In the Int. of: I.D., Appeal of: D.D. ( 2021 )

J-A10045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: D.D., FATHER :
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: No. 2180 EDA 2020
Appeal from the Order Entered October 21, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000216-2020
IN THE INTEREST OF: K.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: D.D., FATHER :
:
:
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: No. 2181 EDA 2020
Appeal from the Order Entered October 21, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000217-2020
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JULY 2, 2021
D.D. (Father) appeals from the orders entered on October 21, 2020,
which adjudicated dependent his daughters, I.D., born in August 2016, and
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* Retired Senior Judge assigned to the Superior Court.
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K.D., born in March 2018 (collectively, the Children).1 After careful review,
we affirm.
The record reveals that the Philadelphia Department of Human Services
(DHS) first became involved with this family in February 2018. N.T., 9/10/20,
at 12. DHS received multiple reports raising concerns regarding the Children,
and it indicated2 an August 2018 report of child abuse against Mother due to
an incident involving K.D. Id. at 12, 15. In addition, DHS knew Mother to
have an “active substance issue[,]” and either it or a different child protective
services agency had removed other children from her care previously. Id. at
15. Critically, Father had agreed not to leave the Children with inappropriate
caregivers, which included anyone with a substance abuse issue. Id. at 15,
18, 32.
DHS received another report regarding the family on February 4, 2020.
Id. at 11-13. On February 11, 2020, DHS social worker, Zoharmella Savoy,
visited the family’s home. Id. at 13. When she arrived, she knocked on the
door for ten to fifteen minutes before one of the Children answered. Id. at
16. Father was absent, and the Children were under the supervision of Mother
and a woman named A.H. Id. at 13-16. A.H. “alerted” Father that Ms. Savoy
was at the home, and Father arrived a half hour after Ms. Savoy. Id. at 14.
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1 The Children’s mother, J.M. (Mother), did not appeal.
2 DHS “indicates” a report of child abuse if, after investigation, it determines
“that substantial evidence of the alleged abuse by a perpetrator exists[.]” 23
Pa.C.S. § 6303(a).
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Father then insisted, inaccurately, that he had only been gone for ten minutes.
Id. at 18.
As Ms. Savoy conducted her visit, she observed that the Children were
“pretty disheveled.” Id. at 21. Their hair was matted, and their hair and feet
appeared soiled. Id. Father insisted to Ms. Savoy that he left the Children in
the care of A.H., who was an appropriate caregiver. Id. at 20. However, A.H.
indicated to Ms. Savoy that she had used Methadone, and Ms. Savoy observed
that her speech was slurred, and her eyes were “low and kind of glazed over.”
Id. at 17. A.H. “seemed to nod off more than once,” even while Father and
Ms. Savoy were talking. Id. at 17, 20. Meanwhile, Mother appeared anxious,
“sort[ed] through drawers,” and then “got up and left through the basement.”
Id. at 14.
DHS obtained protective custody of the Children following Ms. Savoy’s
visit to the family’s home on February 11, 2020 and filed applications for
emergency protective custody on February 12, 2020. The trial court granted
the applications for emergency protective custody that same day. The court
conducted a shelter care hearing on February 13, 2020, after which it entered
shelter care orders. On February 18, 2020, DHS filed dependency petitions.
The court conducted a hearing on the petitions, which lasted two days.
On the first day of the dependency hearing, September 10, 2020, DHS
presented testimony addressing the circumstances leading to the Children’s
placement, summarized above, as well as their behavioral issues and need for
services. Ms. Savoy testified I.D. appeared to have speech delays and was
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“extremely hyper.” Id. at 22. She explained that I.D. “hits a lot. She pulls
hair, [and] is unable to . . . sit still or focus.” Id. As for K.D, Ms. Savoy
testified she exhibited “very violent tantrums where she threw herself on the
floor and banged her head[.]” Id. at 22-23. The Community Umbrella Agency
(CUA) case manager, Naxara Marcelin, testified she was in the process of
enrolling the Children in services at Children’s Crisis Treatment Center (CCTC).
Id. at 66. She explained, however, that the Children were not yet receiving
services because their foster parent did not like CCTC and wanted to enroll
them somewhere else. Id. at 68, 92-94, 97-98.
