In the Int. of: N.S., Appeal of: N.A.-H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: N.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.A.-H., FATHER :
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: No. 2741 EDA 2022
Appeal from the Order Entered September 26, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000237-2022,
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 9, 2023
N.A.-H. (“Father”) appeals from the order adjudicating as dependent his
child, N.S. (“Child”). We affirm.
In January 2022, the Philadelphia Department of Human Services
(“DHS”) received a General Protective Services (“GPS”) report alleging safety
concerns for three-week old Child due to Child’s mother’s (“Mother”)1 mental
health issues. N.T., 9/26/22, at 10. DHS determined the GPS report was valid
and placed Child with her maternal grandmother (“Maternal Grandmother”)
pursuant to a safety plan. Id. at 10-11, 31-32. At that time, Mother was
hospitalized for mental health treatment and DHS did not have contact
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1 Mother stipulated to the adjudication of Child and is not a party to this
appeal. See N.T., 9/26/22, at 134.
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information for Father. Id. at 32. DHS subsequently filed a dependency
petition on behalf of Child, on March 10, 2022.
An adjudicatory hearing was initially scheduled for March 25, 2022, but
was continued several times. The hearing was eventually held on September
26, 2022. At that hearing, the court expressly incorporated by reference all
the testimony taken over the prior seven court dates. Id. at 42-44, 162-164.
Those prior hearings were on March 25, May 6, June 3, June 6, July 21, August
19, and September 14, 2022.
At the initial hearing on March 25, 2022, the court continued the case
because the court appointed Father’s counsel at the hearing, and DHS had not
served Mother with notice of the hearing. N.T., 3/25/22, at 10. Neither Mother
nor Father appeared at the hearing.
At the next hearing, on May 6, 2022, DHS requested a continuance
because Mother had not been served. N.T., 5/6/22, at 6. Father was
hospitalized at a mental health facility in Virginia. Id. at 12, 17. Prior to his
hospitalization, Father and Mother had been living together in New Jersey. Id.
at 6, 12.
Father appeared at the subsequent hearing, on June 3, 2022, and stated
that he did not want an attorney. N.T., 6/3/22, at 7. The court vacated the
order appointing Father’s counsel and appointed him new counsel. Id. at p.
9-10. Father became irate and stated that the court wanted “a fuckin’
electrocution” and that the case involved “a rape and baby death.” Id. at 7-
8. The court ordered the sheriff to remove Father from the courtroom due to
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his disruptive behavior and outburst. Id. at 8, 10. It also ordered DHS to
obtain an Order of Protective Custody (“OPC”) for Child so DHS would have
temporary legal custody of Child, and Maternal Grandmother would have
temporary physical custody. Id. at 11-12, 15.
At the next hearing, on June 6, 2022, the court was informed that DHS
had obtained an OPC. N.T., 6/6/22, at 4. The Community Umbrella Agency
(“CUA”) caseworker, Eileen Groark, testified that Father and Mother had
mental health issues and that although Mother had a Protection from Abuse
(“PFA”) order against Father, Father was not adhering to it. Id. at 12. Groark
stated that Maternal Grandmother was very fearful of Father, and he told her
he was going to kill the employees at Maternal Grandmother’s daycare. Id. at
11-12. The court issued a “stay away” order requiring Father to keep away
from Maternal Grandmother. Id. at 13, 20.
Mother and Father did not appear at the next hearing, on July 21, 2022.
Groark testified that Father was awaiting a bed at a mental health inpatient
hospital in York, Pennsylvania. N.T., 7/21/22, at 16. The court denied Mother
and Father’s request to participate in the hearing by phone for two reasons.
Id. at 5. First, the court was not equipped to accommodate both Mother and
Father by phone. Id. Second, the court explained that it would be unable to
manage Father if he participated by phone due to his outburst and removal
from the courtroom at the June 3 hearing. Id. at 5-6. The court granted
Father’s counsel’s request for a continuance due to Father’s hospitalization.
