In the Int. of: B.F., Appeal of: A.R. ( 2020 )

J-S74016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.R., MOTHER :
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:
:
:
: No. 2908 EDA 2019
Appeal from the Order Entered September 20, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001427-2019
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 14, 2020
A.R. (Mother) appeals from the order adjudicating her three-year-old
son, B.F. (Child)1, dependent, and placing him in kinship care with his paternal
grandparents.2,3 Upon review, we affirm.
The record reveals that on September 3, 2019, the Philadelphia
Department of Human Services (DHS) received a report alleging Mother and
Father blew marijuana smoke into Child’s mouth, and gave Child Benadryl to
sleep. Upon investigation, DHS learned that Mother and Father lived together
and had a history of illegal drug use and mental health issues. On September
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* Former Justice specially assigned to the Superior Court.
1 Child was born in June of 2016.
2 G.F (Father) did not file an appeal, and he is not a party in this appeal.
3 Child’s court-appointed counsel has filed a brief in support of Child’s
adjudication and placement in kinship care.
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5, 2019, the juvenile court placed Child in the emergency protective custody
of DHS. DHS then placed Child in the home of his paternal aunt.
On September 6, 2019, the court held a shelter care hearing. During
the hearing, DHS presented the testimony of Portia Henderson, the DHS
investigative social worker, and G.F., Jr., Child’s paternal grandfather.
Thereafter, the court lifted the September 5, 2019 order of protective custody
and ordered that Child be placed in shelter care.
DHS filed a dependency petition on September 11, 2019. The hearing
occurred on September 20, 2019, during which all counsel stipulated that Ms.
Henderson would testify consistent with the statement of facts in the
dependency petition, although the parties did not stipulate to the veracity of
the facts. N.T., 9/20/19, at 6; see also Dependency Petition, 9/11/19, at ¶
5(a)–(o). DHS then presented the testimony of Ms. Henderson as well as that
of S.F., Child’s paternal grandmother. Further, DHS introduced — and the
court admitted into evidence — reports regarding drug screens performed on
Mother and Father at the Clinical Evaluation Unit (CEU) on September 6, 2019,
which were positive for amphetamines. Id. at 6-7. Finally, the court
incorporated all non-hearsay testimony from the shelter care hearing. Id. at
7.
By order dated and entered on September 20, 2019, the court
adjudicated Child dependent and found that allowing him to remain in Mother
and Father’s home would be contrary to his best interests. The court directed
that Child be placed in kinship care with his paternal grandparents.
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Mother timely filed a notice of appeal and a concise statement of errors
complained of an appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(a)(2)(i) and (b). The court filed its Rule 1925(a) opinion on November
13, 2019.
Mother presents the following issues for our review:
1. Did the [juvenile] court err by adjudicating Child
dependent?
2. Did the [juvenile] court abuse its discretion and/or
commit legal error in placing Child in kinship care given that [DHS]
failed to show reasonable efforts to prevent the placement of Child
in kinship care?
3. Did the court abuse its discretion and/or commit legal
error in placing Child in kinship care given that [DHS] failed to
prove that such separation was clearly necessary?
Mother’s Brief at 3.
Our standard of review for dependency cases is 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 re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).
A dependency hearing is a two-stage process governed by the Juvenile
Act (Act), 42 Pa.C.S. §§ 6301-6365. The first stage requires the trial court to
hear evidence on the dependency petition and to determine whether the child
is dependent. See 42 Pa.C.S. § 6341(a). Section 6302 defines a “dependent
child,” in part, as one who:
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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.A. § 6302. This Court has held that a child will only be declared
dependent when he is presently without proper parental care or control, and
when such care and control are not immediately available. In the Interest
of R.T., 592 A.2d 55, 57 (Pa. Super. 1991).
The Act provides, “If the court finds from clear and convincing evidence
that the child is dependent,” then the second stage of the dependency process
requires that the court make an appropriate disposition based on an inquiry
into the best interests of the child pursuant to Section 6351(a) and (b). 42
Pa.C.S. § 6341(c); see also In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007).
This Court has defined “clear and convincing” evidence as testimony that is
“so direct and unambiguous as to enable the trier of fact to come to a sure
determination, without conjecture, of the truth of the exact facts at issue.” In
the Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997).
