In the Interest of: J.S. Appeal of: G.S.

J-S10029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: G.S., FATHER : No. 2582 EDA 2014
Appeal from the Order Entered July 22, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001440-2014
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2015
Appellant, G.S. (“Father”), appeals from the order entered in the
Philadelphia County Court of Common Pleas, which adjudicated his minor
daughter, J.S. (“Child”), dependent and committed her to the Department of
Human Services (“DHS”). We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. We add only that Father timely filed a notice of appeal and
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) on August 13, 2014.
Father raises six issues for our review:
DID THE COURT ERRONEOUSLY ADJUDICATE CHILD
DEPENDENT?
DID THE COURT ERRONEOUSLY ORDER THAT CHILD BE
PLACED?
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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DID THE COURT ERRONEOUSLY ORDER THAT DHS MAY
CONSENT FOR MEDICATION FOR CHILD WITHOUT
[FATHER’S] PERMISSION?
DID THE COURT ERRONEOUSLY FAIL TO ORDER THAT AN
INTERSTATE COMPACT OCCUR FORTHWITH?
DID THE COURT ERRONEOUSLY ORDER [FATHER] TO
HAVE A PSYCHOLOGICAL OR PSYCHIATRIC EVALUATION?
DID THE COURT ERRONEOUSLY RESTRICT [FATHER’S]
VISITATION WITH HIS CHILD, AS TO HER DISCRETION?
(Father’s Brief at 2).1
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Vincent L.
Johnson, we conclude Father’s first, second, third, and fourth issues merit no
relief. The trial court opinion comprehensively discusses and properly
disposes of those issues. (See Trial Court Opinion, filed September 12,
2014, at 9-12; 17-18; 19-20) (finding: (issues 1 and 2) court heard
testimony from several witnesses and carefully considered all evidence
presented at adjudicatory hearing; testimony revealed that Father’s home
was in deplorable condition and was not appropriate for Child; specifically,
both DHS social worker and Child Advocate social worker testified that
Father’s home was extremely dirty, cluttered, and had repugnant odor; one
social worker could not even complete her inspection of Father’s kitchen
because foul odor was so strong; by Father’s own admission, there were
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1
For purposes of disposition, we have reordered Father’s issues.
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numerous fruit flies in house and litter box had not been cleaned for some
time; additionally, social workers noted flies living in refrigerator among food
available for Child to eat; there were also fire hazards in Father’s house, as
home had no working smoke detectors or fire extinguishers; there was
excessive clutter and debris in house, as well as peeling walls and ceilings;
Father refused to permit social workers to access third floor of home, in clear
violation of court’s order to allow DHS to access entire home; based on
Father’s refusal to let social workers access third floor, whether potentially
unsafe or dangerous conditions exist on third floor remains unknown;
Father’s home has no doors on any rooms in house, which intrudes on
Child’s privacy; DHS social worker testified that paternal grandmother (who
lives with Father and Child) bathes 13-year-old Child, which makes Child
uncomfortable;2 Father said he was unaware paternal grandmother bathes
Child; Father’s family had previous history with DHS regarding similar
allegations of hoarding and deplorable conditions in home; DHS social
worker testified that Father’s home was inappropriate for Child; court found
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2
Father claims the DHS social worker’s testimony about paternal
grandmother bathing Child constituted inadmissible hearsay. Father did not
object to this testimony at the dependency hearing or raise this complaint in
his Rule 1925(a)(2)(i) statement, so it is waived. See In re S.C.B., 990
A.2d 762 (Pa.Super. 2010) (explaining that to preserve issue for appellate
review, party must make timely and specific objection at appropriate stage
of proceedings before trial court; failure to timely object to basic and
fundamental error will result in waiver of issue on appeal); Ramer v.
Ramer, 914 A.2d 894 (Pa.Super. 2006) (stating issues not raised in concise
statement of errors complained of on appeal are waived).
