In the Int. of: V.D., a Minor ( 2023 )

J-S27043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: V.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.D., JR., FATHER :
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: No. 578 MDA 2023
Appeal from the Order Entered March 24, 2023
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000093-2023
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: OCTOBER 2, 2023
R.D., Jr. (“Father”), appeals from the order determining that he
perpetrated abuse against his daughter, V.D., born in March 2008, and
adjudicating V.D. dependent.1 We affirm.
The trial court summarized its findings of fact as follows:
On January 17, 2023, [the York County Office of Children,
Youth, and Families (“the Agency”)] received a [child protective
services (“CPS”)] referral regarding concerns of physical abuse by
creating a reasonable likelihood of bodily injury to a child through
act or failure to act with [“Father”], as the alleged perpetrator.
The allegations received were that at approximately 2:30
A.M. on that day, [F]ather got into a physical altercation with a
paternal cousin and during that time brandished a handgun,
racked it, and was waving it around/pointing it at people in the
room, in the presence of [M]other, and [V.D. (hereinafter, “the
January 17th incident”).]
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1 M.D. (“Mother”) did not separately appeal or file a separate brief in support
of this appeal. Mother, however, submitted a letter indicating that she joins
in Father’s brief.
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Mother was not able to immediately call 911 out of fear of
[F]ather’s reaction, so later in the day she called police and
reported the incident[. Mother talked to the responding officer,
Officer Zachary Werner (“Officer Werner”), and gave a written
statement to the police. A]s a result, [F]ather was subsequently
arrested and charged. As a term of his bail, [F]ather was not
permitted any direct or indirect contact with [the] victims or
witnesses or to return to the[ family] residence.
On January 18, 2023, the [Agency caseworker, Ashley
Althoff (“Althoff”)] met with [V.D. and Mother]. Mother informed
her . . . that V.D. had not spoken since she returned to the home
yesterday and [would] only communicate by nodding yes or no.
During the home visit, [M]other indicated that there were other
children in the home at the time of the [January 17th] incident,
but that the only child present [during the argument] was V.D.
and [an] adult sister. Mother indicated that [F]ather currently was
in possession of the weapon, because he had taken it with him
when he left. Mother further reported that she and the minor
child, V.D., were scared to be in the home again. She indicated
that she had a concealed carry permit and that she has a firearm
in the home.
Mother stated that this was not the first[ ]time [F]ather
physically abused her; it was only the first time that he used a
firearm. Mother reported that [F]ather has previously given her
bruises, black eyes, and on one occasion broke her collarbone.
Mother indicated at that time that she did not pursue a [protection
from abuse order] due to the current bail conditions; however,
she also stated that she did not want the no contact bail provision
to continue and that it was [F]ather’s decision whether he
returned to the home or not. At that time, she said that she’d
been with [F]ather for [eighteen] years and would not just “throw
away” their marriage. Mother stated that they had a lot of things
to work on but that this was all a “big commotion” and an
“accident.” Mother told the caseworker that [F]ather would be
moving back into the home after [his p]reliminary [h]earing,
because she was dropping the charges.
[Althoff] then confirmed again with [M]other that [F]ather
pointed a gun at her and threatened to shoot her during the
incident, which [M]other confirmed he did . . ..
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Trial Court Opinion, 5/11/23, at 2-3 (internal citation and brackets omitted).
The Agency obtained an emergency order for protective custody of V.D.,
filed a dependency petition based on the January 17th incident,2 and
subsequently petitioned the trial court to schedule a hearing for a finding of
abuse. Mother and Father obtained separate counsel.
At the adjudication hearing, the trial court admitted as an exhibit the
following written and signed statement Mother gave to police:
I was sitting with [S., Father’s cousin] talking about things that
have been going on between myself and [Father]. [Father] woke
up very mad. I ran out of the room hid in my kids room telling
them not to tell [Father] where I was [Father] was waving gun
around then managed to get out of the house with my two
daughters [V.D.] and [B.] called a friend to come pick us up I
heard [Father] say he was gonna kill me.
Agency’s Exhibit 1 (Mother’s statement to police signed and dated January 17,
2023); see also N.T., 3/24/23, at 12 (indicating Mother’s admissions that she
wrote and signed the statement to police).
Officer Werner testified that he responded to the home after police
received a report of the January 17th incident. Mother told him that during
the January 17th incident, Father got a handgun and was “waving the gun
around at everyone in the room,” including herself, V.D., B., and Father’s
cousin. N.T., 3/24/23, at 30-32. Officer Werner stated that V.D. did not want
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2 The Agency apparently obtained emergency custody of, and filed
dependency petitions as to, three other children in the home. The trial court
appointed a guardian ad litem for all children, including V.D. V.D. is the only
child subject to this appeal.
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to speak to him about the incident and seemed “pretty shaken up.” Id. at
32.
