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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA 1015 MAR 24 Pl'i 2: 51
FAMILY COURT DIVISION
pROPROTHY
In Re: A.H.M. : CP-51-DP-0000676-2012
K.H.M. : CP-51-DP-0000675-2012
J.M. : CP-51-DP-0000669-2012
APPEAL OF: A.F.M., Father : 3249, 3250, 3251 EDA 2014
OPINION
Fernandes,J.:
Appellant, A.F.M. ("Father"), appeals from the order entered on October 23, 2014, finding that
aggravated circumstances existed and reasonable efforts need not be made by the Department of
Human Services to reunify J.M. ("Child · 1 "), K.H.M. ("Child 2"), and A.H.M. ("Child 3 ")
(collectively "Children") with their Father ("DHS") pursuant to 42 Pa.C.S. § 6302. Maureen F.
Pie, Esquire, counsel for Father, filed a notice of appeal with a Statement of Errors Complained
Of pursuant to Rule 1925 (b).
Factualand ProceduralBackground
In 2011, DHS received an allegation that Child 1, born on December 2005; Child 2, born on
/(~7t' 2009; and Child 3, born on A~ri.L 2008, were underweight. As a consequence, DHS
implemented a Rapid Service Response Initiative ("RSRI") that the family completed successfully.
On April 1.8, 2012, Mother visited Dr. Nasira Majid's office. Dr. Majid found Child 2 with a
distended stomach and without regular bowel movements, and instructed Mother to take Child 2
to the emergency room. A Child Protective Service ("CPS") report received by DHS on April 18,
2012, alleged that Mother took Children to St Christopher Hospital ("SCHC") and Child 2 was
admitted into the hospital. The report also alleged that the three siblings were exclusively in
Father's care from 9:00 am to 2:00 pm, that Father refused to provide food to the Children, that
Father abused his family, and that Child 1 was home schooled and weighed twenty-two pounds.
On April 19, 2012, DHS learned that Child 3 was also admitted into SCHC due to failure to thrive.
On the same date DHS spoke with Child 1. Child told DHS that she was fearful of her Father, that
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she did not want to return to her family home, that Father used a belt on numerous occasions to hit
her body, that she was forced to stand in a comer for long periods oftime and that every morning
she was not permitted to eat break.fast until she read 20 pages of a text. Child also mentioned that
if her Mother put extra food in Children's plates, Father would discard the food. On April 19,
2012, Father told DHS that Children adhere to a vegetarian diet and received medical care in New
York. Father also told the DHS investigative worker that he messed up. (N.T. 09/08/14, pg. 100).
DHS also met with Dr. Ajayi at SCHC and learned the growth rate of the Children's heads were
disproportionate to their bodies growth rate. Child 1 was never admitted to SCHC and was placed
in the home of family friends of the Father. DHS also learned that Child 1 was truant and not
enrolled in school. Child 2 and Child 3 remained in the hospital for further medical treatment until
April 23, 2012.
On April 19, 2012, DHS received an Emergency General Protective Service reports ("EGPS"),
which alleged that Father used excessive and inappropriate discipline with Child 3. The report
alleged that Father forced Child 3 to jump up and down near a wall with his hands in the air; that
Father would not allow Child 3 to stop jumping; and that this had continued for an unknown period
of time. The report also alleged that Father frequently left Child 2 and Child 3 in· their cribs for
long periods of time as a form of discipline and that Father had harshly punished Child 1 for eating
one of her sibling's food. On the same day, OHS obtained an Order for Protective Custody
("OPC") for Child 1. On April 20, 2012, the court issued a Dependency Court Protective Order
("OCPO") restraining Father's contact with Child 1 for one year. On April 23, 2012, DHS
obtained an OPC for Child 2 and Child 3. On April 25, 2012, at the Shelter Care Hearing,
Children's legal custody was transferred to OHS and the Children were placed with family friends.
The Children were adjudicated dependent on June 4, 2012. On October I, 2012, at the first
permanency review hearing, the court ordered Father to continue to have supervised visitation with
Child 2 and 3 at the agency, and Father to have supervised visitations with Child 1 at therapist's
discretion. On February 5, 2013, child advocate filed a motion for a finding of aggravated
circumstances and child abuse for all three children. On February 6, 2013 the permanency review
hearing was continued, In the permanency review hearing that took place on May 13, 2013, the
court reissued for one-year Father's OCPO restriction in regard to Child 1. On June 19, 2013, the
court ordered Father to continue supervised visitation with Child 2 and Child 3, and OHS to
arrange Father's supervised visitation with Child 1 at therapist's recommendation. In the
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permanency review hearings that took place on February 271 2014 and March 5, 2014, Father's
visitation remained the same. On November 8, 2013, child advocate filed an amended motion for
aggravated circumstances.