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testimony of DHS’ witnesses credible; court also saw numerous pictures of
Father’s house in which court could see home was deplorable and looked like
burnt-out home; court also heard testimony about Child’s unaddressed
mental health issues; Child has been diagnosed with schizophrenia; DHS
social worker observed Child talking to herself extensively and pacing back
and forth; Father stated Child’s behavior is “normal” for 13-year-old without
mother or siblings; Father admitted he did not follow-up on scheduling
appointment for Child’s mental health evaluation despite informing Child’s
school that he would schedule appointment for Child; court was also
concerned with Father’s mental health, based on DHS social worker’s
interactions with Father and fact that Father had received mental health
services in past and had been hospitalized for mental health treatment;3
based on totality of evidence, DHS presented clear and convincing evidence
that Child lacks proper parental care and control; Child cannot grow and
develop properly in Father’s home; allowing Child to remain in Father’s home
would be contrary to Child’s health, safety, and welfare; thus, court properly
adjudicated Child dependent under 42 Pa.C.S.A. § 6302, and committed her
to DHS; (issue 3) court had authority under 42 Pa.C.S.A. § 6339(b) to
permit DHS to consent to medical care and mental health treatment for
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3
Father contends on appeal that the DHS social worker’s testimony about
Father’s past mental health treatment was based on a lack of foundation and
constituted inadmissible hearsay. Father did not raise these claims in his
concise statement of errors complained of on appeal, so they are waived.
See id.
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Child; in fashioning order, court sought to ensure Child receives appropriate
medical treatment, especially given serious concerns about Child’s mental
health; (issue 4) Child’s maternal grandparents reside in Arkansas; court’s
order adjudicating Child dependent makes clear that DHS must explore
inter-state compact for Arkansas forthwith; thus, Father’s issue is moot4).
Accordingly, with respect to Father’s first, second, third, and fourth issues on
appeal, we affirm on the basis of the trial court’s opinion.
In his fifth issue, Father argues the trial court lacked legal authority to
compel him to submit to a psychological evaluation. Father relies on In re
T.R., 557 Pa. 99, 731 A.2d 1276 (1999) (plurality), which Father claims
stands for the proposition that a trial court cannot compel a parent to submit
to a psychological evaluation over the parent’s objection, based on the
particular parent’s constitutional right to privacy. Father suggests no
genuine distinction exists between the facts in T.R. and the facts of this
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4
Father phrased his fourth issue on appeal in his Rule 1925(a)(2)(i)
statement as follows: “Did the [c]ourt erroneously refuse that an interstate
compact for the child’s maternal grandparents should not occur forthwith?”
(Father’s Rule 1925(a)(2)(i) Statement, filed 8/13/14, at 1). Father’s
complaint on appeal that the court failed to expedite the order for an inter-
state compact, and merely ordered DHS to “explore” the inter-state
compact, is waived based on Father’s vague concise statement. See In re
A.B., 63 A.3d 345 (Pa.Super. 2013) (explaining appellant’s concise
statement must properly specify error to be addressed on appeal; this Court
may find waiver where concise statement is too vague to allow trial court to
identify issues raised on appeal). Moreover, Father cites no law whatsoever
in support of his fourth issue on appeal. See Glynn v. Glynn, 789 A.2d 242(Pa.Super. 2001) (en banc) (holding appellant waived issue where he failed
to develop it in argument and cited no legal authority to support his claim).
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case. Father contends his right to privacy is particularly significant where
Child did not come into DHS’ care based on allegations concerning Father’s
mental health. Father submits DHS did not allege Child was improperly
cared for, but only that Father chose not to take the advice of Child’s school
to have Child evaluated for mental health issues. Father insists the DHS
social worker’s testimony about Father’s “tone” is not indicative of a mental
health concern. Father declares the trial court’s ruling would essentially
allow judges to order parents to undergo psychological evaluations early on
in dependency proceedings merely because the court has suspicions or
arbitrary beliefs that the parent suffers from a mental health issue. Father
complains the court’s directive expressly contravenes the Supreme Court’s
holding in T.R., and this Court should reverse the order compelling him to
submit to a psychological evaluation. We disagree, under the circumstances
of this case.
