In the Int. of: V.N., Appeal of: CYF ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: V.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: ALLEGHENY COUNTY :
OFFICE OF CHILDREN, YOUTH AND :
FAMILIES :
:
: No. 330 WDA 2021
Appeal from the Order Entered February 27, 2021
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-DP-0000745-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: October 21, 2021
The Allegheny County Office of Children, Youth and Families (“CYF”)
appeals from the order, entered February 27, 2021, adjudicating as dependent
V.N. (“Child”) (born in April of 2012), and returning Child to the care of
Maternal Grandparents. Following our review, we affirm.
The juvenile court summarized the facts and procedural history as
follow:
V.N. is a 10[-]year-old boy who resided in the custody of
Maternal Grandparents from the age of three. In the Spring of
2020, V.N.’s half-siblings, E.N. (DOB [May 2017]) and M.N. (DOB
[February 2020]) joined the household, after CYF removed them
from the care of their mother, K.N. (“Mother”). This court
adjudicated E.N. and M.N. dependent on April 30, 2020. The court
ordered that both children remain placed with Maternal
Grandparents, who served as kinship foster parents.
In late October 2020, CYF obtained an Emergency Custody
Authorization for V.N. and M.N. after receiving a report that three-
year-old E.N. had been discovered unresponsive and rushed to the
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emergency room. V.N. and M.N. were removed from Maternal
Grandparents’ care and placed with M.O. (“Maternal Great Aunt”).
Tragically, E.N. never regained consciousness and passed
away a few days after his admission to the hospital. The cause of
E.N.’s death remains undetermined. However, in the course of
E.N.’s treatment at Children’s Hospital, Dr. Adelaide Eichman
observed bruises on E.N. that were consistent with physical child
abuse. A Childline investigation into suspected physical abuse of
E.N. resulted in indicated reports regarding both Maternal
Grandparents.
As part of the investigation into E.N.’s death, V.N.
participated in a forensic interview at the Children’s Advocacy
Center at Children’s Hospital on October 26, 2020. In the
interview, V.N. disclosed considerable ongoing physical discipline
of E.N. by both Maternal Grandparents. However, V.N. did not
allege that Maternal Grandparents mistreated him in any way.
V.N. further stated that Maternal Grandparents did not use any
form of physical discipline on him.
On February 16, 2021, the court conducted an adjudicatory
hearing in the matter. The court heard testimony from Dr.
Adelaide Eichman, E.N.’s treating physician and the primary
witness related to the adjudicatory portion of the hearing. The
court admitted as CYF exhibits a written summary of V.N.’s
forensic interview and the video recording of the interview. Based
on the testimony and exhibits, the court adjudicated V.N.
dependent.
The court immediately proceeded to consider disposition
and heard testimony from CYF caseworker Glenice Anderson,
Mother, and Maternal Great Aunt. CYF recommended that V.N.
remain in placement and that the court permit a change in
placement as Maternal Great Aunt was not in a position to care for
V.N. long-term. The caseworker reported that V.N. was engaged
in individual therapy, attending school in person, and having
supervised visitation with Maternal Grandparents. When pressed
by the court to identify any safety threat to V.N. if he were to
return to Maternal Grandparents’ care, the caseworker
emphasized concern that Maternal Grandparents might subject
V.N. to physical discipline, even though she acknowledged that no
reports of such conduct existed. The caseworker did not identify
any other reason V.N. could not return home.
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Maternal Great Aunt stated that Child had been doing well
in her care, but that she recently noticed a change in his mood.
Child was withdrawn and sad a lot of the time, and he very much
wanted to return to Maternal Grandparents’ home. Maternal Great
Aunt expressed how important it was to Child that he be reunited
with Maternal Grandparents, noting that it was extremely difficult
for Child to be away from them.
Following the testimony, the court ordered that Child return
to Maternal Grandparents’ care. The court conditioned V.N.’s
return to Maternal Grandparents upon his continued attendance
at school in person and his continued participation in his individual
therapy.
Trial Court Opinion (TCO), 4/15/2021, at 2-5 (footnotes citing the record
omitted).
The court then explained its reasoning for concluding that the issue
raised by CYF in its brief on appeal was without merit. Specifically, CYF raised
the following issue:
Whether the trial court abused its discretion and/or erred as a
matter of law when it ordered that V.N. be returned to the care of
his [M]aternal [G]randparents when there was a clear necessity
for him to remain out of their care and return ran contrary to his
best interest as his safety could not be assured in the home of his
[M]aternal [G]randparents?
CYF’s brief at 4.
Our scope and standard of review in dependency cases is as follows:
We must accept the facts as found by the trial court unless they
are not supported by the record. Although bound by the facts, we
are not bound by the trial court’s inferences, deductions, and
conclusions therefrom; we must exercise our independent
judgment in reviewing the court’s determination, as opposed to
its findings of fact, and must order whatever right and justice
dictate. We review for abuse of discretion. Our scope of review,
accordingly, is of the broadest possible nature. It is this Court’s
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responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has applied the
appropriate legal principles to that record. Nevertheless, we
accord great weight to the court’s fact-finding function because
the court is in the best position to observe and rule on the
credibility of the parties and witnesses.
