In the Interest of: A.R., a Minor, Appeal of: M.R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.R., MOTHER
No. 508 WDA 2016
Appeal from the Order March 11, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0001680-2015
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 15, 2016
M.R. (“Mother”) appeals from the March 11, 2016 order of adjudication
and disposition finding that: A.R. (“Child”) was dependent; the Allegheny
County Office of Children, Youth and Families (“CYF”) made reasonable
efforts to prevent or eliminate the need for removal; and Child was to
remain in foster care, as that was the least restrictive placement that met
Child’s needs. We affirm.
The trial court set out the following factual and procedural history:
The parties appeared on November 16th, 2015, December
16th, 2015, January 13th, 2016, February 12th, 2016,
February 26th, 2016 and March 11th, 2016 for Shelter
Review and Adjudicatory Hearings. Ultimately, [Child] was
adjudicated dependent under 42 Pa.C.S. §6302(1). At
each hearing,1 the Court found that [CYF] made
reasonable efforts to prevent or eliminate the need for
removal of the child from [Mother’s] care. Mother filed a
timely appeal in this matter alleging that the Court acted
unreasonably in finding that CYF made reasonable efforts
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to prevent or eliminate removal, by placing the child in
stranger foster care at the dispositional phase of the case
and that Mother’s due process rights were violated by
allowing multiple continuances. For the reasons set forth
below, the orders of this Court should be affirmed.
1
With the exception of the first shelter hearing,
which was conducted by Hearing Officer James Alter.
...
The child was born [in November 2015]. CYF received a
referral . . . from the hospital staff regarding Mother’s
ability to provide basic care for the infant. The staff’s
concerns centered on Mother’s alleged inability to parent
the child based upon her history of bipolar disorder,
depression, and mild retardation. CYF was able to identify
the potential father, M.W. (hereinafter Father), but could
not locate him. The caseworker attempted to locate Father
at his last known address but was unable to do so prior to
removal.
CYF was granted an Emergency Custody Authorization
order that gave them permission to place the child in
shelter care. A Shelter Hearing was held on November
16th, 2015 before Hearing Officer James Alter. The Court
ordered CYF to file a Petition for Dependency. Based upon
the age of the child, Mother’s mental health concerns, and
not being able to locate Father, the Court ordered it was
reasonable for the child to remain in care. Additionally,
the Court held that based upon the emergency nature of
the situation, safety consideration and the circumstances
of the family, the lack of services were reasonable. The
Court ordered CYF to investigate possible family
placements and prepare a Family Finding Report.
A Petition for Dependency was filed on November 16th,
2015. The family appeared before this Court on December
16th, 2015 for an Adjudicatory Hearing on aforementioned
Petition. Both Mother and Father appeared, and Father
requested counsel as well as a paternity test. Father
presented with obvious mental limitations, and the Court
had concerns about his capacity to understand the
proceedings. Additionally, it was discovered that Father
had relocated to Philadelphia. The Court advised Father to
obtain counsel, and he was given the brochure for the
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Juvenile Court Project Office. Additionally, CYF provided
the parties with over 300 pages of reports regarding
Mother’s mental health treatment. The Court ordered that
genetic testing be completed that day, and that Mother
attend an individual and interactional evaluation by
Allegheny Forensic Associates (hereinafter AFA). Counsel
for Mother requested additional visits and that CYF make a
referral to the Office of Intellectual Disability (hereinafter
OID) for a parenting assessment. The Court agreed to
increase Mother’s visitation but wanted Mother to complete
the AFA evaluations prior to being referred to the OID. All
parties were in agreement with the continuance.