To begin, in the T.R. case, DHS sought a restraining order when T.R.
was ten months’ old, based on eye injuries T.R. had sustained. T.R.’s
parents were unable to explain the injuries. As well, another child in the
home had suffered similar eye injuries, resulting in blindness. The court
issued a restraining order and continued temporary commitment of T.R.,
who remained in foster care. One year later, the court adjudicated T.R.
dependent, discharged the temporary commitment, and returned T.R. to his
mother’s custody with DHS supervision. At a dependency review hearing
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another year later, evidence showed T.R. had suffered multiple rib fractures
while in his mother’s care. Four children were in the mother’s home, and
the mother claimed two of her other children had caused T.R.’s injuries.
Following the hearing, the trial court ordered the mother to undergo a
psychological evaluation to determine whether she was able to care for her
children. The mother objected, but she underwent the evaluation.
Subsequently, the trial court stayed its order requiring release of the
results of the psychological examination, to allow the mother to appeal the
court’s order directing her to submit to the evaluation. This Court affirmed,
determining the trial court properly exercised its broad discretionary powers
under the Juvenile Act to order the psychological examination. This Court
further held, inter alia, the trial court’s order did not violate the mother’s
constitutional right to privacy because the information was necessary to
carry out the purposes of the Juvenile Act.
On further appeal, the Pennsylvania Supreme Court stated:
Although the right to privacy is of constitutional dimension,
it is not unqualified. Privacy claims must be balanced
against state interests. Our test of whether an individual
may be compelled to disclose private matters…is that
government’s intrusion into a person’s private affairs is
constitutionally justified when the government interest is
significant and there is no alternate reasonable method of
lesser intrusiveness to accomplish the governmental
purpose. More recently, we have stated the test in terms
of whether there is a compelling state interest. In reality,
the two tests are not distinct. There must be both a
compelling, i.e., “significant” state interest and no
alternate reasonable method of lesser intrusiveness.
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* * *
One’s interest in not being forced to disclose such records
is significant. The right to protect one’s beliefs and
thoughts from intrusion by others is…one of the most
comprehensive rights known to civilized [persons]. …
Set against this interest of the mother is the interest of the
state in discovering enough information about the children
and their parents to make intelligent decisions about the
placement of the children. [The] Superior Court’s view is
that the psychological evaluation was the least restrictive
means to obtain information about [the mother’s]
caretaking ability because the other methods of obtaining
such information were either limited or failed to provide
the necessary information.
* * *
We disagree that means less intrusive were not available.
[DHS] argues—correctly—that there was something
terribly wrong with the mother’s ability to parent. The
children continued to be injured even though the
department had attempted to assist the mother in caring
for her children. Further, the department also points out
that its attempts to assist the mother had failed. In
short, even the department agrees that there is an
abundance of information in the case about whether
the children are being cared for properly and
whether the mother is a fit parent.
Id. at 106-08, 731 A.2d at 1280-81 (internal citations and quotation marks
omitted) (emphasis added). “[W]here…there is an abundance of information
about the ability of the parent to be a parent, there is no state interest,
much less a compelling state interest, in the ordering of parental
psychological examinations.” Id. at 108, 731 A.2d at 1281. Therefore, the
Supreme Court in T.R. reversed the order instructing the mother to submit
to a psychological evaluation. Id. See also In re D.S., 102 A.3d 486-8-
J-S10029-15
(Pa.Super. 2014) (reversing trial court’s order directing father to undergo
psychiatric evaluation; explaining that, while there remains no absolute bar
to ordering psychiatric evaluation, trial court’s order was not least invasive
means of achieving its goal; concluding there was no compelling state
interest in ordering evaluation, where there were no specific allegations
or evidence of record that father had any particular mental health
deficiencies); In re J.Y., 754 A.2d 5 (Pa.Super. 2000), appeal denied, 564
Pa. 712, 764 A.2d 1070 (2000) (explaining T.R. stands for proposition that
court may not, under certain circumstances, invade individual’s privacy
rights by ordering psychological evaluation and revealing its results); In re
K.D., 744 A.2d 760, 761 (Pa.Super. 1999) (holding best interests of children
could be maintained without compelling mother to submit to psychological
evaluation, under circumstances of case; record reveals noticeable lack of
support for subjecting mother to psychological evaluation; mere allegation
that mother has been taking medication for mental condition and passed out
once as result of medication, is insufficient to warrant psychological
evaluation).