Id. at 5; N.T., 8/19/22, at 9. The court also granted Father’s motion for
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discovery and ordered DHS to provide counsel with all documents and
witnesses it intended to produce at the adjudicatory hearing in accordance
with the Child Protective Services Law. N.T., 7/21/22, at 7-8.
At the following hearing approximately one month later, on August 19,
2022, Father was present and Mother participated by phone. However, the
case was continued because DHS had not turned over the court-ordered
discovery to Father. N.T., 8/19/22, at 12, 15. The court ordered DHS to
provide the discovery within seven business days. Id. at 15. Father’s counsel
expressed Father’s desire to have custody of Child and noted that the
dependency petition did not specifically allege that Father posed a danger to
Child. Id. at 27. The court stated that it was not going to change Child’s
placement until it heard all the facts and evidence. Id. at 28. The court noted
that no visitation schedule for Father had been established due to Father being
in and out of mental health hospitals and out-of-state at times. Id. at 28-31.
The court ordered that Father have supervised visits at DHS. Id. at 32, 34.
At the hearing the following month, on September 14, 2022, DHS
requested a continuance because the DHS caseworker was not available. N.T.,
9/14/22, at 9. DHS had also turned over to counsel 400 pages of discovery
the night before the hearing. Id. The Child Advocate joined DHS’s request for
a continuance because she had not had time to review all the discovery. Id.
at 11. Father’s counsel objected to the request for a continuance and
requested that Father have custody of Child. Id. The court granted the
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continuance, over Father’s objection. Id. at 20. The court then heard
permanency review testimony from Groark.
Groark testified she tried to reach Father to set up a visitation schedule,
but Father did not respond. Id. at 13-14. The court attempted to ask Father
directly about his availability for visitation, but his response was illogical. He
stated this was a “criminal case” and, “[Y]ou can remove my name from the
birth certificate because it was a fetal abduction and spousal [sic]. It is a rape
and freaking kidnapping. I don’t need to talk to DHS.” Id. at 14-15. The court
noted that Father’s lack of cooperation with DHS would preclude establishing
a visitation schedule and stated to Father, “[W]hat you have articulated on
the record is very concerning and would give me concern of returning this
child to your custody at this point.” Id. at 16, 17. Father responded that
keeping him away from Child was “treason” and he again requested that he
be removed from the birth certificate, stating, “I don’t want the child.” Id. at
30-31.
At the adjudicatory hearing on September 26, 2022, as noted above,
the court incorporated by reference the testimony from the previous seven
hearings. N.T., 9/26/22, at 42-44, 162-164. Father and Mother were both
present. DHS identified the safety threats in this case as mental health
concerns for Father and Mother, as well as concerns about domestic violence.
Id. at 86. Mother had two active PFA orders against Father in New Jersey,
which Father conceded. Id. at 130-31. Mother testified that she was afraid,
anxious, and in fear of her life because of Father and requested a stay away
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order for Father, which the court granted. Id. at 128-131. Both the DHS
investigator, Racquel Braham, and the CUA worker, Groark, testified that they
had tried to contact Father by phone many times but he was always upset,
hostile, and yelling. Id. at 18-19, 22-23, 23-28, 71-74. Groark opined that
Child would not be safe in Father’s care because of Father’s uncooperativeness
and hostility. Id. at 94-95. She stated that Father’s case objectives were to
obtain mental health treatment, attend parenting classes, maintain
communication with DHS, and visit with Child. Id. at 95-97.
Father testified that he wanted “a hundred percent” custody of Child and
visitation with Child but did not want to go through CUA. Id. at 137. He
claimed that the police were stalking him, he was “trafficked,” his mental
health hospitalizations were involuntary, and his email had been hacked by “a
criminal court, some random person, or another country.” Id. at 139-40, 151.
He said that he did not currently have a permanent residence and had been
living in hotels since October 2021, approximately one year before the
adjudicatory hearing, when he was evicted from his home. Id. at 161, 180-
81. Father stated, “I am facing homelessness and living in a shelter.” Id. at
182.
