In the Interest of: J.M., a Minor

J-S51001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.F.M., FATHER : No. 3249 EDA 2014
Appeal from the Order October 23, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000669-2012
IN THE INTEREST OF: K.H.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.F.M., FATHER : No. 3250 EDA 2014
Appeal from the Order October 23, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000675-2012
IN THE INTEREST OF: A.H.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.F.M., FATHER : No. 3251 EDA 2014
Appeal from the Order October 23, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000676-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2015
Appellant, A.F.M. (“Father”) appeals from the orders entered in the
Philadelphia County Court of Common Pleas, Family Court Division, which
found aggravated circumstances existed and reasonable efforts were no
longer required of the Department of Human Services (“DHS”) to reunify
_________________________
*Retired Senior Judge assigned to the Superior Court.
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Father and J.M., K.H.M., and A.H.M. (“Children”). We affirm in part and
vacate in part.
The trial court fully set forth the relevant facts and procedural history
of this case in its opinion filed March 24, 2015. Therefore, we have no need
to restate them at length; but we will summarize them briefly. Most
recently, since the spring of 2012, DHS has been involved with this family,
based on reports of Father’s excessive and inappropriate discipline toward
Children and their failure to thrive. Each child suffered varied expressions of
Father’s severe discipline and severe physical and emotional consequences
as a result of his systematic starvation of Children. Consequently, Children
were placed under protective orders, followed by findings of dependency and
commitment to DHS’ custody. The court initially permitted supervised visits
with Father, except for J.M., whose visits with Father were suspended.
Throughout 2012, the court held regular permanency review hearings, after
which the court continued Father’s supervised visits with Children, except for
J.M. Visits with J.M. remained at the discretion of J.M.’s therapist.
The instant proceedings began with child advocate petitions, filed on
February 5, 2013, for a finding of “aggravated circumstances” and child
abuse against Father relative to all three children. On November 13, 2013,
the child advocate filed amended petitions for a finding of aggravated
circumstances and child abuse against Mother as well. The hearing on these
petitions was scheduled and rescheduled throughout the end of 2013 and
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into 2014, based on appointment of new counsel, court schedules, and/or
counsel’s schedules. The hearings eventually occurred on July 7, 2014,
September 8, 2014, October 1, 2014, October 15, 2014, and October 23,
2014.1 At the October 23, 2014 hearing, the court found “aggravated
circumstances” existed as to Father relative to all three Children and allowed
DHS to discontinue reasonable efforts to reunify Father and Children. The
court suspended Father’s visits with J.M. and K.H.M. The court scheduled a
hearing for December 1, 2014, to continue the permanency testimony for
A.H.M. and decide visitation issues regarding Father and A.H.M. 2 Meanwhile,
Father timely filed notices of appeal from the court’s October 23, 2014
orders on Monday November 24, 2014, accompanied by a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).3
1
At the start of the October 15, 2014 hearing, the child advocate withdrew
the petition for aggravated circumstances/child abuse against Father
regarding J.M. At the start of the October 23, 2014 hearing, the parties
argued that, despite the child advocate’s withdrawal of the petition for
aggravated circumstances against Father regarding J.M., the court could still
find aggravated circumstances as to J.M. if the court found aggravated
circumstances against Father as to A.H.M. and/or K.H.M., because a finding
as to one child applies to all other children. Father’s counsel objected,
stating a new motion must be filed against Father regarding J.M. on the
basis of the sibling finding. The court overruled the objection.
2
The permanency hearing for A.H.M. ultimately concluded on January 15,
2015. The court suspended Father’s visits with A.H.M. until further notice.
Father filed an appeal from that order, docketed at No. 624 EDA 2015. By
order dated July 2, 2015, the appeal at No. 624 EDA 2015 was dismissed for
failure to file a brief.