In the Interest of A.N., 39 A.3d 326, 330 (Pa. Super. 2012) (quoting In re
C.M.T., 861 A.2d 348, 351 (Pa. Super. 2004) (citations omitted)). “The
burden of proof in a dependency proceeding is on the petitioner to
demonstrate by clear and convincing evidence that a child meets that
statutory definition of dependency.” In re G., T., 845 A.2d 870, 872 (Pa.
Super. 2004). Moreover, “the dependency of a child is not determined ‘as to’
a particular person, but rather must be based upon two findings by the trial
court: whether the child is currently lacking proper care and control, and
whether such care and control is immediately available.” In re J.C., 5 A.3d
284, 289 (Pa. Super. 2010). Furthermore, the court may make an order of
disposition that is “best suited to the safety, protection and physical, mental,
and moral welfare of the child….” 42 Pa.C.S. § 6351(a).
As previously noted, the trial court discussed the testimony of various
witnesses. Those witnesses included Dr. Adelaide Eichman, Glenice Anderson,
a CYF caseworker, K.N., Mother, and M.O., the Maternal Great Aunt. 1 Based
on this testimony, the court explained the reasons for finding Child dependent.
Then, the court proceeded to consider the disposition of Child and placed him
in Maternal Grandparents’ care, stating:
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1 Child’s forensic interview and the video recording of that interview were also
included in the evidence before the court.
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In considering V.N.’s disposition, the court accorded great
weight to the undisputed evidence of V.N.’s emotional needs. At
the time of disposition, V.N. had been removed from Maternal
Grandparents for over three months, and CYF was recommending
placement in a new foster home with caregivers with whom V.N.
had no established relationship. Maternal Great Aunt credibly
testified to the negative impact of V.N.’s separation from his
Maternal Grandparents on his mental health. V.N. had become
withdrawn and sad since being placed with Maternal Great Aunt.
He started isolating himself from the rest of the family and
“basically started to shutdown.” Maternal Great Aunt reported
that V.N. was feeling “sad all of the time, all day long,” would
count the minutes until his supervised visits with Maternal
Grandparents, and prayed every night for return to Maternal
Grandparents’ home. V.N. regularly attended therapy to help him
cope with the situation.
When asked to explain how Maternal Grandparents pose a
safety threat to V.N., the CYF worker identified only speculative
concerns. Recognizing the absence of any evidence that Maternal
Grandparents ever mistreated V.N., the CYF worker expressed
concern that they might in the future, stating “it’s unclear if
Grandparents would initiate any corporal punishment” of V.N. The
court properly concluded that this speculative concern did not
establish clear necessity for placement outside Maternal
Grandparents’ home.
The court’s disposition provided for V.N.’s safety. V.N.
remains under CYF and court supervision, which ensures multiple
opportunities for the parties to monitor his well-being. The court
ordered that he continue to attend school in person, where he
interacts with additional adult teachers and staff who observe him
frequently, can report any concerns, and must report any
suspicions of child abuse. Finally, he participates in regular
therapy and has established a positive rapport with the therapist,
yet another adult who bears a legal obligation to report concerns
for V.N.’s safety. The court properly determined that these
safeguards constituted feasible alternatives to placement.
The court’s decision in this matter represents a
quintessential exercise of discretion. The court considered
evidence of ongoing harm to V.N.’s mental and emotional well-
being caused by separation from Maternal Grandparents. The
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court considered evidence of Maternal Grandparents’
mistreatment of V.N.’s younger half-sibling. The court considered
the lack of any evidence that Maternal Grandparents ever
mistreated V.N. The court concluded that the evidence of actual
harm to V.N.’s mental and emotional well-being weighed most
heavily in determining V.N.’s disposition. Consequently, the court
fashioned a disposition that alleviated that harm while putting in
place safeguards to ensure monitoring and oversight of V.N.’s
safety and well-being. The court acted well within its discretion in
reaching this determination.
TCO at 6-8 (footnotes citing the record omitted) (emphasis in original).
We agree. Based upon the law set forth above and a review of the
record in this case, we conclude that the trial court did not abuse its discretion
in its disposition that placed Child in the custody of Maternal Grandparents.
The trial court’s findings are supported by the testimony and evidence
presented at the hearing. CYF’s arguments generally attack the trial court’s
credibility determinations and disregard the evidence before the court that
contradicts its position.2 The court’s decision clearly considered the
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2 CYF orally argued and included in the argument section of its brief the
contention that the trial court should have ordered services to be provided to
Maternal Grandparents to ensure Child’s safety. However, that contention
was not included in the issue as stated in CYF’s Pa.R.A.P. 1925(b) statement
of errors complained of on appeal; nor was it contained in CYF’s issue as set
forth in its brief. Specifically, we note that Rule 1925(b)(4)(ii) directs that
the statement “shall concisely identify each error that the appellant intends to
assert with sufficient detail to identify the issue to be raised for the judge.”
The essence of the trial court’s decision recognized CYF’s safety concerns and
explained the safeguards it determined would ensure Child’s well-being. Any
suggestion that the trial court should have provided for services to Maternal
Grandparents was not evident from the sole issue raised by CYF. Thus, that
argument is waived, but certainly can be raised by CYF at the next hearing
before the trial court.
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safeguards it found would be in place that would serve Child’s best interests.
CYF has not convinced this Court otherwise.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2021
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