In the Int. of: L.R., Appeal of: A.M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: L.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.M., MOTHER :
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: No. 1041 EDA 2023
Appeal from the Order Entered March 27, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000228-2023
IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.M., MOTHER :
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: No. 1042 EDA 2023
Appeal from the Order Entered March 27, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000229-2023
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 28, 2023
A.M. (“Mother”) appeals from the orders of adjudication and disposition
entered by the Philadelphia County Court of Common Pleas on March 27,
2023, with respect to her sons, L.R., born in December of 2011, and C.R.,
born in April of 2019 (collectively, “the Children”).1 We affirm.
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1 The Children’s father died of a drug overdose on a date unspecified in the
record. See N.T., 3/27/23, at 10.
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The certified record reveals that the Philadelphia Department of Human
Services (“DHS”) received a general protective services report as well as a
supplemental report on March 3, 2023, which raised concerns regarding
Mother’s “behavioral health.” N.T. at 6-7. On March 9, 2023, the DHS
investigator, Gabrielle Rivera, visited Mother and the Children in their home,
at which time Mother denied the concerns set forth in the report. Id. at 7-8.
However, Mother made concerning statements to Ms. Rivera, including
“stating that there w[ere] toys delivered to the home with cameras in them.
She also was reporting that people were breaking into her home and changing
her bleach and her son’s gel to aloe, and her eyelash glue to suntan lotion.”
Id. at 8. Further, Ms. Rivera testified that Mother “believed that someone was
messing with her and also hacking her phone.” Id. at 9.
Later that day, the trial court issued orders of protective custody with
respect to the Children, and DHS placed them in the home of their paternal
aunt. Id. at 10-11. The trial court held a shelter care hearing on March 10,
2023, which resulted in the court lifting the orders of protective custody and
ordering the temporary commitment of the Children to stand.
In addition, Mother was involuntarily committed to a mental health
hospital identified as Malvern Hospital on March 10, 2023. Id. at 9-10, 19.2
According to Fela Hope, the community behavioral health court
representative, Mother was discharged from the hospital on March 16, 2023,
____________________________________________
2 See Mental Health Procedures Act, 50 P.S. § 7302 (Involuntary examination
and treatment authorized by a physician).
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with the recommendation “that she do an [intensive outpatient program] and
medication management.” Id. at 19.
On March 14, 2023, DHS filed dependency petitions pursuant to the
Juvenile Act, 42 Pa.C.S. §§ 6301-6365. The subject proceeding occurred on
March 27, 2023. By this time, the Children were placed in “general foster
care” after their paternal aunt informed DHS on March 14, 2023, that she was
no longer willing to care for them. Id. at 11.
DHS presented the testimony of Ms. Rivera and Ms. Hope. Mother
appeared for the proceeding and was represented by counsel, but she did not
testify. Mother introduced a single piece of documentary evidence during the
hearing, which the court admitted — “a letter from Prevention Point
Philadelphia in regard to Mother being a participant in their stabilization-
treatment-engagement program (‘STEP’).” Trial Court Opinion (“TCO”),
6/26/23, at 7 (citing N.T. at 22).
By orders of adjudication and disposition dated and entered on March
27, 2023, the court adjudicated the Children dependent pursuant to 42 Pa.C.S.
§ 6302, found that allowing the Children to remain in Mother’s home would be
contrary to their welfare, and transferred legal custody of the Children to DHS.
Mother timely filed notices of appeal and concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which
this Court consolidated sua sponte. The trial court filed its Rule 1925(a)
opinion on June 26, 2023.
On appeal, Mother raises the following issues for review:
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1. Did the trial court err as a matter of law and abuse its discretion
by adjudicating [the Children] to be “dependent children”
pursuant to 42 Pa.C.S.[] § 6302 in the absence of clear and
convincing evidence that [the Children] were presently “without
proper parental care and control … as required by law?”
2. Did the trial court err as a matter of law and abuse its discretion
by relying on inadmissible hearsay statements to adjudicate [the
Children] to be “dependent children” pursuant to 42 Pa.C.S.[] §
6302?
3. Did the trial court err as a matter of law and abuse its discretion
by committing [the Children] to the legal custody of [DHS] in the
absence of clear and convincing evidence that removal from
Mother was clearly necessary?
Mother’s Brief at 3-4.
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. 42 Pa.C.S. § 6341(a). Section 6302 defines a “dependent
child,” in part, as one 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. 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
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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. § 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, “[i]f 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
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
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clearly necessary.” In the Interest of S.S., 651 A.2d 174, 177 (Pa. Super.
1994).