The parties appeared again on January 13th, 2016. There
was discussion about how best to address Mother’s
multiple and conflicting diagnoses as contained in the
records provided by CYF at the previous hearing. There
were concerns that Mother had a mental retardation
diagnosis along with an intellectual disability. All parties
expressed concern over whether Mother’s parenting needs
may be best met by Achieva2. There was contradictory
information as to the level Mother was functioning on the
[i]ntellectual disability scale and her specific needs were
unknown. CYF had not made referrals for the AFA
evaluations pending the paternity testing. Paternity tests
confirmed that M.W. was indeed the biological father of the
child; however, Father did not appear at the hearing. CYF
was in communication with the Office of Child Youth and
Families in Philadelphia for the purpose of investigating
Father’s living arrangements.
2
This organization provides services to individuals
suffering from moderate to severe intellectual
disabilities. Achieva offers parenting supports for
disabled individuals as well as their families.
CYF requested a continuance to investigate Father’s ability
as a ready, willing and able parent, as well as to make
referrals for AFA evaluations for Mother and Father.
Mother’s counsel objected to any further delay alleging
that she was ready, willing and able to care for the child.
The Court granted the continuance based on overall lack of
information about Mother’s mental health status. The
Court was satisfied that Mother was receiving adequate
mental health treatment and that a brief delay was
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reasonable in order to determine Mother's exact diagnosis.
The Court ordered that CYF make a referral for expedited
AFA evaluations.
The parties next appeared on February 12th, 2016. Father
appeared at this hearing but was again unrepresented.
The Court expressed a continued concern that Father did
not fully understand the proceedings. Father requested a
continuance to obtain an attorney. Mother had not yet
attended her AFA evaluations as they were scheduled for
the week following that hearing3. Mother’s counsel
strenuously objected to any further delays in the
proceedings and requested that the child be returned to
Mother’s care. Ultimately, the Court continued the case
two weeks so that Father could retain counsel4 and so the
Court would have the benefit of reviewing the reports from
the AFA evaluations. The same concerns surrounding
Mother’s mental health diagnosis persisted and the Court
believed the AFA evaluator to be in the best position to
recommend services for the family.
3
The AFA referral was made on January 13th, 2016
by CYF caseworker Heather Lunn[.]
4
The Court asked the CYF caseworker to accompany
him to the Juvenile Court Project’s Office to apply for
counsel, which she agreed to do.
An Adjudicatory Hearing was held on February 26th, 2016.
Father again appeared without an attorney5. The Court
was able to locate a conflict parent advocate to represent
Father after a brief delay in the proceedings. Father’s
counsel made a request that Father’s portion of the case
be continued. The Court granted this request but
permitted Mother’s case to be presented. CYF Supervisor
Wayne Noel, CYF caseworker Heather Lunn, Mother’s
psychiatrist Dr. Sharon Rector[,] and Mother testified at
the hearing6. Evidence was presented that Mother was
involved in comprehensive mental health treatment at
Turtle Creek Valley MHMR (hereinafter Turtle Creek).
Mother was receiving a wide array of services and had an
entire treatment team. Dr. Rector testified as to some of
the services that Mother was receiving as well as some of
her goals. She was also able to observe an hour long visit
with Mother and the child. The doctor felt comfortable
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opining that Mother was able to care for the child despite
not having any formal training in parent-child bonding or
parenting generally. It was concerning that she could
opine about this so clearly after only observing Mother with
the child for one hour. Strangely enough, Dr. Rector was
unable to provide an explanation as to why she had
changed Mother’s intellectual disability diagnosis several
times7. In fact she was not even sure about Mother’s IQ
score, which is a vital component to determining the level
of an individual’s intellectual disability. Dr. Rector skirted
many questions during cross examination about this very
issue. The Court was in no better position to determine
what Mother’s diagnosis was after Dr. Rector’s testimony.
5
Father failed to provide the requisite financial
information.
6
Mother attended the Achieva evaluations on
January 26th, 2016 and February 1st, 2016 as well
as her AFA evaluation on February 1st, 2016.
7
Despite the fact that she had been treating Mother
since May of 2015.
At the hearing, Mother was candid about her need for
services before the child could return to her home. Mother
lacked basic knowledge regarding Child’s medical needs.