On July 7, 2014, after disposing of some preliminary matters, the trial court heard Dr. Maria
McColgan's expert testimony as part of the evidence presented by child advocate in support of her
motion for aggravated circumstances. On the same day, the court reissued the DCPO against Father
in regard to Child 1. Accordingly, Father is restricted to have contact with Child 1 until July 7,
2015. Due to the complexity of the case and number of witnesses, the aggravated circumstances
trial was done over.a period of days. On September 8, 2014, Dr. McColgan continued with her
testimony and the trial court heard both Father and DHS investigative worker testimonies. The
court maintained Father's visitation as previously ordered. On October l , 2014, the trial court
granted a continuance. On October 15, 2014, family therapist for Child I testified that she was
aware of the DCPO restricting Father's contact with Child 1. Furthermore, Child l's therapist
testified she does not believe it is in the best interest of the child to have the restricted DCPO lifted.
(N.T. 10/15/2014, pg. 128). Consequently, in accordance with the court orders issued on October
1, 2012, May 13, 2013 and July 7, 2014, the court maintained Father's DCPO restriction as to
Child 1. O:n October 15, 2014, child advocate withdrew the motion requesting aggravating
circumstances as to Child 1 (N.T.10/15/14, pgs. 12-13). In the middle of the permanency review
hearing, Father's counsel requested by oral motion.toreopen the record to allowFather's testimony
as to the aggravated circumstances. The court denied Father'smotion. (N.T. 10/15/14,pg. 45). The
October 15, 2014, listing was a special listing in order to complete testimony of the aggravated
circumstances trial and permanency review. This date was agreed by the parties for a date and time
certain at 2:00 P.M. (N.T. 10/15/14, pgs. 8-10, 34-37). Case was called at 2:00 P.M., but court
officer informed judge, that Father was not present, but was on his way. Case was called again at
2:30 P.M. and Father was
. still not present. Father did not show up until 45 minutes into . the
permanency hearing. Father's counsel had Father testify on September 8, 2014, and cross-
examined all witnesses at all hearings and provided a final argument. (N.T.10/15/14, pgs. 8-10,
34-37). With the DCPO in place for Child 1, it means that Father's visits with Child 1 are
suspended. Visits are to resume upon therapist recommendations and court lifting the DCPO. As
a continuation of the hearing on October 23, 2014, the court announced its decision finding
aggravated circumstances as to Father only, and ordered that no reasonable efforts be made to
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preserve the family and reunify the Children with the Father. The court also suspended Father's
visitation as to Child 2 but Father's visits with Child 3 remained status quo based on the prior
orders as to allow for a convenient time for Child 3's therapist to testify. (N.T. 10/23/14, pgs. 95-
96). On November 24, 2014, Father's attorney filed a notice of appeal for the order issued on
October 23, 2014.
Discussion:
Appeal Issues As to All three Children
1. The court's refusal to allow Father to testify on the aggravated circumstances issues was
a denial of due process and abuse of discretion. Although Father was late in arriving on
October 23, 2014 to the four-hour hearing, he had been on time for the previous five
listings, when each time the court, having been engaged in numerous matters due to
lateness in the day, had continued the matter after several hours of Father and all parties
waiting. Furthermore, as the hearing continued three and one-half hours after Father's
arrival, and as the court had not yet ruled on the aggravated circumstances, there would
have been no prejudice to the parties or judicial economy to allow Father's testimony.
2. Father was· denied a fair hearing and due process of law by the juvenile court, limiting his
cross-examination of the expert witness by denying him the opportunity to ask
"hypothetical questions.
Father's first claim on appeal contends that the trial court abused its discretion, refusing to hear
Father's testimony on the aggravated circumstances issue. Under Pennsylvania law, it is within
the discretion of the court to permit either side to reopen its case to present additional evidence.