In addition, DHS presented testimony addressing its recommendation
that Father complete a specialized parenting class. Ms. Marcelin testified that
Father had identified an appropriate caregiver for the Children and completed
an initial parenting class. Id. at 67, 78-80. Ms. Savoy testified Father was
enrolled in a second, specialized parenting class, which DHS recommended he
complete. Id. at 46-48. Ms. Savoy noted Father did not seem to “understand
how to be . . . an all[-]encompassing caregiver for the [C]hildren,” and that
he believed his sole role was to support the Children by working while a female
provided direct care. Id. at 22, 48. Although Father completed one parenting
class, and was participating in another, DHS did not recommend returning the
Children to Father’s care. Ms. Marcelin explained, “we still need to ensure that
[Father is] able to guide and direct the girl[s’] behavior when they’re in the
home. And so we need to see something more hands on than just the head
knowledge.” Id. at 67.
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DHS completed its case-in-chief and rested at the conclusion of the first
day of the hearing. On the second day, October 21, 2020, DHS did not call
any witnesses. However, Father’s counsel called the new CUA case manager,
Margorie Tucker. Ms. Tucker testified Father had completed a parenting class.
N.T., 10/21/20, at 9-10, 23-24. Questioning by Father’s counsel suggested
this was the specialized parenting class DHS recommended in September. Id.
Ms. Tucker also testified the Children were still not receiving the appropriate
services. Id. at 16-25, 32-34, 39, 46-47. She explained the Children’s foster
parent allegedly confused CCTC with another organization, known as “CCIS,”
and attempted to enroll the Children for services at the wrong place. Id. at
16, 32-34. Ms. Tucker agreed that CUA was “working with” the foster parent
to enroll the Children at CCTC. Id. at 33.
Following the testimony, the trial court announced it would adjudicate
the Children dependent. Id. at 57-58. The court expressed grave concerns
regarding the foster parent’s failure to enroll the Children in services. The
court explained it did not find credible the assertion that the foster parent
confused CCTC with CCIS and directed that the foster parent would need to
attend the next court date and face a possible finding of contempt if she did
not enroll the Children by that time. Id. at 58-59. The court entered orders
memorializing its decision on October 21, 2020. Father timely filed notices of
appeal, along with concise statements of errors complained of on appeal, on
November 18, 2020.
Father now raises two claims for our review:
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1. Whether the trial court erred, abused discretion and violated
[Father’s] due process right to notice in adjudicating the subject
minors dependent with the basis being present inability predicated
upon vague allegations of which [Father] was given no notice[?]
2. Whether the trial court erred and abused discretion in
adjudicating the subject minors dependent based on present
inability and finding placement the least restrictive environment
when the adjudication and placement decision[s] were predicated
solely upon vague allegations of which [Father] had no notice and
which were unsubstantiated by the record, thus rendering the
decision manifestly unreasonable[?]
Father’s brief at 4.
We review orders in dependency proceedings pursuant to an abuse of
discretion standard of review. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
We must accept the trial court’s findings of fact and credibility determinations
if the record supports them, but we need not accept the court’s inferences or
conclusions of law. Id. Regarding Father’s assertion that the court violated
his right to due process, this raises a question of law for which our standard
of review is de novo. In the Interest of S.L., 202 A.3d 723, 729 (Pa. Super.
2019).
The Juvenile Act governs dependency proceedings. See 42 Pa.C.S.
§§ 6301–6375. The Act provides a trial court may adjudicate a child
dependent if it determines he or she meets the requirements of one of ten
definitions listed at Section 6302. Here, the court adjudicated the Children
dependent pursuant to the first of these definitions, which describes a
dependent child as lacking “proper parental care or control, subsistence,
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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(1).
If a trial court determines a child is dependent, it must then enter an
appropriate dispositional order. 42 Pa.C.S. § 6341(c), 6351(a); Pa.R.J.C.P.
1409(A)(1), 1509(D), 1515. The Juvenile Act and our Rules of Juvenile Court
Procedure provide a court may remove a child from a parent’s home if it finds
that remaining in the home would be contrary to the child’s “welfare, safety
or health[.]” 42 Pa.C.S. § 6351(b)(1); Pa.R.J.C.P. 1514(A)(1). In addition,
our case law instructs that a court may remove a child from a parent’s home
“only upon a showing that removal is clearly necessary for the child's well-
being. . . . [C]lear 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 A.B., 63 A.3d 345, 349-50 (Pa. Super. 2013)
(quoting In the Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980)).
It is important to acknowledge that a parent has the right to due process
in any dependency proceeding involving his or her child. See, e.g., In the
Interest of Jones, 429 A.2d 671 (Pa. Super. 1981). However, the parent’s
right is not without limitations. See S.T. v. R.W., 192 A.3d 1155, 1161 (Pa.
Super. 2018) (quoting In re Adoption of Dale A., II, 683 A.2d 297, 300
(Pa. Super. 1996)) (“‘Due process is flexible and calls for such procedural
protections as the situation demands.’”). “‘[P]rocedural due process requires,
at its core, adequate notice, opportunity to be heard, and the chance to defend
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oneself before a fair and impartial tribunal having jurisdiction over the case.’”