The court adjudicated Child dependent based upon Father’s and
Mother’s present inability to care for Child due to Father’s mental health issues
and lack of housing and Mother’s mental health issues. Id. at 164-65. The
court found the testimony of both the DHS and CUA caseworkers to be credible
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and that DHS had made reasonable efforts to prevent placement of Child. Id.
at 164, 165, 171. This appeal followed.
Father raises the following 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 [Child] was a dependent child[?]
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 [Child] from her parents’ 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 the
Philadelphia Department of Human Services made reasonable
efforts to prevent or eliminate the need for the removal of
[Child] from her parents’ care[?]
4. Whether the trial court erred as a matter of law when it ordered
that [Child] remain in the temporary custody of the
Philadelphia Department of Human Services in violation of 42
Pa.C.S.A. Section 6335 where [Child] was held in temporary
care for longer than ten days and where the requisite findings
of Section 6335 were not made[?]
Father’s Br. at 3.
In his first issue, Father argues that the trial court erred by finding that
clear and convincing evidence supported the conclusion that Child lacked
parental care and control. Id. at 15. He asserts that DHS never assessed
Father to determine if he could care for Child, and he was left out of the
process from the beginning of the case. Id. at 17. He points out that the GPS
report did not reference Father, and Father was not invited to the initial safety
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plan meeting or offered a visitation plan. Id. Father also asserts that DHS
never assessed his home. Id. Father concedes that, at various times, he
received mental health treatment but argues that “receiving mental health
treatment is not a bar to caring for one’s child.” Id. at 18.
We review orders entered in dependency cases for an abuse of
discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the
findings of fact and credibility determinations if they are supported by the
record, but we are not required to accept the trial court’s inferences or
conclusions of law. Id.A “dependent child” includes a child 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.” 42
Pa.C.S.A. § 6302 (“Dependent child”). Thus, a child will only be declared
dependent if the child “is presently without proper parental care and when
such care is not immediately available.” In re A.B., 63 A.3d 345, 349
(Pa.Super. 2013) (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.’” Id.(citation omitted).
The petitioner must demonstrate by clear and convincing evidence that
a child meets the statutory definition of a dependent child. In re G.T., 845
A.2d 870, 872 (Pa.Super. 2004). Clear and convincing evidence is evidence
that is “so clear, direct, weighty, and convincing as to enable the trier of facts
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to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.” In re A.B., 63 A.3d at 349 (citation omitted).
The record supports the court’s determination that Father was presently
unable to parent Child due to his mental health issues and lack of housing and
that Child was therefore dependent. See 42 Pa.C.S.A. § 6302; In re A.B., 63
A.3d at 349. Although Father argues that DHS did not assess his home, he
readily admitted at the adjudicatory hearing that he did not have a permanent
residence and was “facing homelessness.” See N.T., 9/26/22, at 161, 182.
Furthermore, Father was hospitalized on multiple occasions for mental health
treatment and was uncooperative and hostile with DHS and CUA. Father also
had a history of domestic violence against Mother, as evidenced by the two
active PFA orders against him in New Jersey. Both Mother and Maternal
Grandmother stated that they were very fearful of Father, and the trial court
issued orders directing Father to stay away from them.
Further, the court was well within its purview when crediting the
testimony of the DHS and CUA caseworkers. The court also witnessed
firsthand Father’s in-court incoherent and angry outbursts. Accordingly, we
discern no abuse of discretion by the trial court in determining that DHS
presented clear and convincing evidence that Child was dependent.
Father’s second issue challenges the trial court’s determination that DHS
met its burden to prove that it was clearly necessary to remove Child from her
parents’ care. Father’s Br. at 18. He argues that the court failed to consider
alternative dispositions other than the removal of Child from her home. Id. at
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19. Father contends that there was no testimony that he was a safety threat
to Child or any “testimony regarding his home.” Id. According to Father, the
“trial court could have ordered a disposition that the Child remain with Father,
under the supervision of the agency.” Id.After a child has been adjudicated dependent, “a court may not separate
that child from his or her parent unless it finds that the separation is clearly
necessary.” Interest of A.C., 237 A.3d 553, 563 (Pa.Super. 2020) (citation
omitted). “Such necessity is implicated where the welfare of the child demands
that he or she be taken from his or her parents’ custody.” Id. (citation
omitted).