3
Notwithstanding the initial appeal filing date, these consolidated appeals
were not listed for disposition due to the delay in transmittal of the certified
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On appeal, Father raises the following issues:
WAS FATHER DENIED A FAIR HEARING AND DUE PROCESS
BY THE TRIAL COURT’S REFUSAL TO PERMIT FATHER TO
TESTIFY?
DID THE [TRIAL] COURT ERR IN FINDING AGGRAVATED
CIRCUMSTANCES AS TO J.M. AS THE CHILD ADVOCATE
HAD WITHDRAWN [HER] PETITION AS SUCH THE COURT
MADE A DECISION ON A CHILD IN WHICH THERE WAS NO
PETITION BEFORE THE COURT?
DID THE [TRIAL] COURT ERR IN DETERMINING THAT
AGGRAVATED CIRCUMSTANCES EXIST AGAINST FATHER
AS DHS FAILED TO PROVE THE CIRCUMSTANCES BY
“CLEAR AND CONVINCING EVIDENCE” THAT FATHER
EITHER DIRECTLY OR BY NEGLECT CAUSED THE CHILD’S
INJURIES AS REQUIRED BY 42 PA.C.S.A. § 6341(C.1) AND
42 PA.C.S.A. § 6302.
DID THE [TRIAL] COURT ERR IN DENYING FATHER
VISITATION OF J.M. AND K.H.M.
(Father’s Brief at 4).
The applicable scope and standard of review for dependency cases is
as follows:
The standard of review which this Court employs in cases
of dependency is broad. However, the scope of review is
limited in a fundamental manner by our inability to nullify
record to this Court. The certified record was first due by December 24,
2014. On January 8, 2015, this Court contacted the trial court and
repeatedly requested the certified record and the court’s opinion. This Court
finally received both the certified record and the opinion on March 26, 2015,
causing the briefing schedule to be deferred by three months. Further
Father sought another thirty days in extensions of time to file a brief.
Appellees also sought and were granted short extensions of time to file
briefs, which were all filed by June 29, 2015. See In re T.S.M., 620 Pa.
602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for
unexplained delays in disposition of cases involving at-risk children,
causing them to remain in stasis for substantial, unnecessary time).
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the fact-finding of the lower court. We accord great weight
to this function of the hearing judge because he is in the
position to observe and rule upon the credibility of the
witnesses and the parties who appear before him. Relying
upon his unique posture, we will not overrule his findings if
they are supported by competent evidence.
In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000) (citations omitted). See
also In re L.Z., ___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating
standard of review in dependency cases requires appellate court to accept
trial court’s findings of fact and credibility determinations if record supports
them, but appellate court is not required to accept the trial court’s inferences
or conclusions of law); In re D.P., 972 A.2d 1221, 1225 (Pa.Super. 2009),
appeal denied, 601 Pa. 702, 973 A.2d 1007 (3009) (stating applicable
standard of review in dependency cases is “abuse of discretion”). Further, in
placement and custody cases involving dependent children:
The trial court, not the appellate court, is charged with the
responsibilities of evaluating credibility of the witnesses
and resolving any conflicts in the testimony. In carrying
out these responsibilities, the trial court is free to believe
all, part, or none of the evidence. When the trial court’s
findings are supported by competent evidence of record,
we will affirm even if the record could also support an
opposite result.
In re S.G., 922 A.2d 943, 947 (Pa.Super. 2007). The Pennsylvania Juvenile
Act,4 which was amended in 1998 to conform to the federal Adoption and
Safe Families Act (“ASFA”),5 controls issues pertaining to the custody and
4
42 Pa.C.S.A. §§ 6301-6365.
5
42 U.S.C. § 671 et seq.
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placement of dependent children. Id. “The policy underlying these statutes
is to prevent children from languishing indefinitely in foster care, with its
inherent lack of permanency, normalcy, and long-term parental
commitment. Consistent with this underlying policy, the 1998 amendments
to the Juvenile Act, as required by the ASFA, place the focus of dependency
proceedings, including change of goal proceedings, on the child.” Id. In
other words, these Acts equally emphasize the best interests of the child is
at the heart of the court proceedings; although the reunification of children
placed in foster care with their natural parents is a primary goal, the ASFA
“was designed to curb an inappropriate focus on protecting the rights of
parents when there is a risk of subjecting children to long term foster care or
returning them to abusive families.” In re C.B., 861 A.2d 287, 295
(Pa.Super. 2004).