Althoff, the Agency caseworker who met with Mother and V.D. on
January 18, 2023, the day after the January 17th incident, testified that
Mother reported that Father “pulled out a gun, was waving it around[,]” and
“[a]t one point, it was pointed at V.D. and [M]other.” Id. at 53. Althoff
testified that V.D. was “in a state of shock[,]” did not speak to her, and was
staring at the corner of the wall. Id. at 54. When Althoff interviewed V.D. in
February 2023, V.D. reported that Father had a handgun during the January
17th incident and pointed it at her. See id. at 58-59. V.D. told Althoff that
she was afraid of Father, did not feel safe with him, and did not want to live
with him. See id. at 58-69.
Mother testified at the hearing and specifically denied all of her prior
reports about Father having a gun, pointing it at her, and threatening to kill
her. See id. at 11, 14. Mother acknowledged, however, that V.D. did not
speak for two or three days after the January 17th incident. See id. at 14.
V.D. testified in camera that she was asleep during the January 17th
incident and not actually present during the argument. See id. at 48. V.D.
told the court she wanted to go home, missed Father, and would feel safe at
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home with him because she realized that “he would never do anything . . . to
[hurt her].” Id. at 50.3
At the conclusion of the hearing, the trial court adjudicated V.D.
dependent and concluded Father perpetrated abuse by waving around a
loaded gun during the January 17th incident and creating a reasonable
likelihood of V.D. suffering bodily injury. See N.T., 3/24/23, at 92-93.4 The
court entered the order memorializing its findings and conclusions on March
24, 2023. Father timely appealed and filed a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The court filed a
responsive opinion.
Father raises the following issue for our review:
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3 Both Mother and V.D. explained they obtained information about the January
17th incident from B. See N.T., 3/24/23, at 12, 48. Mother attacked B.’s
reliability, and V.C. stated she no longer believed B.’s account of the January
17th incident. See id. at 12 (referring to B. as a drug addict), 51 (referring
to B. as a liar).
Father elected not to testify at the hearing due to the pending criminal
charges. We note that Father asserts the criminal matter resulted in a
summary citation for disorderly conduct. See Father’s Brief at 6.
4 At no point during the presentation of the Agency’s evidence did Father or
Mother object on hearsay grounds or argue that the Agency’s evidence was
incompetent. During arguments to the trial court, Mother discussed only the
possible placements of V.D., and offered the possibility that V.D. be returned
to the home with a safety plan excluding Father from the home. See N.T.,
3/24/23, at 90. Father’s counsel concurred in that request and presented no
further arguments concerning the adjudication of dependency or the
requested finding of abuse. See id. at 92.
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Did the trial court err and/or abuse its discretion when it made a
finding of abuse against [Father] where there was insufficient
evidence to prove abuse?
Father’s Brief at 4.
“[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 [trial] court’s inferences or conclusions of law.” In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). This Court will not overrule the findings
of the trial court if they are supported by competent evidence. See Interest
of La.-Ra. W., 266 A.3d 1071, 1089 (Pa. Super. 2021). We review decisions
in a dependency matter for an abuse of discretion. See R.J.T., 9 A.3d at
1190.
Although the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375, governs
dependency proceedings, the Child Protective Services Law (“CPSL”), 23
Pa.C.S.A. §§ 6301-6388, controls determinations of child abuse. See
Interest of T.G., 208 A.3d 487, 490 (Pa. Super. 2019). The CPSL defines
child abuse, in relevant part, as “intentionally, knowingly or recklessly . . .
[c]reating a reasonable likelihood of bodily injury to a child through any recent
act or failure to act.” 23 Pa.C.S.A. § 6303(b.1)(5). A court must find child
abuse by clear and convincing evidence. See T.G., 208 A.3d at 490.
Father claims there was insufficient competent evidence for the trial
court to find that abuse occurred. See Father’s Brief at 8. He contends the
testimony at the hearing established: (1) the January 17th incident involved
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a verbal altercation involving Father and his cousin; (2) V.D. was not “actually
present when the incident happened[;]” (3) Mother did not see Father with a
handgun; and (4) it was Mother’s adult daughter, B., who told Mother and
V.D. that Father was holding a handgun. Id. at 8-9. Father baldly asserts, in
his summary of the argument, that “the trial court considered hearsay
evidence over the direct testimony of [Mother and V.D. at the hearing]” Id.
at 7.