Regarding when a child should be removed from parental custody, this
Court has 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 [C]ourt had held that clear necessity for
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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 Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980) (citations
omitted). In addition, we have stated, “it is not for this [C]ourt, but for the
trial court as factfinder, to determine whether [a child’s] removal from her
family was clearly necessary.” In the Interest of S.S., 651 A.2d 174, 177
(Pa. Super. 1994).
In her first issue, Mother argues that the evidence was insufficient for
the juvenile court to adjudicate Child dependent. Specifically, Mother argues
that the court relied on inadmissible hearsay from Ms. Henderson, the DHS
social worker, who testified during the shelter care hearing that she learned
from family members and another unidentified source that “Mother had
overdosed in the past and there w[ere] some concerns of [phencyclidine] use
and [methamphetamine].” Mother’s Brief at 9 (citing N.T., 9/6/19, at 9, 12).
In addition, Mother argues that Ms. Henderson’s testimony regarding the
allegations in the report submitted to DHS on September 3, 2019, was
inadmissible hearsay. We disagree.
Our review reveals that Mother failed to object to the Ms. Henderson’s
testimony during the shelter care hearing. Therefore, Mother’s first issue is
waived. See In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (stating that
“to preserve an issue for appellate review, a party must make a timely and
specific objection at the appropriate stage of the proceedings before the trial
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court. Failure to timely object to a basic and fundamental error will result in
waiver of that issue.”) (citation omitted).
Even if Mother’s first issue was not waived, we would conclude it is
meritless. It is well-settled 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.” Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014)
(citation omitted).
The Pennsylvania Rules of Evidence define hearsay as a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c).
This Court has explained:
As a general rule, hearsay is inadmissible, because such evidence
lacks guarantees of trustworthiness fundamental to our system of
jurisprudence. The rule against admitting hearsay evidence stems
from its presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement. Notably, it
is elemental that, [a]n out of court statement which is not offered
for its truth, but to explain the witness’ course of conduct is not
hearsay.
In re K.A.T., 69 A.3d 691, 702 (Pa. Super. 2013).
With respect to Ms. Henderson’s testimony about allegations in the
report to DHS, we conclude that it was not offered for the truth of the matter
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asserted, but to explain how Child became known to DHS. Therefore, it did
not constitute hearsay.
In addition, we reject Mother’s assertion that Ms. Henderson’s testimony
was hearsay when Ms. Henderson testified that Mother “overdosed in the past
and there w[ere] some concerns of [phencyclidine] use and
[methamphetamine].” Mother’s Brief at 9 (citing N.T., 9/6/19, at 9, 12). Ms.
Henderson testified on cross-examination by Mother’s counsel:
Q. You said that . . . in your gathering of information, you were
told that Mom did [overdose] in the past. That she used
methamphetamines. Is that correct?
A. The information I obtained was that Mom [overdosed] off of
. . . heroin.
Q. And, did you obtain that information from a family member?
A. I did not.
Q. Did you ask Mom about it?
A. Yes, I did.
Q. What did she say?
A. She admitted to it.
N.T., 9/6/19, at 22. On redirect, Ms. Henderson clarified that Mother said “it
was a while ago” when she used heroin. Id. at 24. As such, Ms. Henderson’s
testimony about Mother overdosing in the past does not constitute
inadmissible hearsay. See Pa.R.E. 803(a)(25) (providing that an opposing
party’s statement is an exception to the rule against hearsay).
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To the extent Ms. Henderson learned from out-of-court declarants about
Mother using phencyclidine and methamphetamines, there is no indication in
the record that the juvenile court considered this testimony as substantive
evidence. However, even if the court did consider this evidence, we would
conclude that the admission did not prejudice Mother. The court received
other non-hearsay evidence sufficient to establish Child’s dependency;
namely, Mother’s admitted history of heroin use, and Mother testing positive
for amphetamines on the date of the shelter care hearing. Further, there is
no indication in the record that Mother was medically prescribed
amphetamines. See N.T., 9/6/19, at 6-7. Therefore, the court’s admission
of Ms. Henderson’s testimony does not constitute reversible error.
