In the Int. of: K.C., Appeal of: F.B.

J-S35003-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.C., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: F.B., MOTHER : No. 489 EDA 2019
Appeal from the Order Entered January 22, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002632-2018
IN THE INTEREST OF: K.C., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: F.B., MOTHER : No. 490 EDA 2019
Appeal from the Order Entered January 22, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002633-2018
IN THE INTEREST OF: I.C., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: F.B., MOTHER : No. 491 EDA 2019
Appeal from the Order Entered January 22, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002634-2018
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED OCTOBER 29, 2019
I agree with the Majority that the trial court did not err by adjudicating
Children dependent and granting legal and physical custody of Children to
Father. However, I disagree with two aspects of the Majority memorandum,
and offer the following analysis.
*Retired Senior Judge assigned to the Superior Court.
J-S35003-19
First, with respect to the consideration of hearsay testimony, at issue
is Ms. Tyrell’s testimony about a December 10, 2018 report, where it was
alleged that Mother hit Kb.C. with a cup. Counsel for Mother objected to this
testimony as hearsay, and the trial court overruled that objection. The
Majority declines to address the issue of whether the trial court improperly
considered this testimony as substantive evidence, and concludes that even
if this testimony were hearsay, Mother was not prejudiced.
I would conclude that this testimony was indeed hearsay, and that the
trial court erred by considering it as substantive evidence. However, I agree
with the Majority that Mother was not prejudiced.
On appeal, it is Mother’s position that the trial court erred by
overruling her objections, and permitting Ms. Tyrell to testify about a child
abuse report alleging that Mother had struck Kb.C. with a cup. Mother’s Brief
at 16. Hearsay is an “out-of-court statement offered to prove the truth of
the matter asserted.” Pa.R.E. 801(comment). This report was clearly an
out-of-court statement, and a review of the trial court’s opinion reveals that
the trial court utilized this evidence in support of its conclusion that Mother
abused Child. See Trial Court Opinion, 3/15/2019, at 16 (relying on several
pieces of evidence, including “the concerns identified in the Report of
12/10/2018, which alleged Mother had struck the Child with a cup.”). In
other words, the trial court considered this incident as substantive evidence
of child abuse.
-2-
J-S35003-19
Nevertheless, I agree with the Majority that the admission of this
hearsay did not prejudice Mother. The trial court had ample other non-
hearsay evidence to establish child abuse by clear and convincing evidence.
See id. Therefore, the trial court’s consideration of this testimony was not
reversible error, and I agree with the Majority that Mother is not entitled to
relief on this issue.
I now consider whether the trial court erred by suspending Children’s
visitation with Mother. According to Mother, DHS did not establish that visits
with Mother would result in “grave harm” to the Children. Mother’s Brief at
15-16.
Our standard of reviewing a juvenile court’s visitation order
depends on the child’s goal. When reunification is contemplated,
a juvenile court cannot deny or reduce visitation absent a “grave
threat” to the dependent child. This standard underscores the
importance of each parent’s maintaining a meaningful and
sustaining relationship with the child. In contrast, when the goal
is an alternative to reunification, the juvenile court may limit or
deny visitation as long as the reduction satisfies the best interest
of the child. This alternative standard recognizes that when
reunification is unlikely, the parent-child relationship is no longer
paramount. We have indicated that “The ‘best interests’
standard, in this context, is less protective of parents’ visitation
rights than the ‘grave threat’ standard.” In re L.V., 127 A.3d
831 (Pa. Super. 2015).
In Interest of L.T., 158 A.3d 1266, 1283 (Pa. Super. 2017) (some citations
and internal quotation marks omitted).
Instantly, there is no dispute that the goal for Children is “return to
parent or guardian.” See Order (Kb.C.), 1/22/2019; Order (Ky.C.),
-3-
J-S35003-19
1/22/2019; Order (I.C.), 1/22/2019. Thus, the trial court was required to
utilize the grave-threat standard in assessing visitation.
It is evident that the trial court was, at a minimum, confused with
respect to the aforementioned standard. After Mother’s courtroom outburst,
the trial court stated, “visitation would not be in the best interest of
[C]hildren at this point.” N.T., 1/22/2019, at 37. In addition, in the orders
adjudicating Children dependent, the trial court specifically stated that
“[v]isitation with Mother is not in the Child’s best interest.” Order (Kb.C.),
1/22/2019; Order (Ky.C.), 1/22/2019; Order (I.C.), 1/22/2019. However, in
its later-filed opinion, the trial court recognizes that the proper standard to
consider is the aforementioned grave-threat standard. Trial Court Opinion,
3/15/2019, at 13. However, in that same opinion, the trial court concludes
that “not allowing any contact between Mother and the Children was in the
best interest of the Children.” Id. at 19.
In order for the trial court not to order visitation, the trial court had to
determine that Mother met the grave-threat standard.
The “grave threat” standard is met when the evidence clearly
shows that a parent is unfit to associate with his or her 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., 861 A.2d 287, 293–94 (Pa. Super. 2004) (some citations and
internal quotation marks omitted).
-4-
J-S35003-19
Our review of the trial court opinion does not reveal any analysis with
respect to this standard, nor does the trial court discuss how Mother has
demonstrated “a severe mental or moral deficiency.” Id. To the extent the
trial court was concerned about Mother’s admission that she may cause
harm to Children in the future, the trial court does not explain how
supervised visitation, with appropriate security measures, would not
alleviate that legitimate concern. See In re Mary Kathryn T., 629 A.2d
988, 995 (Pa. Super. 1993) (“Unless the state demonstrates with clear and
convincing evidence that even supervised visitation would severely endanger
the child, the court must deny the complete foreclosure of parental visitation
as being contrary to the Act’s goal of family preservation.”).
At this juncture, Mother’s goal is reunification with Children. By
considering the wrong standard and suspending visitation, the trial court
erred. This error may well result in much more than the denial of a visit or
series of visits. It ultimately can affect a custody determination or even the
termination of parental rights. A parent denied any visitation can be “behind
the eight ball” for a child’s entire minority. Accordingly, I would remand this
case to the trial court to order supervised visitation.
-5-