Commonwealth v. Mathis, 463 A.2d 1167, 1171 (Pa. 1983 ). A denial of such opportunity will not
be ordinarily disturbed unless the court abused its discretion. In re J.E.F. 409 A.2d 1165, 1166
(Pa. 1979). Furthermore, under Pa.R.E. 611 (a), Pennsylvania courts have discretionary control
over the mode and order in which witnesses are interrogated and evidence presented. The court
can (1) make those procedures effective for determining the truth; (2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
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The record established that Father testified on the aggravated circumstances issue at the September
8, 2014, hearing. The October 15, 2014, listing was a special listing with a date and time certain
to continue the previous hearing. Father was present at the previous hearing upon which the
October 15, 2014, date was given by the court. Father was well aware of the circumstances. The
court officer informed the judge that as of 2:00 P.M. Father still had not arrived. Case was called
at 2:30 P.M. Father was still not present, but the court was told he was on his way. Father did not
arrive until approximately 45 minutes into the hearing having been started. (N.T. 10/1/14, pgs. 8-
10, 34-37). Since Father had already testified on September 8, 2014, and Father's counsel had
already cross-examined all witnesses at all the hearings and provided final argument, the court was
well within its discretion to deny Father's request to re-open the record to allow additional
testimony from Father. The court complied with Pa.R.E. 611 (a) to conduct an expeditious hearing
to avoid wasting of time and protect the other witnesses from harassment. Father had been present
at previous hearings and was wen aware of the difficulty of obtaining court dates and other delays
from his own attorney with all witnesses present and ready to proceed. (N. T. 10/1/14, pg. 46) (N. T.
10/1/14, pgs. 5, 7). Furthermore, at the moment in which the court denied re-opening the record,
the court had sufficient evidence to reach a decision on Children's aggravated circumstances.
Accordingly, Father's testimony would constitute needless cumulative testimony pursuant to Pa.
R.E. 403.
Father next issue is that the trial court denied him the opportunity to ask hypothetical questions to
child's advocate expert witness in cross-examination. Pennsylvania law requires experts to state
the facts or data on which the opinion is based. Pa.RE. 705. In doing so, experts can state the basis
of the opinion through hypothetical questions (see explanatory comment to Pa.R.E. 705). At the
same time, under Pa.R.E. 611 (a), Pennsylvania courts have discretionary control over the mode
and order in which witnesses are interrogated and evidence presented. The court can (1) make
those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect
witnesses from harassment or undue embarrassment. Furthermore, under Pennsylvania case law,
it is well settled that court's evidentiary rulings on questions are controlled by the sound discretion
of the court and those rulings will not be disturbed unless a clear abuse of discretion is shown.
Abuse of discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result
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of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Ann. M Phillips v
Clark D. Gerhar, 801 A.2d 568, 572 (Pa. Super. 2002).
At the July 7, 2014, hearing, Father's attorney asked Dr. McColgan: "so a child presenting the
same symptoms as Child and also no other systemic causes known, have you ever made a diagnosis.
of failure to thrive that did not also include neglect?". (N.T. 7/07/14, pg. 58). Child advocate
timely objected the question for lack of relevance, arguing that the question did not make reference
to the Child. The trial court sustained child's advocate's objection but ordered Father's attorney
to .rephrase the question. (N.T. 7/07/14, pg. 58). Father's attorney rephrased the question as
follows: "Have you ever made a diagnosis of a child for failure to thrive without corresponding
diagnosis of neglect, in a case where the child presented the same symptoms as Child, and also did
not have any systemic problems?". (N.T. 7/07/14, pg. 59). Child advocate objected for vagueness
but the trial court overruled the objection allowing the witness to answer. (N.T. 7/07/14, pg. 59).
Again, at the September 8, 2014, hearing, Father,.s attorney asked the witness: "if you as a doctor,
had not had the social history piece which led you to consider abuse and neglect, you hadn't had
that but you had all the physical reports and so on, that were at your disposal, could these conditions
have been caused by something other than abuse or neglect?". (N.T. 9/08/14, pg. 44). Child
advocate timely objected to the question as a compound question. (N.T. 9/08/14, pg. 44). The court
sustained and allowed Father's attorney to rephrase her question. (N.. T. 9/08/14, pg. 44). Father's
attorney did so as follows: "if you had not heard that social history, okay, and yet here you have
the same child with the same physical presentations, could those conditions have been caused by
something other than abuse or neglect?" Child advocate objected again but the trial court overruled
the objection. (N.T. 9/08/14, pg. 45) and the witness answered. (N.T. 9/08/14, pgs. 45-46).
