, 6/30/14, at 38. As noted, Father provided DHS
two different Philadelphia addresses. Id. at 31. Approximately one week
prior to the hearing, Paternal Aunt informed Ms. Shields that Father resided
at her home on Myrtlewood Street only three days per week and that she did
not know where Father lived the remainder of the week. Id. at 38, 40. That
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information conflicted with Father’s April 2014 statement to Ms. Shields that
he had moved from the Perry Street residence. Id. at 44. Furthermore, as
of the date of the hearing, Father still had not documented his actual living
arrangement. Id. at 38. Thus, Ms. Shields’s concerns persisited.
In addition, Ms. Shields observed that F.W.’s immunizations were not
current and that he had not been examined by a doctor in one year. Id. at
39, 40-41. Moreover, Ms. Shields outlined Father’s and Paternal Aunt’s
criminal records. Specifically, she testified, “I performed a clearance on the
paternal aunt. She had no prohibited offenses. But she did have a long
criminal history. But it was not considered a prohibited offense.” Id. at 32.
As it relates to Father, Ms. Shields stated, “Father had a prohibited
offense.[3] A conviction. There were several of them actually.” Id. Hence,
the record supports the court’s assessment of the respective criminal
records.
Father also asserts that his financial uncertainty was not a proper
ground to adjudicate F.W. dependent. We agree with this component of
Father’s argument. Presuming that a child receives basic subsistence, a
parent’s economic status alone is an improper basis for an adjudication of
dependency. See In re R.R., 686 A.2d 1316, 1318 n.1 (Pa.Super. 1996).
Instantly, the trial court referred to Father’s “economic instability” as “highly
3
As noted in the body of this writing, the juvenile court did not treat
Father’s 1992 indecent assault conviction as a prohibited offense.
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concerning” in light of the fact that Father had never previously acted as
F.W.’s primary caregiver. See Trial Court Opinion, 10/21/14, at 4. Thus,
absent some evidence that F.W. lacked basic subsistence, the juvenile court
erred in relying upon financial considerations as a reason to adjudicate F.W.
dependent.4 Accordingly, we reject that aspect of the court’s rationale as
contrary to law. Instantly, however, in addition to referencing Father’s
economic status, the juvenile court also invoked Father’s poor decision
making, uncertain living arrangement, and his and Paternal Aunt’s criminal
histories. As the certified record sustains the remaining, valid grounds for
the adjudication, we will not disturb the order adjudicating F.W. dependent.
On appeal, Father challenges as hearsay Ms. Shields’s testimony
regarding Paternal Aunt’s statement that Father lived with her only three
days a week. However, since Father failed to level a hearsay objection when
the evidence was proffered, the issue regarding the supposed hearsay
testimony is waived. Moreover, to the extent that Father challenged the
reliability of Ms. Shields’s iteration during his summation of evidence, the
trial court made an express credibility determination in the witness’s favor.
Given that the record sustains the court’s credibility determination, no relief
is due.
4
While Father’s bleak financial outlook is an improper ground to adjudicate
F.W. dependent, Father’s sporadic employment remains a relevant and
accurate reflection of his general instability. Thus, to the extent that the
court considered Father’s employment history for this purpose, the reference
is benign.
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In the second component of his argument, Father argues that DHS
failed to make reasonable efforts to prevent F.W.’s placement. Additionally,
Father disagrees with the juvenile court’s conclusion that his and Paternal
Aunt’s convictions affected his ability to parent F.W. because the convictions
did not preclude their involvement per se. Again, his arguments are
unpersuasive. Our review of this issue is guided by the following principles:
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 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., supra at 349-350.
Father’s argument necessarily overlooks Ms. Shields’s testimony
regarding the steps the agency took to determine whether it would be
feasible for F.W to reside with Father at Paternal Aunt’s home. As the trial
court outlined in its Rule 1925(a) opinion, Ms. Shields testified that DHS
investigated the feasibility of Paternal Aunt, who was the only relative that
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Father presented, and performed an assessment of her home. N.T.,
6/30/14, at 31-32, 37, 45. The agency found that Paternal Aunt’s home was
appropriate for F.W. but determined that it could not return F.W. to Father
because the aunt had informed the agency that Father did not stay at the
residence fulltime. Id. at 38, 40. Moreover, the location, and consequently
the feasibility, of Father’s alternate accommodations were unknown as of the
date of the dependency proceedings. Id. at 38. Thus, the trial court
concluded,
Based on the information provided by Father, DHS made
reasonable efforts to prevent Child’s placement, and when the
Child was placed[,] it was in the less restrictive environment
available. The trial court notes that although Father only
indicated paternal aunt as a possible resource to DHS, Father
was well aware that there were other relatives in Philadelphia
that he chose not to disclose to DHS based on his testimony at
the adjudicatory hearing (N.T. 6/30/14, pgs. 64-65).
Trial Court Opinion, 10/21/14, at 6.
Father’s arguments simply rehash his challenges to the weight of the
evidence supporting the juvenile court’s determination regarding the
uncertainty of Father’s living arrangements and the effect of his and Paternal
Aunt’s criminal records. However, for the reasons we expressed supra, we
are not vested with the authority to reweigh the evidence in order to make a
determination in Father’s favor. See In Re A.B, supra at 350 (“It is not for
this Court, but for the trial court as fact finder, to determine whether a
child's removal from her family was clearly necessary.”).
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All told, the facts regarding Father’s care of F.W. present a close case.
While we find that the certified record sustains the juvenile court’s factual
conclusions and credibility determinations, it is not self-evident that a
different fact finder considering the identical factual scenario would reach the
same conclusions as the juvenile court herein. However, our responsibility is
not to review the facts anew. The juvenile court was in a superior position
to assess the witnesses’ credibility and evaluate the conflicting evidence.
Ultimately, the court determined that Father did not dwell at Paternal
Aunt’s home more than three days per week and that his and Paternal
Aunt’s criminal records were sufficiently distressing to raise a safety concern
even though neither record warranted automatic disqualification. That
situation, in combination with the safety concerns stemming from Father’s
commitment to F.W.’s welfare and his potential drug use made F.W.’s
placement in foster care necessary to enforce the child’s wellbeing.
Finally, we observe that neither the technical effects of the juvenile
court’s adjudication of dependency and placement of F.W. in foster care nor
their practical ramifications are tantamount to terminating Father’s parental
rights. Unlike an involuntary termination of parental rights, orders entered
under the Juvenile Act are subject to periodic review and modification. See
In Interest of R.T., 592 A.2d 55, 61 (Pa.Super. 1991) (quotation omitted)
(“[I]n the interest of safeguarding the permanent welfare of the child,
decrees concerning children are temporary and subject to modification to
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meet changing conditions.”). Here, the juvenile court ordered DHS to
provide Father biweekly visitation with F.W. and to refer him to services and
programs that are designed to address his parenting deficiencies and lead to
reunification. The court’s temporary measures permit DHS to maintain
oversight of Father’s parenting and to ensure F.W.’s best interest until
Father is able to document where he lives, address his parenting
deficiencies, and demonstrate that his and Paternal Aunt’s criminal histories
will not place his son in danger. After Father resolves these issues, the
juvenile court can place F.W. with Father and/or Paternal Aunt with
confidence, and DHS can continue to provide the family services until the
court determines that F.W. is no longer a dependent child.
For all of the foregoing reasons, we affirm the juvenile court’s
adjudication and disposition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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