Instantly, at the conclusion of the dependency hearing, the trial court
ordered Father to undergo a psychological evaluation. Although Father
relies heavily on T.R. to support his position that the court lacked authority
to order Father to submit to a psychological evaluation, we recognize T.R. is
a plurality opinion, which is not precedential. See In re C.B., 861 A.2d 287-9-
J-S10029-15
(Pa.Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005)
(explaining decision that does not command majority of votes is non-
precedential plurality decision). In any event, the T.R. trial court had the
benefit of more than two years’ observation of the mother’s ability to parent,
from the time DHS sought a restraining order in April 1992, until the time
the court ordered the mother to undergo a psychological evaluation in April
1994. See T.R., supra. Here, however, DHS filed the dependency petition
on or about June 18, 2014;5 approximately one month later on July 22,
2014, the court adjudicated Child dependent and ordered Father to submit
to a psychological evaluation. The testimony at the shelter care hearing and
the dependency hearing focused primarily on the deplorable conditions in
Father’s home and in paternal aunt’s home, which the court deemed unfit for
Child. Unlike the facts at issue in T.R., the record before us does not
contain an abundance of information about Father’s ability to parent
Child. (See Trial Court Opinion at 15) (explaining there is not “abundance of
information” known about Father because case just began, in contrast with
facts of T.R.).
Additionally, nothing in T.R. suggested the mother or T.R. suffered
from diagnosed mental health issues. See T.R., supra. In the present
case, DHS representative Tasha Hannah testified at the shelter care hearing
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5
DHS received a general protective services report on April 15, 2014,
concerning Child’s hygiene and potential mental health issues.
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that she was concerned about Child’s mental health based on her
observations of Child. At the conclusion of the shelter care hearing, the
court ordered Child to undergo a mental health evaluation. At the
dependency hearing on July 22, 2014, the court heard testimony from DHS
social worker Tina Williams-Mitchum on the results of Child’s mental health
evaluation. Ms. Williams-Mitchum reported Child was diagnosed with
schizophrenia. Ms. Williams-Mitchum also expressed concerns regarding
Father’s mental health, based on the flat tone with which Father responded
to questions and reports indicating Father had previously received mental
health services and was hospitalized for mental health treatment.6
During Father’s testimony at the dependency hearing, Father stated
Child is “gifted,” and earned high grades in the A-/B+ range until recently.
Father said he was unaware Child had any mental health issues. In
response to questions concerning Child talking to herself, Father stated he
encouraged Child to be creative and use her imagination. Father believed
Child was simply entertaining herself when she talked to herself by acting
out plays aloud. Father did not perceive Child’s actions as unusual, given
Child’s mother is deceased and Child has no siblings. When Child’s school
recommended a psychological evaluation for Child, Father said he would
make an appointment for Child with her primary physician and obtain a
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6
Ms. Williams-Mitchum did not elaborate on the content of the reports and
the reports are not included in the certified record.