Id. at 1161 (quoting J.M. v. K.W., 164 A.3d 1260, 1269 (Pa. Super. 2017)).
Because Father’s claims on appeal are interrelated, we will address them
together. Father argues in his first claim that the trial court violated his right
to due process by adjudicating the Children dependent based only on “vague
allegations of which [he] was given no notice.” Father’s brief at 15. Father
contends that the averments DHS included in its dependency petitions did not
match the evidence DHS ultimately presented during the hearing. Id. at 15-
20. Specifically, he maintains DHS averred in its petitions that the Children
were dependent because he left them with inappropriate caregivers, but that
the court adjudicated the Children dependent because of behavioral issues,
which the petitions did not allege. Id.In his second claim, Father summarizes the testimony presented during
the hearing and contends the trial court’s decision to adjudicate the Children
dependent and remove them from his home was unreasonable and contrary
to the evidence. Id. at 20-28. Father asserts that he identified an appropriate
caregiver for the Children, that he completed two parenting classes, that any
necessary services could have been implemented in his home, and that the
Children’s foster parent impaired his ability to achieve reunification. Id. at
28-29.
The trial court did not issue a written opinion in support of its decision
to adjudicate the Children dependent but instead issued a statement directing
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our attention to its comments on the record at the conclusion of the hearing
on October 21, 2020. The court explained its decision as follows, in relevant
part:
THE COURT: The record reflects that services were
implemented to prevent placement, including a safety plan.
Various witnesses testified to the girls’ behavior and delays.
Notwithstanding an abundance of services, the [C]hildren were
found not to be safe in the home. The testimony reflects
[M]other’s active drug use with no evidence of treatment. The
record also reflects that [F]ather does not understand the special
needs of the [C]hildren, nor how to guide and direct them. It
reflects [F]ather’s position that it’s [his] role to be a provider and
that childcare is the role of a woman.
As counsel pointed out, the lack of therapy may have [led]
to a worsening of the girls’ behavior. I am extremely concerned
that services have not been implemented to date.
This [c]ourt, based on the testimony presented, orders the
[C]hildren to be adjudicated dependent and committed to [DHS]
based on present inability. Father is to engage in CCTC and
PriCARE[3] when appropriate. Visits are to be supervised at the
agency, modifiable by agreement.
. . . . Father is to provide documentation of his parenting
classes.
Children are to go to CCTC or . . . receive other trauma
services as appropriate forthwith. If these services are not
implemented the foster mother is to appear at the next court date.
CUA, you should be aware that this [c]ourt is considering a
rule to show cause to find her in contempt. It should be made
clear to any foster parent that they are in no way meant to thwart
any services that this [c]ourt orders.
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3 The record is not entirely clear on the purpose of the PriCARE program but
indicates that it is a service CCTC offers, and that CUA recommended it so
that Father “can engage with the girls and help with the services that they
need.” N.T., 10/21/2020, at 22, 36.
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***
THE COURT: I do not find it credible that there was a
confusion about the names of services. . . .
***
[Mother’s counsel]: . . . . Would the [c]ourt consider, given
again that this petition was filed back in February, 2020, and the
overarching principle of the Juvenile Act is to preserve the unit of
the family whenever possible, to adjudicate today but rather to
permit supervision in [F]ather’s home[?] There’s a lot of concern
about [F]ather’s ability to direct and guide --
***
[Mother’s counsel]: . . . . Because the testimony was that
[F]ather has stable employment, appropriate housing, that there’s
a plan for an appropriate caregiver while [F]ather’s at work. And
it seems the optimal way to service this family, to ensure that
[F]ather learns the skills to really direct and guide these children
is to utilize those skills and work with the [C]hildren, and that
already this family has been separated for many, many months.
And again --
THE COURT: Counsel, I hear your argument. However, the
record does not support that. In addition to which, part of the
delay is that counsel for parents have requested at least two
continuances, which delayed the matter until today. At this time
--
[Mother’s counsel]: (inaudible)
THE COURT: Counsel, Counsel, Counsel. At this time I am
not ordering a [parenting capacity evaluation] inasmuch as if I
were to order one I would want the results of the therapy that the
[C]hildren were involved in to be included. And since that has not
taken place I will consider [an evaluation] some time in the future
if it is appropriate.
N.T., 10/21/20, at 57-60.