In her first issue, Mother argues that the statements she made to the
DHS investigator at the time of her visit were insufficient evidence to
adjudicate the Children dependent. See Mother’s Brief at 12-13. Further,
Mother argues that DHS did not present any evidence that her mental health
impacted her ability to provide proper parental care to the Children. See id.Likewise, Mother argues that DHS did not present any evidence that she was
using illicit drugs or that her drug use impacted her ability to provide proper
parental care. See id. at 13. We disagree.
In its Rule 1925(a) opinion, the trial court found as follows, in part:
While the Children were in Mother’s care, Mother was having
hallucinations and displaying erratic behavior to the extent that
she needed to be hospitalized. (N.T. … at 6-9). DHS’s investigator
witnessed Mother’s paranoia and erratic behavior firsthand while
at Mother’s home. (Id. at 6-10). Mother informed her that toys
were delivered to the home with cameras in them. (Id. at 8).
Mother also told the investigator that people had broken into the
home and tampered with bleach and personal hygiene products in
the home. (Id.) The investigator checked the bleach and
personal hygiene products and did not find anything abnormal or
concerning. (Id. at 16). Mother refused mental health treatment
but admitted that “bad things have been happening to her” since
2018. (Id. at 8).
***
The hospital determined that Mother’s diagnosis is bipolar
disorder, delusional disorder, and substance abuse and
recommended that Mother participate in an intensive outpatient
program and medication management. (N.T. … at 19). DHS has
not received an update regarding Mother’s treatment and Mother
has refused to sign any release of information. (Id. at 10).
Additionally, Mother’s attorney admitted into evidence a letter
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from Prevention Point Philadelphia that included drug test results
from September 2, 2022[,] which was six months prior to the
adjudication hearing, thus, making them irrelevant to support her
denial of substance use issues. (Id. at 24). … Because of the
seriousness of Mother’s mental health concerns, Mother’s lack of
treatment and [the court’s] lack of knowledge regarding Mother’s
substance abuse/use, this [c]ourt does not believe Mother can
keep the Children safe….
TCO at 9-10. The record supports the court’s findings.
Indeed, Ms. Hope testified that specialists at the mental hospital where
Mother was involuntarily committed approximately ten days before the subject
proceeding, that is, from March 10-16, 2023, diagnosed her with “unspecified
bipolar, delusional disorder, and substance abuse.” N.T. at 19. Ms. Hope
testified that Mother had a follow-up appointment on March 21, 2023, but she
was unable to confirm that Mother attended. Id.
Mother presented a single document, a one-page letter dated March 17,
2023, from Prevention Point Philadelphia, stating that she was a participant in
the STEP program which included “medically assisted treatment and case
management services.” Exhibit M-1. Attached to the letter was a lab report
from Mother’s drug screen on September 2, 2022, more than six months
before Mother was involuntarily committed as well as six months before the
subject proceeding, which was negative for illicit substances. In addition, the
letter stated Mother had “an appointment with psychiatric services at JFK for
April 21st [at] 10:30 a.m. to ensure she is receiving wrap-around services.”
Exhibit M-1.
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Thus, the trial court was presented with competent evidence that Mother
suffered from mental illness with symptoms that included hallucinations.
Mother was also diagnosed with substance abuse the same month that the
dependency hearing occurred, and the court was presented with no evidence
to contradict this diagnosis. Although Mother was participating in the above-
described STEP program and had a future appointment scheduled for
psychiatric services, there was no evidence with respect to the stability of
Mother’s mental health at the time of the hearing. Further, Ms. Rivera testified
that the Children needed “to be connected to therapy and also grie[f]
counseling. Also [L.R.] was diagnosed with dyslexia, so he needs to be
connected to the services as well.” N.T. at 12. Based on this evidence, we
discern no abuse of discretion by the trial court’s conclusion that the Children
are without proper parental care or control necessary for their physical,
mental, or emotional health. See 42 Pa.C.S. § 6302.
In her second issue, Mother argues that the court abused its discretion
and/or erred by relying on inadmissible hearsay statements from Ms. Rivera
and Ms. Hope in adjudicating the Children dependent. Specifically, she asserts
that Ms. Rivera adduced inadmissible hearsay testimony relating to the
allegations set forth in the general protective services report, and Mother’s
involuntary commitment to the mental health hospital. See Mother’s Brief at
18 (citing N.T. at 6-7, 9-10). Mother also claims that Ms. Hope espoused
inadmissible hearsay testimony relating to the diagnoses and recommended
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treatment received by Mother as a result of her involuntary commitment. See
id. at 18-19 (citing N.T. at 19). We disagree.
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).
First, with respect to Ms. Rivera’s testimony regarding the concerns
raised in the general protective services report, we conclude that it was not
offered for the truth of the matter asserted, but to explain how the Children
became known to DHS. Therefore, it did not constitute hearsay.
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We also conclude that Ms. Rivera’s testimony regarding Mother’s being
involuntarily committed did not constitute inadmissible hearsay because Ms.