The trial court, in its Rule 1925(a) opinion, summarized the evidence
presented at the hearing, including the responding police officer’s testimony
about what Mother told him, Mother’s signed statement to police, and the
Agency caseworker’s testimony concerning V.D.’s reactions to, and initial
description of the January 17th incident. See Trial Court Opinion, 5/11/23, at
8, 12-13 (citing, inter alia, N.T., 3/24/23, at 30-31, 58-59; Agency’s Exhibit
1). The court acknowledged that Mother and V.D. recanted their initial reports
of the January 17th incident. See id. at 9, 13. The court concluded that
Mother’s and V.D.’s recantations were incredible, particularly in light of
Mother’s prior statements to Officer Werner, her prior reports to Althoff, and
her own testimony about the trauma suffered by V.D. after the January 17th
incident. See id. at 15. The court instead credited the testimony from Officer
Werner and Althoff concerning the January 17th incident. See id.
Following our review, we conclude Father’s arguments merit no relief.
Initially, we note that prior to this appeal, Father did not assert that the
Agency had relied on incompetent evidence. See Pa.R.A.P. 302(a) (stating
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that “[i]ssues not raised in the trial court are waived and cannot be raised for
the first time on appeal”); accord Interest of L.V., 209 A.3d 399, 418 (Pa.
Super. 2019). Father did not object at the hearing to the trial court’s
admission of exhibits or the court’s consideration of testimony from the
responding officer or the Agency caseworker. See Pa.R.E. 103(a)(1)(A).
Father’s failure to raise a hearsay exception on the record deprived the
Agency, as the proponent of the evidence, of the opportunity to assert a
foundation to admit Mother’s and V.D.’s prior statements as substantive
evidence. Father’s failure to object also deprived the trial court of the ability
to rule on the admissibility of the evidence. Father’s failure to object thus
prevents this Court from conducting a meaningful review of the admissibility
of the Agency’s evidence.
Furthermore, Father’s Rule 1925(b) statement asserted only that the
evidence was insufficient to sustain finding of abuse; it did not specify that
Father intended to challenge the competence of the evidence or the court’s
reliance on hearsay evidence. See Pa.R.A.P. 1925(b)(4)(ii), (vii); accord In
re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (noting that a vague Rule
1925(b) statement requiring a court to “guess what issues an appellant is
appealing” impedes meaningful review) (internal citation and quotations
omitted). Lastly, Father mentions “hearsay” in his appellate brief but does
not outline any relevant rules of evidence, the exceptions to the general rule
precluding hearsay, or which specific portions of the record should be deemed
incompetent. See Pa.R.A.P. 2119(a) (requiring an argument be “followed by
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such discussion and citation of authorities as are deemed pertinent”). Instead
of developing any cogent legal arguments, Father essentially asserts error in
the trial court’s refusal to credit Mother’s and V.D.’s recantation testimony at
the hearing. See Father’s Brief at 8-9.
Although Father arguably waived his claim, we conclude that the trial
court had a sufficient, competent evidentiary basis to reject Mother’s and
V.D.’s recantations. Mother’s written and signed statement clearly fell within
an exception to the rule prohibiting the admission of hearsay. See Pa.R.E.
802, 803.1(1)(B) (discussing the prior inconsistent statement of a declarant
witness exception application to a writing signed and adopted by the
declarant); accord Commonwealth v. Hanible, 30 A.3d 426, 445-47 (Pa.
2011). Mother’s written and signed statement to police provided a competent
basis for the court to conclude that Father waved a handgun during the
January 17th incident, Mother fled the house with V.D. and B., and Father
threatened to kill Mother. See Agency’s Exhibit 1 (Mother’s statement to
police signed and dated January 17, 2023).
Additionally, we note that testimony from the witnesses who observed
V.D.’s emotional state after the January 17th incident was not hearsay. See
Commonwealth v. Johnson, 838 A.2d 663, 673 (Pa. 2003) (noting that
testimony based on personal observations are not hearsay). Here, such
evidence included the observations by Officer Werner, Althoff, and Mother
herself, that V.D., shortly after the January 17th incident, appeared shaken
up, stared into a corner of a wall without speaking to Althoff shortly after the
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incident, and, in fact, did not speak at all for two or three days after the
incident. See N.T., 3/24/23, at 14, 32, 54. As noted by the trial court, such
observations are consistent with V.D.’s having suffered trauma after the
January 17th incident. See Trial Court Opinion, 5/11/23, at 15 (noting that
V.D. was so “traumatized . . . that she did not speak for two or three days”).
Such trauma belies V.D.’s hearing testimony that she slept through the
January 17th incident and only heard about the incident from her sibling, B.
We conclude the foregoing evidence provided a competent, non-
hearsay, basis for the trial court to reject Mother’s and V.D.’s recantations at
the hearing. See La.-Ra. W., 266 A.3d at 1089. Father’s broad argument
that the court erred in discrediting Mother’s and V.D.’s testimony, therefore,
fails. Because Father provides no focused arguments concerning the
competence of the remaining evidence presented at the hearing and does not
otherwise contest the court’s findings of abuse and the adjudication of
dependency, we affirm the order.
Order affirmed.
Date: 10/2/2023
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