She had taken some basic parenting classes but still
appeared to not fully understand the seriousness of
parenting an infant. She testified that she was not current
on rent and that maternal grandmother was residing in her
home. This was a concern as she was not listed on the
lease and Section 8 prohibits additional occupants not
known to their agency. Maternal Grandmother worked
outside of the home and could not provide around the
clock supervision.
The parties received the Achieva recommendations prior to
the hearing but had only recently received the results of
the AFA evaluation. CYF did not have the opportunity to
implement additional services prior to receiving the report
from the AFA evaluations. Both evaluations recommended
additional services to assist Mother with parenting. The
case lasted a number of hours but ultimately had to be
continued because both Mother and KidsVoice had to
present their cases8. The case was continued two weeks
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and the Court ordered that Mother have as many in home
visits as possible9.
8
The AFA evaluat[or], Dr. Patricia Pepe, was also
unavailable to testify on that date.
9
Mother was posted for services on March 9th, 2016
specifically for assistance in the areas of parenting
skills development, child development and hands on
parenting training. CYF was also able to assess a
maternal aunt but she failed to follow up with the
agency.
The case reconvened on March 11th, 2016 and Father
stipulated to dependency. Mother’s therapist from Turtle
Creek, Karen Moller, foster mother, CYF case supervisor
Autumn Smith, Dr. Patricia Pepe, Achieva representative
Julianne Benzik, and both parents testified at the hearing.
The therapist testified that she had been working with
Mother on a regular basis and that Turtle Creek was able
to address her mental health needs. CYF continued to
work with Mother to address her needs through services
although she had not been accepted for services as of the
date of the hearing. CYF had been working with Mother to
develop a safety plan for eventual return as well as
following up on referrals for intensive services. Mother
was able to have an in-home visit prior to hearing. The
visit went well, but she needed assistance in preparing a
bottle as well as with comforting the child when he cried.
Dr. Pepe provided testimony as to the AFA evaluation of
Mother conducted on February 17th, 2016. She was the
first mental health professional to complete an IQ test of
Mother, which was identified as being 77. Dr. Pepe
diagnosed Mother with Bipolar disorder, depression and
borderline intellectual functioning. It was her opinion that
Mother did not present with moderate intellectual disability
either by way of her IQ score, achievement testing, or
adaptive behavioral functioning testing. It was ultimately
her opinion that Mother did not possess a comprehensive
understanding of the Child’s needs and that she would
benefit from parent education and parent modeling
training. Dr. Pepe opined that a professional
recommendation for services was needed to address
Mother’s level of functioning and parenting capabilities
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prior to implementing services. After considering the
evidence, the Court adjudicated the child dependent and
ordered that he remain in placement. CYF was ordered to
implement the services recommended by the AFA
evaluation and for in-home visits to continue.
Opinion, 5/24/2016, at 1-5 (“1925(a) Op.”). On April 11, 2016, Mother filed
a timely notice of appeal.
Mother raises the following issues on appeal:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
MAKING A FINDING OF FACT THE CYF HAD MADE
REASONABLE EFFORTS TO AVOID REMOVAL WHEN THE
RECORD DOES NOT SUPPORT SUCH A FINDING?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
REFUSING TO RETURN A.R. TO [MOTHER’S] CARE
WITHOUT A RECORD OF CLEAR NECESSITY TO JUSTIFY
THE REMOVAL?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
ALLOWING THE MATTER TO BE DELAYED MONTH AFTER
MONTH WITHOUT ANY CONSIDERATION OF [MOTHER’s]
RIGHT TO THE CARE AND CONTROL OF HER CHILD?
Mother’s Br. at 7.