In the same hearing, Father's attorney asked: "Now, assuming for a moment that Child's
nutritional problems led to all these injuries, these physical issues which you've reported, and let's
assume for the sake of argument that dad's particular way of feeding Child caused them. Is it
possible the Father was following a diet for the Children, which was simply inappropriate for that
little girl?". (N.T. 9/08/14, pg. 49). The question was timely objected as a compound question and
the court sustained the objection. (N.T. 9/08/14, pg. 49). Father's attorney rephrased and the
witness expressed that she cannot answer due to the fact that she does not know what type of food
Father gave to Child. (N.T. 9/08/14, pg. -SO). Father's attorney asked "is it possible that a parent
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can give a 2-year-old a diet which would cause Child digestive problems?" The witness, again,
answered that she does not know how to answer the question. (N.T. 9/08/14, pg. 52). Child
advocate objected, asked and answered. The court sustained the objection (N.T. 9/08/14, pg. 51)
because previously the witness testified her lack of knowledge about the type of food Father gave
to Child. (N.T. 9/08/14, pg. 50). Father's attorney's next question was "isn't it true that a protein-
only diet can kill a person?". (N.T. 9/08/14, pg. 51 ). The witness answered "yes" but added, "there
was no indication that these Children were on a protein diet". (N.T. 9/08/14, pg. 51). Despite
expert's answer, Father's attorney claimed she was just asking a hypothetical question. (N.T.
9/08/14, pg. 51). Child's advocate objected, asked and answered, and the court sustained. (N.T.
9/08/14, pg. 51). Finally, Father's attorney asked: "if a child of Child's age did pass a significant
amount of beans and rice, would that indicate any particular medical issue to you?". (N.T. 9/08/14,
pg. 87). No objection was raised and expert answered the question (N.T. 9/08/14, pg. 86).
As for the examples shown in the above paragraphs, and the other numerous examples throughout
the record of hypothetical questions asked by Father's attorney, the objection raised and the rulings
of the trial court indicate that the trial court used its discretion pursuant Pa.RE. 611 (a) to control
the mode in which Father's attorney interrogated the witness in cross- examination. In doing so,
the record shows that Father's attorney was permitted to ask and rephrase her hypothetical
questions. Consequently, Father's attorney had a fair opportunity to cross-exam the expert witness
and the issue raised on appeal by Father's attorney is meritless. The court did not abuse its
discretion or denied Father a fair hearing-and due process oflaw.
Appeal Issues As to Child 1
1 Finding aggravated circumstances was improper, as the petitioner did not meet its burden
of clear and convincing evidence as to Child 1 since there was no proper petition as to
Child 1.
2 Finding that DHS made reasonable efforts was improper, as the petitioner failed to prove
the prerequisites finding of aggravated circumstances.
3. The court's continued denial of Father's right to visitation was improper, as the petitioner
did not satisfy its burden of showing by clear and convincing evidence that such visits
would present a grave threat to the Children:
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On the first issue on appeal as to Child 1, Father argues that the trial court abused its discretion,
finding the existence of aggravated circumstances as to Child 1, due to the fact that there was no
proper petition before the court. Upon reviewing the record, on October 15, 2014, child advocate
requested to withdraw her motion for aggravated circumstances as to Child 1 only (N.T. 10/15/14,
pg. 12), and the court effectively granted child's advocate motion. (N.T. 10/15/14, pg. 13).
Nonetheless, the trial court did find aggravated circumstances as to Father for Child 1. (N.T.
10/15/14, pgs. 3, 6). Consequently, the trial court requests that its decision of finding aggravated
circumstances as to Father for Child 1 be vacated since Child 1 was removed from the aggravated
circumstances petition by request of the child advocate.
On the second issue on appeal as to this Child, Father argued that without a finding of aggravated
circumstances, the trial court should have not found that DHS does not need to make further
reasonable efforts. Since the child advocate's motion was granted, the trial court requests that its
decision that DHS does not need to make further reasonable efforts to reunify Father with Child 1
be vacated.
On the third issue on appeal as to this Child, Father argued that the court improperly denied his
right to visitation, as the petitioner did not satisfy its burden of showing by clear and convincing
evidence that such visits would present a grave threat to Child 1. Since at the time of the hearing,
the goal Was still reunification, a parent may not be denied visitation except where a grave threat
to the child can be shown. In the interest ofM.B .. 449 A.2d 507, 512-513 (Pa. Super. 1996).
Visitation has been limited or denied only where the parents have been shown to suffer from severe
mental or moral deficiencies that constitute a grave threat to the safety and welfare of the child. In
re C.J. 729 A.2d 89, 95 (Pa. Super. 1999). The standard is clear and convincing evidence that a
parent is unfit to associate with his or her child. See Id.A careful review of the record established that Father hit Child 1 with a belt, made Child 1 jump
up and down with her hands up (N. T. 9/08/14, pg. 112), chased Child 1 with a knife in his hand
and also hit her with an extension cord. (N.T. 10/15/14, pg. 124). Additionally, the record revealed
that Father not only restricted Child 1 's intake of food, but also subjected Child 1 's feedings to
reading a specific number of pages. (N.T. 9/08/14, pg. 112). Father's outrageous actions have
caused Child 1 post-traumatic stress disorder and extreme fear of her Father. (N.T. 10/15/14, pgs.