Both statutes are compatible pieces of legislation seeking
to benefit the best interest of the child, not the parent.
There is no denying that ASFA promotes the reunification
of foster care children with their natural parents when
feasible, but the one notable exception to the goal of
reunification is where aggravated circumstances are extant
in the home, which encompasses abandonment, torture,
and/or abuse of a chronic or sexual nature:
(D) reasonable efforts … shall not be required to be
made with respect to a parent of a child if a court of
competent jurisdiction has determined that—
(i) the parent has subjected the child to
aggravated circumstances (as defined in State
law, which definition may include but need not
be limited to abandonment, torture, chronic
abuse, and sexual abuse)[.]
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42 U.S.C. § 671(a)(15)(D)(i). In like fashion,
Pennsylvania’s Juvenile Act focuses upon reunification of
the family, which means that the unity of the family shall
be preserved “whenever possible.” 42 Pa.C.S.A. §
6301(b)(1). However, as with ASFA, all family
reunification may cease in the presence of a finding of
aggravated circumstances…:
(c.1) Aggravated circumstances.—If the county
agency or the child’s attorney alleges the existence
of aggravated circumstances and the court
determines that the child is dependent, the court
shall also determine if aggravated circumstances
exist. If the court finds from clear and convincing
evidence that aggravated circumstances exist, the
court shall determine whether or not reasonable
efforts to prevent or eliminate the need for removing
the child from the home or to preserve and reunify
the family shall be made or continue to be made and
schedule a dispositional hearing as required by
section [6351(e)(3)] (relating to disposition of
dependent child).
42 Pa.C.S.A. § 6341(c.1).
In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009), appeal denied, 603 Pa.
710, 985 A.2d 220 (2009). “Safety, permanency, and the well-being of the
child must take precedence over all other considerations, including the rights
of the parents.” Id.
Our Juvenile Act defines “Aggravated circumstances” as including the
following circumstances:
§ 6302. Definitions
“Aggravated circumstances.” Any of the following
circumstances:
* * *
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(2) The child or another child of the parent has been the
victim of physical abuse resulting in serious bodily injury,
sexual violence or aggravated physical neglect by the
parent.
42 Pa.C.S.A. § 6302(2). The definition of “child abuse” in effect at the time
of these cases included:
§ 6303. Definitions
(b) Child abuse.─
(iv) Serious physical neglect by a perpetrator
constituting prolonged or repeated lack of supervision
or the failure to provide essentials of life, including
adequate medical care, which endangers a child’s life or
development or impairs the child’s functioning.
23 Pa.C.S.A. § 6303(b)(iv). “Aggravated physical neglect” means “[a]ny
omission in the care of the child which results in a life-threatening condition
or seriously impairs the child’s functioning.” 42 Pa.C.S.A. § 6302. Section
6334 of the Juvenile Act addresses petitions alleging aggravated
circumstances in pertinent part as follows:
§ 6334. Petition
* * *
(b) Aggravated circumstances─
(1) An allegation that aggravated circumstances exist
may be brought:
(i) in a petition for dependency with regard to a
child who is alleged to be a dependent child; or
(ii) in a petition for a permanency hearing with
regard to a child who had been determined to be a
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dependent child.
(2) The existence of aggravated circumstances may
be alleged by the county agency or the child’s attorney.