In dependency cases, this Court reviews a trial court order finding a
child dependent for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190
(Pa. 2010). This Court must “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record.” Id.Mother first argues that the trial court’s finding that CYF made
reasonable efforts to prevent Child’s removal from Mother’s care was
unsupported by the record. Mother maintains CYF determined that services
could not be provided until it knew the issues Mother faced, but did not take
appropriate steps to discern the issues. She notes CYF did not refer Mother
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to Dr. Patricia Pepe for evaluation until approximately 60 days after Child
was removed from Mother’s care. Mother further argues that the record also
does not support the trial court’s conclusion that the records from Turtle
Creek, which included differing intellectual disability diagnoses, justified
CYF’s failure to make reasonable efforts. Mother maintains that, even
without knowing the severity of Mother’s intellectual ability, CYF should have
offered support, such as in-home services.
A trial court must make determinations regarding whether CYF made
reasonable efforts to prevent placement and removal. See 42 Pa.C.S. §§
6332(a), 6351(b).1
____________________________________________
1
Section 6332(a) provides:
An informal hearing shall be held promptly by the court or
master and not later than 72 hours after the child is placed
in detention or shelter care to determine whether his
detention or shelter care is required under section 6325
(relating to detention of child), whether to allow the child
to remain in the home would be contrary to the welfare of
the child and, if the child is alleged to be delinquent,
whether probable cause exists that the child has
committed a delinquent act. . . . If the child is alleged to
be a dependent child, the court or master shall also
determine whether reasonable efforts were made to
prevent such placement or, in the case of an emergency
placement where services were not offered and could not
have prevented the necessity of placement, whether this
level of effort was reasonable due to the emergency nature
of the situation, safety considerations and circumstances of
the family.
42 Pa.C.S. § 6332.
(Footnote Continued Next Page)
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The trial court concluded that:
Mother argues that CYF could have implemented additional
services to prevent or eliminate the need for removal.
However, in-home services are not a cure all. Each case
presents with unique facts and circumstances. This case
was particularly difficult due to the age of the child and
potential safety risk that return presented if Mother was
suffering from a moderate intellectual disability. Rather, it
was a challenge to match a parenting program or a service
provider with Mother based on the wide spectrum of
diagnoses made by Turtle Creek MHMR. Additionally, one
of the most intensive services that CYF often refers,
Achieva, is more appropriate for an individual suffering
from moderate intellectual disability. CYF did refer Mother
for an assessment with Achieva despite the absence of an
IQ score from Turtle Creek’s records. Mother has been
receiving mental health treatment for most of her adult life
at Turtle Creek Valley MHMR. Although the Court believed
Dr. Rector’s testimony to be contradictory and convoluted,
_______________________
(Footnote Continued)
Section 6351 provides:
Prior to entering any order of disposition under subsection
(a) that would remove a dependent child from his home,
the court shall enter findings on the record or in the order
of court as follows:
...
(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).
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it was still satisfied that Mother was receiving some level
of treatment at Turtle Creek. She had the opportunity to
meet with her treatment team multiple times a month to
address her mental health needs.
The team worked on everything from establishing positive
relationships to budgeting. Mother also continued to have
regular visits and attended medical appointments. CYF
also made reasonable efforts to locate both maternal and
paternal relatives as placement options. CYF did make
contact with authorities in Philadelphia to ascertain
whether Father was a viable placement option. Maternal
grandmother was not an option because her mere
presence in the family home jeopardized the one area of
stability that Mother possessed, housing.
...
The Court was not willing to risk the safety of an infant
when it was unclear what services were needed. It is
certainly not the position of the Court that a newborn child
should be removed from his parents care in the excess of
100 days without any services. But that is simply not the
case here. Based upon the disparities between the levels
of functioning, CYF was unable to implement specific
services for Mother. This Court was satisfied that an AFA
evaluation would help CYF to remedy the issues. The AFA
evaluation was the first time that the Court and the parties
were able to determine that Mother was suffering from
borderline intellectual disability. And as such, CYF was
able to develop a plan to address Mother’s specific needs.
The Court acknowledges that it did take time to make
referrals for these evaluations. However, these delays
were not so offensive as to warrant a finding that no
reasonable efforts were made. Mother was receiving
mental health services weekly along with medication
management. She was attending visits and working with
the foster mother to learn more about her child's medical
needs. Throughout the history of the case, Mother has
acknowledged that she needs help in parenting her child.