Further, we discern no abuse of discretion by the court in adjudicating
Child dependent. During the shelter care hearing, Ms. Henderson testified
that when she visited Mother and Father’s home on September 4, 2019, Father
behaved erratically, appeared pale, and was “sweating profusely.” N.T.,
9/6/19, at 10. Ms. Henderson testified that she likewise became concerned
that Mother was under the influence of drugs because Mother became
“irritated, agitated . . . impatient” while at the hospital with Ms. Henderson
during Child’s emergency medical evaluation.4 Id. at 11-12. Although Mother
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4 Ms. Henderson testified that she took Child for an emergency medical
evaluation at St. Christopher’s Hospital due to the allegation that Mother and
Father blew marijuana smoke into his mouth. N.T., 9/6/19, at 8, 19-20.
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did not admit to present use of illegal drugs, she refused to take a drug test
on September 4, 2019. Id. at 24. Moreover, while acknowledging that she
overdosed on heroin in the past, Mother never received any drug treatment.
Dependency Petition, 9/11/19, at ¶ 5(i).
In addition, G.F., Jr., Child’s paternal grandfather, testified that Father
has a history of heroin use. N.T., 9/6/19, at 27-28. Paternal grandfather
testified that Father has “been in and out of jail” and released to drug
rehabilitation centers. Id. at 26-28. Paternal grandfather testified that prior
to Christmas of 2018, he suspected Father was using drugs because Father
“was about 240/250 pounds. . . . [and] about a month, two months later, . .
. he’s a bean pole.” Id. at 27.
Ms. Henderson testified that in addition to Mother and Father needing
drug evaluations, they needed mental health assessments as well. N.T.,
9/20/19, at 11. Specifically, Ms. Henderson testified that Mother stated she
suffers from depression and anxiety. N.T., 9/6/19, at 12. With respect to
Father, Ms. Henderson testified on cross-examination by Father’s counsel
during the dependency hearing:
Q. What are your mental health concerns with regard to Father?
A. Dad stated that he is struggling with some health issues[,]
which causes him to . . . get high.
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Child’s urine sample was negative for drugs. Id. at 20-21; Dependency
Petition, 9/11/19, at ¶ 5(e).
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N.T., 9/20/19, at 15. Ms. Henderson also testified that Father “did express
that some things happened in his childhood that he would like to process.”
Id. Finally, during the dependency hearing, Ms. Henderson testified that
Child, then age three, had speech delays for which Ms. Henderson
recommended early intervention services. Id. at 8.
Based on the foregoing testimony of Ms. Henderson and the paternal
grandfather, as well as the documentary evidence showing that Mother and
Father tested positive for amphetamines on September 6, 2019, we discern
no abuse of discretion by the juvenile court in adjudicating Child dependent.
Indeed, the record evidence clearly and convincingly demonstrates that Child
was without proper parental care and control clearly necessary for his health,
safety, and welfare.
Mother’s second and third issues are related. Mother argues that the
court abused its discretion by not considering whether reasonable efforts were
made to prevent placing Child in kinship care, and that DHS failed to show
that placing Child was clearly necessary for his well-being. Again, we
disagree.
As best we can discern, Mother’s argument involves the following
provision of the Act, in relevant part:
§ 6351 Disposition of dependent child.
...
(b) Required preplacement findings. — Prior to entering any
order of disposition under subsection (a) that would remove a
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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
42 Pa.C.S.A. § 6351(b).
Instantly, the juvenile court found that allowing Child to be returned to
Mother and Father’s home would be contrary to his welfare. Section
6351(b)(3), but not (b)(2), is applicable insofar as Child was initially removed
from Mother and Father by emergency order for protective custody. As such,
preventive services were not offered to Mother and Father when Child was
placed on September 5, 2019. By adjudicating Child and placing him in kinship
care, the court found that the lack of preventive services was reasonable, and
Child’s placement in kinship care was clearly necessary, based on the
testimony of Ms. Henderson and the paternal grandfather, which the court
found credible.
As detailed above, the testimonial evidence revealed that Mother had a
history of heroin abuse and never received treatment. Likewise, Father had a
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history of heroin use and more than one inpatient rehabilitation after release
from prison. Ms. Henderson observed Father’s erratic behavior and his
appearance on September 4, 2019, and Father acknowledged that he gets
“high”; also, both Mother and Father tested positive for amphetamines on
September 6, 2019. In sum, the record supports the juvenile court’s
dependency adjudication.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/20
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