…
(3) A petition for dependency or a permanency
hearing that alleges aggravated circumstances shall
include a statement of the facts the…child’s attorney
intends to prove to support the allegation. …
42 Pa.C.S.A. § 6334(b). Section 6351 of the Juvenile Act governs the
disposition of the dependent child. 42 Pa.C.S.A. § 6351.
In dependency cases, the standard to measure visitation depends on
the goal mandated in the family service plan. In re C.B., 861 A.2d 287,
293 (Pa.Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005).
“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…children.” 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).
Finally, “The general rule is that a court may, in its discretion, reopen
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the case…for the taking of additional testimony, but such matters are
peculiarly within the sound discretion of the trial court….” Colonna v.
Colonna, 791 A.2d 353, 356-57 (Pa.Super. 2001), appeal denied, 569 Pa.
690, 803 A.2d 732 (2002) (quoting In re J.E.F., 487 Pa. 455, 458, 409 A.2d
1166 (1979)).
Such a ruling will be disturbed only if the court has abused
its discretion.
In determining whether there has been an abuse of
discretion in denying a motion to reopen a case for further
evidence, it is logical to review those factors which a court
should consider when confronted with such a motion.
This Court has previously found it proper to reopen a case
to allow the introduction of additional evidence where the
evidence has been omitted by accident, inadvertence, or
even because of mistake as to its necessity…but not where
the omission was intentional…. We have also stated that a
case may be reopened where it is desirable that further
testimony be taken in the interest of a more accurate
adjudication…and where an honest purpose would be justly
served without unfair disadvantage….
Id. at 458-59, 409 A.2d at 1166 (internal citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph
Fernandes, we conclude Father’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed March 24, 2015, at 1-18)
(finding: (1) Father testified at September 8, 2014 hearing; given scheduling
and coordination difficulties, Father knew he had to testify at October 15,
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2014 hearing, at specific time and date certain, but he intentionally left
courthouse and did not return until 45 minutes after hearing was scheduled
and after closing arguments; based on Father’s September 8, 2014
testimony, Father’s proposed additional testimony would have been
cumulative; court had sufficient evidence to reach decision on aggravated
circumstances; (2) court asks us to vacate its decision against Father on
aggravated circumstances/no reasonable efforts regarding J.M., solely
because child advocate withdrew that petition; (3) evidence was sufficient to
support aggravated circumstances and child abuse against Father as to
K.H.M. and A.H.M, based on Father’s excessive discipline and systematic
neglect of Children’s basic caloric needs and resulting obvious health
problems, which resolved following removal from home and normal diet; (4)
based on competent, credible testimony, court continued suspension of
Father’s visitation with J.M. because his heinous and repugnant actions
toward J.M. posed grave threat to health, safety, and welfare of J.M.;
K.H.M.’s visits with Father have hindered her progress in therapy; K.H.M. is
so afraid of Father that she cannot disclose her fears in therapy because she
is afraid Father will kill her with gun if she shares what happens during visits
with Father; K.H.M. needs to feel physically and emotionally safe so she can
heal from trauma she suffered at Father’s hand; Father posed grave threat
to health, safety, and welfare of K.H.M.; based on competent, credible
testimony, court suspended Father’s visitation with K.H.M.).
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With respect to Father’s complaint about reopening the record, under
the circumstances of this matter, we conclude the court properly found that
the proposed additional evidence from Father would not have led to a more
accurate adjudication and its absence had no problematic effect on the
result. See In re J.E.F., supra. Further, the record supports the court’s
decisions on aggravated circumstances against Father with respect to
K.H.M., and A.H.M. The record also supports the court’s findings as to J.M.
Nevertheless, based solely on the child advocate’s withdrawal of the petition
for a finding of aggravated circumstances/child abuse regarding J.M., and in
accord with the trial court’s request, we vacate the court’s finding of
aggravated circumstances against Father as to J.M. only. We affirm the
court’s orders in all other respects, based on the trial court’s opinion.
Orders affirmed in part and vacated in part. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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