Here, the record demonstrates that Child’s removal from her parents’
custody was clearly necessary. Child was removed from Mother’s care as
Mother conceded that she was not presently able to care for Child. Father’s
argument that Child should have “remain[ed]” with him is misguided since
Child was never in Father’s care. Moreover, contrary to Father’s contention
that there was no testimony regarding his housing, Father himself testified
that he presently had no permanent home. Given the young age of Child, the
trial court had ample evidence to conclude that Child’s removal from her
parents’ care was clearly necessary.
Father next argues that the court erred when it determined that DHS
made reasonable efforts to prevent Child’s removal from her parents’ care.
Father’s Br. at 20. He contends that “the trial court here provided no analysis
of whether DHS made any efforts to prevent the placement of the Child.” Id.- 10 -
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Father again maintains that DHS did not invite Father to the safety plan
meeting, provide him with a visitation plan, or assess his home. Id. According
to Father, “the fact that [he] was not invited to or involved with the safety
plan [that] was considered to keep the family together, especially after the
GPS report only mentioned issues with Mother, belies the finding that DHS
made reasonable efforts.” Id. at 23.
Prior to entering an order of disposition that removes a dependent child
from his or her home, “the court shall enter a finding concerning 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 [or her] home, or if
preventive services were not offered due to the necessity for an emergency
placement, whether such lack of services was reasonable under the
circumstances[.]” Interest of K.C., 156 A.3d 1179, 1185 (Pa.Super. 2017)
(citation and internal quotation marks omitted).
Here, the record contradicts Father’s assertion that the trial court failed
to address whether DHS made reasonable efforts to prevent Child’s
placement. The court specifically made a finding of reasonable efforts at the
adjudicatory hearing and in the adjudication order. At the hearing, the court
stated, “[The c]ourt is going to find that DHS did make reasonable efforts to
prevent placement. Initially, DHS sought to implement a safety plan in
Maternal Grandmother’s home with Mother and Maternal Grandmother, and
that was not successful.” N.T., 9/26/22, at 171. The order of adjudication
similarly found, “[T]he [c]ourt hereby finds that to allow this child to remain
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in the home would be contrary to the child’s welfare, and that the Philadelphia
Department of Services made Reasonable Efforts to prevent or eliminate the
need for removal of this child from the home.” Order, 9/26/22, at 1-2.
There was sufficient evidence to support the finding that DHS made
reasonable efforts. Father’s argument about the failure to include him in the
preparation of the safety plan is misplaced. At the time of the safety plan
meeting, DHS did not have contact information for Father. As for his
complaints that DHS did not provide him with a visitation plan or assess his
home, the caseworkers testified that they repeatedly attempted to contact
Father, and he was always angry, yelling, and uncooperative. Father’s
argument is without merit.
Lastly, Father contends that the court violated the Juvenile Act when it
ordered that Child remain in the temporary custody of DHS, as Child was held
in temporary care for longer than 10 days. Father’s Br. at 23. Citing Section
6335, Father argues that if a child is placed in protective custody pending a
dependency adjudication, the trial court must schedule the dependency
hearing within 10 days of the filing of the petition. Id. at 24 (citing 42
Pa.C.S.A. § 6335(a)). He contends that Child was taken into temporary care
on June 3, 2022 and was not adjudicated dependent until September 26,
2022, and the court did not make the requisite findings for keeping a child in
temporary care for more than ten days. Id. at 24-25.
Father’s final argument is waived. “To preserve a claim of error for
appellate review, a party must make a specific objection to the alleged error
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before the trial court in a timely fashion and at the appropriate stage of the
proceedings; failure to raise such objection results in waiver of the underlying
issue on appeal.” PCS Chadaga v. Torres, 252 A.3d 1154, 1157 (Pa.Super.
2021).
Here, Father did not raise this claim at any point in the trial court. He
only made one objection to the various requests for continuances in the case
and he did not cite the 10-day requirement under Section 6335(a) as the basis
for his objection. See N.T., 9/14/22, at 11. Accordingly, Father’s claim is
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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