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referral for a specialist, which Father then failed to do. Father claimed he
had no mental health issues which would impede his ability to care for
Child.7 Notwithstanding his testimony, the trial court expressed concerns
about Father’s mental health. (See Trial Court Opinion at 13) (stating:
“Further, Father testified at the adjudicatory hearing, so the [c]ourt
observed Father first-hand and had concerns about Father’s mental
health”).8 Thus, T.R. is distinguishable from the present case. Compare
T.R, supra; In re D.S., supra; In re K.D., supra.Moreover, the Commonwealth’s interest in the proper placement of
Child is an important and compelling interest that can outweigh Father’s
right to privacy. See Matter of Adoption of Embick, 506 A.2d 455(Pa.Super. 1986), appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987)
(recognizing constitutional analysis involves balancing of competing
interests; state’s interest in proper placement of children, as well as interest
in keeping families intact whenever possible, is important and compelling
interest that can outweigh individual’s right to privacy). See also In
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7
The court found the testimony of DHS’ witnesses credible; the court found
Father’s testimony largely incredible. (See Trial Court Opinion at 7-8.) See
also In re E.B., 898 A.2d 1108 (Pa.Super. 2006) (explaining that on review
in dependency cases, this Court affords great weight to trial court because it
is in position to observe and rule upon credibility of witnesses and parties
who appear before it; this Court will not overrule trial court’s findings if they
are supported by competent evidence).
8
The trial court also noted that Child’s mother had committed suicide
approximately ten years ago. (See id. at 1.)
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Interest of Bender, 531 A.2d 504 (Pa.Super. 1987) (recognizing there are
certain instances where statutory privileges must yield to disclosure of
communication; where court is concerned with whether child is presently
without proper parental care and, if so, whether that care is immediately
available, we must hold that injury that would inure to relationship by
disclosure of protected communication is not greater than benefit gained for
correct disposition of significant issues at play in dependency proceedings).
Based on the lack of evidence of record concerning Father’s ability to
parent Child, and the testimony at the shelter care and dependency hearings
regarding both Child and Father’s mental health issues, the trial court’s
order directing Father to submit to a psychological evaluation was the least
restrictive means to obtain information about Father’s parenting ability
under the circumstances of this case. Here, Pennsylvania’s interest in
providing for the safety and welfare of Child, who has been adjudicated
dependent and who has serious mental health issues, outweighs Father’s
privacy interest under these facts. See id.; Embick, supra. See also In
re Davis, 502 Pa. 110, 112, 465 A.2d 614, 620 (1983) (stating: “It should
be obvious that in rendering the disposition best suited to the protection and
physical, mental and moral welfare of [a dependent] child, the hearing court
and the reviewing court must take into account any and all factors which
bear upon the child’s welfare and which can aid the court’s necessarily
imprecise prediction about that child’s future well-being”) (internal quotation
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marks omitted) (emphasis in original). The trial court can certainly review in
camera the results of Father’s psychological evaluation, limit disclosure of
the results, and keep the record sealed, to preserve Father’s privacy. See
T.R., supra (Newman, J., dissenting) (suggesting in camera review of
mother’s psychological evaluation and disclosure of results to only parties of
interest; by requiring in camera review by ultimate arbiter, Commonwealth
can achieve its interest in making informed custody placement without
disclosure of private information). Thus, Father’s fifth issue merits no relief.
In his sixth issue, Father asserts the current goal in this case is
reunification, so the court cannot deny him visitation with Child, unless
visitation will pose a grave threat to Child. Father acknowledges he was not
denied visitation with Child outright, but Father insists the court’s order
providing for visitation at Child’s discretion is tantamount to denying Father
visitation. Father contends the court lacked justification for its order. Father
submits the court should have let Child testify in camera to discern the
reasons for Child’s decision not to visit with Father, or ordered
therapeutic/supervised visits, to address Child’s concerns. Father
emphasizes Child did not testify at the dependency hearing. 9 Father claims
DHS presented no evidence that Father poses a danger to Child. Father
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9
The First Home Care caseworker testified that Child did not wish to visit
with Father. On appeal, Father claims the caseworker’s testimony
constituted hearsay. Father did not present this issue in his Rule
1925(a)(2)(i) statement, so it is waived. See Ramer, supra.- 14 -
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suggests someone might have coached Child to say she does not want to
see Father. Father concludes the court’s restriction on Father’s visitation
with Child was erroneous. We disagree.
In dependency cases, the standard to measure visitation depends on
the goal mandated in the family service plan. In re C.B., supra at 293.