None of the other family placements were appropriate.
1925(a) Op. at 6-7.
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The trial court’s conclusion that CYF made reasonable efforts is
supported by the record. Further, the trial court did not abuse its discretion
in finding that CYF provided reasonable efforts to Mother or in finding that
CYF was permitted to take time to determine which services would best
assist Mother. The trial court reasoned that Mother’s medical records
provided contradictory information, Mother was receiving assistance through
various services, and Mother was allowed visits with Child.
Mother next contends there was no clear necessity that justified
removal of Child from Mother’s care. She argues that Dr. Rector testified
that Mother was compliant with her treatment and “psychiatrically stable
with caveats.” Mother’s Br. at 24. Mother asserts the trial court erred in not
crediting Dr. Rector’s testimony that Mother and Child had a bond, arguing
that although Dr. Rector spent only an hour with Mother and Child, there
was no testimony as to how long Dr. Pepe spent with Mother. She argues
the trial court misapprehended Dr. Rector’s testimony, noting Dr. Rector
made it clear she was providing an expert opinion that there was no
psychiatric reason Mother could not care for Child, and that she was not
providing an expert opinion as to bonding. Mother further argues that the
trial court did not explain why CYF should not have provided crisis in-home
services.
As discussed above, the trial court did not err in finding CYF made
reasonable efforts to assist Mother. Mother, in effect, is asking this Court to
grant greater weight to the testimony of Dr. Rector than did the trial court.
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However, we are bound by the trial court’s credibility determinations, which
are supported by the record, and we cannot reweigh the evidence. See In
re R.J.T., 9 A.3d at 1190.
Mother’s final claim is that the trial court erred because it allowed the
matter to be delayed without consideration of Mother’s right of care and
control of Child. Mother’s Br. at 27. She argues the case should have
proceeded on January 13, 2016, because Mother was prepared to proceed
and to present Dr. Rector’s testimony.2 Id. She further argues that the
case should have proceeded on February 4, 2016 as to Mother and that the
trial court should not have stopped the February 26, 2016 proceedings at
5:00 p.m., but rather should have continued to hear testimony. Id. at 28.
This Court reviews the trial court’s order granting a continuance for an
abuse of discretion. In re J.K., 825 A.2d 1277, 1280 (Pa.Super. 2003).
“An abuse of discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias, or ill-will.” Id.____________________________________________
2
Mother did not object to the emergency removal or to the December
16, 2015 order granting a continuance.
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(quoting Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1035
(Pa.Super. 2001)).3
The trial court found:
Any delays in the proceedings were not violative of
Mother’s Due Process rights. This Court took into account
the prejudice to all parties and the risks of keeping the
child in foster care. Father also suffered from mental
health issues and requiring him to proceed at an
Adjudicatory Hearing without counsel would have been
egregious. Mother suffered no prejudice from the delay.
Placing the child in foster care was necessary as Mother
was not able to care for the child and no family members
followed procedure to become a placement option.
1925(a) Op. at 7. This was not an abuse of discretion. The trial court
considered the interests of Child, Mother, and Father in granting the
continuance and further noted that additional evidence was required,
particularly as to Mother’s ability to care for Child.
Order affirmed.
____________________________________________
3
Pennsylvania Juvenile Court Rule 1122 provides: “In the interests of
justice, the court may grant a continuance on its own motion or the motion
of any party. On the record, the court shall identify the moving party and
state its reasons for granting or denying the continuance.” Further, the
Pennsylvania Juvenile Act provides in part: “On its motion or that of a party
the court may continue the hearings under this section for a reasonable
period, within the time limitations imposed by this section, to receive reports
and other evidence bearing on the disposition or the need for treatment,
supervision or rehabilitation.” 42 Pa.C.S. § 6341(e).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2016
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