Rivera requested that “mobile crisis” visit Mother on March 9, 2023, which
resulted in Mother’s involuntary commitment. See N.T. at 9-10, 19. As the
DHS investigator in this case, there is no indication in the record that Ms.
Rivera’s testimony regarding Mother being involuntarily committed is disputed
or otherwise untrustworthy. Rather, Mother’s involuntary commitment is a
well-established matter of record pursuant to Ms. Rivera’s personal knowledge
of these matters. See, e.g., Commonwealth v. Johnson, 838 A.2d 663,
673 (Pa. 2003) (holding that where a declarant’s testimony is based upon the
individual’s “personal knowledge” and not a mere “repetition of hearsay
declarations” then such testimony is permissible and does not constitute
hearsay). Furthermore, the fact of Mother’s involuntary commitment is
corroborated by the trial court’s March 10, 2023 protective custody orders.
Second, the relevant testimony by Ms. Hope is as follows on direct
examination by DHS’s counsel:
A. As far as mom’s mental health, I do have that she was admitted
on a 302 to [the mental health hospital] on 3/10. She was
discharged on 3/16. They did recommend that she do an
[intensive outpatient program] and medication management….
Q. [W]hat were mom’s diagnoses at [the mental hospital]?
A. Mom —
[Mother’s counsel]: Objection, hearsay.
THE COURT: Overruled.
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A. Mom’s diagnosis is unspecified bipolar, delusional disorder, and
substance abuse (inaudible).
N.T. at 19.
With respect to Ms. Hope’s testimony regarding Mother’s specific
diagnoses, Mother does not indicate that this information is untrustworthy or
based upon a hearsay declaration. Our review of the record indicates that Ms.
Hope’s testimony is based upon her personal knowledge, which she gathered
as a result of being the community behavioral health representative in the
underlying matter. See, e.g., Johnson, 838 A.2d at 673.
Even assuming, arguendo, that Ms. Hope’s testimony constituted
inadmissible hearsay, we would conclude that any erroneous admission would
be harmless. It is clear that the trial court did not base its dependency finding
upon these diagnoses but upon Ms. Rivera’s direct observations of Mother.
See TCO at 9 (“Mother was having hallucinations and displaying erratic
behavior to the extent that she needed to be hospitalized. DHS’s investigator
witnessed Mother’s paranoia and erratic behavior firsthand while at Mother’s
home.”) (citing N.T. at 6-10). Thus, even if Ms. Hope’s testimony adduced in
this respect was inadmissible hearsay, we would deem it to be harmless error.
Next, concerning Ms. Hope’s testimony about Mother’s treatment
recommendations, we conclude Mother’s argument that it was inadmissible
hearsay is waived due to her counsel’s failure to object during the proceeding.
See In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (stating, “[i]n order
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); see also N.T. at 19. Even if not
waived, we would conclude that it is meritless.
Indeed, Mother introduced, and the court admitted into evidence, the
above-described letter from Prevention Point Philadelphia, stating that she
was a participant in the STEP program which included “medically assisted
treatment and case management services.” Exhibit M-1. In addition, the
letter stated Mother had “an appointment with psychiatric services at JFK for
April 21st [at] 10:30 a.m. to ensure she is receiving wrap-around services.”
Id. Based on this evidence, there is no dispute that Mother needed mental
health services, but the exact nature of the treatment and the extent of her
mental health instability was not revealed during the hearing. Therefore, even
if Mother did not waive this argument, we would conclude that it is meritless.
In her third and final issue, Mother argues that the evidence was
insufficient for the court to remove the Children from her home. Specifically,
she asserts that DHS did not consider “whether alternative services such as
in-home services and court ordered supervision could meet the Children’s
current needs.” Mother’s Brief at 23. 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. § 6351(b)(1)-(3).
In this case, the trial court found that allowing the Children to be
returned to Mother’s home would be contrary to their welfare. Section
6351(b)(3), not (b)(2), is applicable because the Children were initially
removed from Mother by an order of protective custody. As such, preventive
services were not offered to Mother when the Children were placed on March
9, 2023. By adjudicating the Children and placing them in foster care, the
court found that the lack of preventive services was reasonable, and the
Children’s placement in foster care was clearly necessary, in light of the
testimony of Ms. Rivera.
Specifically, as detailed above, Ms. Rivera observed Mother’s paranoia
and erratic behavior on March 9, 2023, and she was involuntarily committed
the next day. Further, Mother’s exhibit M-1 demonstrated that her mental
health condition necessitates “medically assisted treatment and case
management services,” the details of which were not presented to the trial
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court. We will not disturb the court’s conclusion that it was necessary to
remove the Children from Mother. Accordingly, we affirm the orders.
Orders affirmed.
Date: 11/28/2023
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