“Where reunification still remains the goal of the family service plan,
visitation will not be denied or reduced unless it poses a grave threat. If the
goal is no longer reunification of the family, then visitation may be limited or
denied if it is in the best interests of the child….” Id. (quoting In re B.G.,
774 A.2d 757, 760 (Pa.Super. 2001)).
The “grave threat” standard is met when the evidence
clearly shows that a parent is unfit to associate with
his…children; the parent can then be denied the right to
see them. This standard is satisfied when the parent
demonstrates a severe mental or moral deficiency that
constitutes a grave threat to the child.
In re C.B., supra at 294 (internal citations and some quotation marks
omitted). Nevertheless, “[i]n rare instances, we have approved restricting
or temporarily suspending visitation even though there has been no
showing of such severe mental or moral deficiencies in the parent as would
constitute a grave threat to the child’s welfare.” In re Damon B., 460 A.2d
1196, 1198 (Pa.Super. 1983) (emphasis in original) (holding reduction of
mother’s visitation rights was appropriate, even absent showing of mother’s
severe mental or moral deficiencies which would constitute grave threat to
child’s welfare, where visits were counterproductive and child experienced
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severe stress during visits; reduction of visitation was temporary and limited
in time, where court scheduled review hearing within next seven months).10
Instantly, the trial court did not outright deny Father visitation with
Child. The court allowed visitation to occur if Child chooses; if Child wants to
visit with Father, the trial court ordered supervised/therapeutic visits to
occur at DHS. Specifically, the trial court stated at the conclusion of the
dependency hearing that it would wait to receive a report from Child’s
psychologist to decide whether visitation with Father is in Child’s best
interests. The court temporarily gave Child the choice regarding visitation
until the court received and reviewed the report from Child’s psychologist.
The trial court explained its rationale as follows:
Here, the Child is thirteen years old and has chosen not to
have any visitation with her Father. Although the wishes
of a child are not controlling, they certainly constitute an
important factor for the [c]ourt to consider in deciding
what the appropriate visitation arrangement should be.
The [c]ourt will not compel a thirteen-year old child to visit
her father if she does not want to, given the circumstances
of this case and the absence of any recommendation by a
therapist. The [c]ourt referred the Child to obtain mental
health treatment so presumably any issues regarding the
Child’s desire to visit with her Father will be addressed in
her treatment. Indeed, the [c]ourt specifically stated
that it wanted to hear from the Child’s therapist in a
written report regarding visitation with Father.
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10
In Damon B., the trial court improperly applied the “best interest”
standard instead of the “grave threat” standard. This Court concluded the
best interest standard was inappropriate; nevertheless, this Court explained
the trial court’s error did not require reversal of the order reducing visitation
because the Superior Court can affirm the trial court’s ruling on any basis.
See id.- 16 -
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Based on the foregoing, the [c]ourt properly found
that visitation with Father was at the Child’s
discretion at the present time.
(Trial Court Opinion at 17) (emphasis added).
The trial court did not expressly state it had applied either the “best
interest” or the “grave threat” standard. In any event, the court’s visitation
decision is temporary. The court permitted visitation to occur at Child’s
choice until the court receives a report from Child’s psychologist, at which
time the court can make an appropriate decision concerning parent-child
visitation. See In re Damon B., supra. Given Child’s diagnosis of
schizophrenia, Child’s present choice not to visit with Father, Father’s
potential mental health issues, and the temporary nature of the trial court’s
order of visitation, the order was appropriate.11 Thus, Father’s sixth issue
merits no relief. Accordingly, we affirm.
Order affirmed.
Judge Platt joins this memorandum.
Judge Stabile files a concurring and dissenting memorandum.
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11
If, after reviewing the report from Child’s psychologist, the trial court
decides to cease visitation or to continue visitation at Child’s discretion on a
long-term basis, then the court must apply the grave threat standard. See
id. at 1198 n.1 (stating: “Our decision in this case is influenced by the fact
that this is a temporary reduction in visits rather than a long-term cessation
of visits. In the latter case, of course, the trial court must find, by clear and
convincing evidence, that visitation poses a grave threat to the child”)
(emphasis in original).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2015
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