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At the outset, we reject Father’s claim he did not receive adequate notice
that DHS intended to pursue allegations regarding the Children’s behavioral
issues during the dependency hearing. Father waived this claim by failing to
include it in his concise statements. See In re M.Z.T.M.W., 163 A.3d 462,
466 (Pa. Super. 2017) (“[I]ssues not included in an appellant’s . . . concise
statement of errors complained of on appeal are waived.”).4
Even if Father had not waived this claim, our review of the dependency
petitions reveals DHS included averments as to Father’s failure to address the
Children’s behavioral issues. The petitions state:
On February 4, 2020, DHS received allegations that [the
Children] exhibited self-harming behaviors; that they were in
need of constant supervision; that [I.D.] had hit [K.D.] in the face;
that [Father] failed to redirect [I.D.] when she hit [K.D.]; and that
the home had been seen to be in poor condition in the past.
Dependency Petition (I.D.), 2/18/20, at ¶ 5(f); Dependency Petition (K.D.),
2/18/20, at ¶ 5(f). DHS’s testimony at the hearing appeared to address these
averments. See N.T., 9/10/20, at 22-23 (Ms. Savoy testifying regarding I.D.’s
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4 In his concise statements, Father indicates he does not yet have access to
transcripts of the dependency hearing, and, therefore, “reserves the right to
expand and/or supplement this [c]oncise [s]tatement, and to raise additional
issues in Appellant’s Brief[.]” Concise Statement (I.D.), 11/18/20, at ¶ 5;
Concise Statement (K.D.), 11/18/20, at ¶ 5. The absence of a transcript does
not permit a party to avoid waiver simply by “reserving the right” to raise
additional claims later. Pa.R.A.P. 1925(c)(2) provides, in relevant part, “Upon
application of the appellant and for good cause shown, an appellate court may
remand in a civil case for the . . . amendment or supplementation of a . . .
[s]tatement[.]” Father did not comply with this procedure.
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tendency to “hit[] a lot” and K.D.’s “very violent tantrums where she threw
herself on the floor and banged her head[.]”).
It is also important to add that DHS presented its case-in-chief, in its
entirety, on September 10, 2020, and then rested. Father did not begin his
case-in-chief until the hearing resumed on October 21, 2020. Accordingly, to
the extent Father was unaware DHS intended to focus so much of its attention
on the Children’s behavioral issues during the first day of the hearing, he had
well over a month to prepare and address those issues on the second day.
Moreover, Father’s assertion that the trial court adjudicated the Children
dependent based solely on behavioral issues trivializes the significant evidence
DHS presented against him demonstrating that he knowingly endangered the
Children’s safety. The record reveals Father agreed not to leave the Children
with inappropriate caregivers but then left them with Mother, an indicated
child abuser and substance addict, and A.H., who appeared to be under the
influence when Ms. Savoy arrived at the home in February 2020. Father was
also dishonest with Ms. Savoy, claiming that he was gone for only ten minutes,
when Ms. Savoy had observed Father to be absent for significantly longer than
that. Combined with the other concerns in this case, including the Children’s
behavioral issues and their disheveled appearance when they entered foster
care, it was within the court’s discretion to conclude the Children lacked proper
parental care and control pursuant to Section 6302(1), and that it was clearly
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necessary to remove them from the home. 42 Pa.C.S. § 6302(1); A.B., 63
A.3d at 349-50.
While Father now contends on appeal that he has already remedied the
basis for the Children’s removal, this argument is meritless. Father maintains,
in essence, that the trial court was obligated to accept that he corrected his
significant parenting deficits, and that they would not reoccur, simply because
he had gone through the motions of identifying an appropriate caregiver for
the Children and completing parenting classes. Given the severity of Father’s
misconduct, the family’s lengthy history with DHS prior to the adjudication,
and the potential risk of harm to the Children if the court were to return them
to Father’s care immediately, we see no basis to disturb the court’s decision
that ongoing foster care and a gradual return to Father with court supervision
was the appropriate result in this case.5
Based on the foregoing analysis, our review of the record confirms that
the trial court did not violate Father’s right to due process. Our review also
supports the court’s conclusion that the Children are dependent pursuant to
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5 To the extent Father proposes the trial court should not have adjudicated
the Children dependent because their foster parent failed to enroll them in
services at CCTC, we reject that argument as well. If a trial court determines
that children are unsafe in their parents’ care, the court should not return the
children to that unsafe environment simply because they happen to reside
with an uncooperative foster parent. Here, the court was aware of the foster
parent’s recalcitrance and took reasonable steps to address it by directing that
she would need to attend the next court date if she continued failing to enroll
the Children in services.
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Section 6302(1), and that it was clearly necessary to remove them from the
home. Because Father’s claims do not warrant relief, we affirm the court’s
October 21, 2020 orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
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