123-124). · On some occasions Child displayed an aggressive behavior and said to others "You
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don't deserve to eat that food. I will call your parents and make sure that they hit you at home".
(N.T. 10/15/14, pg. 140). Child's therapist recommended that it is in Child l's best interest to
have no contact with Father. (N.T. 10/15/14, pg. 124). Consequently, Father's heinous and
repugnant actions against Child 1 not only posed a grave threat to the child but also clearly showed
that Father was unfit to associate with Child 1; therefore, visits had to be suspended. Father
constituted a grave threat to the safety, health and welfare of Child 1. The trial court concluded
by clear and convincing evidence that Father possessed a moral deficiency. The trial court
determined that DHS social worker and Child 1 therapist's testimony were competent and both
were credible witnesses. Accordingly, the trial court properly maintained the DCPO, reissued on
July 20, 2014, that restricted Father's contact with Child 1 for one year, which means Father's
visits are suspended.
Appeal Issues As to Child 2
I Finding aggravated circumstances was improper, as the petitioner did not meet its burden
of clear and convincing evidence.
2 Finding that DHS made reasonable efforts was improper, as the petitioner failed to prove
the prerequisites finding of aggravated circumstances.
3 The court's continued denial of Father's right to visitation was improper, as the petitioner
did not satisfy its burden of showing by clear and convincing evidence that such visits
would present a grave threat to the Child.
Father's first issue as to Child 2 is that the trial court abused its discretion, finding the existence·of
aggravated circumstances as to Child 2. Under 42 Pa.C.S. § 6341 (C) (1), the trial court shall
determine if aggravated circumstances exist if the county agency or child's attorney alleges the
existence of aggravated circumstances and the child is adjudicated dependent. Under 42 Pa.C.S.
§ 6302 (2), aggravated circumstances exist when 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. Aggravated physical neglect is defined as any omission in the care
of a child, which results in a life-threatening condition or seriously impairs the child's functioning.
Pa.C.S. § 6302 (5).
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The record established that the Children's inappropriate nutrition was an issue since 2011, when
DHS received a report alleging malnutrition of the three Children. (N.T. 9/08/14, pgs. 95, 97,106-
107). Children's nutrition remained a serious concern as established by a CPS report alleging
malnutrition in April 2012. (N.T. 9/08/14, pgs. 97-~8). In fact, Dr. McColgan testified that Child
2's appearance on April 19, 2012, was very thin and cachectic. Child's bones and ribs were visible
and she possessed a distended and protruding abdomen. (N.T. 9/08/14, pg. 9). Child's weight was
very low (N.T. 9/08/14, pg. 9), less than fifth percentile, which is not typical in a two-year old
child, who weighed eight
~ pounds at birth. (N.T. 9/08/14, pg. 9). A cachectic
..
:
appearance, according
to Dr. McColgan, is an appearance that is extremely thin, malnourished and emaciated. (N.T.
9/08/14, pg. 10). Child 2 was also severely constipated (N.T. 9/08/14, pgs. 10, 14). As a result,
she was producing hard stools every two to three days. (N.T. 9/08/14, pg. 13). After considering
all these symptoms, Dr. McColgan diagnosed Child 2 with failure to thrive. (N.T. 9/08/14, pg. 9).
Child 2's failure to thrive and poor nutrition caused liver (hematopoiesis) and spleen enlargement.
(N.T. 9/08/14, pgs. 11-12). Child's non-functioning liver was starting to affect her seriously. (N.T.
9/08/14, pg. 21 ).
Child 2's severe constipation was attributed to poor nutrition. (N.T. 9/08/14, pg. 14). In doing so
Dr. Mccolgan excluded other possible constipation causes and considered that, after receiving
appropriate food and Miramax, Child 2 started to stool well. (N.T. 9/08/14, pgs. 12, 14). In
reference to Child 2's liver enlargement and ~tomach distention, Dr. McColgan determined that
both were caused by Child 2's failure to thrive and poor nutrition. (N.T. 9/08/14, pg. 12);
otherwise, both conditions would not have improved with proper food and Miralax alone, and no
treatment. (N.T. 9/08/14, pg. 12). In considering the causes of Child 2's liver enlargement, Dr.
Mccolgan excluded constipation and other possible medical conditions as conceivable causes.
(N.T. 9/08/14, pg. 12). Dr. McColgan also concluded that during Child 2's hospitalization and
later under foster parents care, her symptoms disappeared with no intervention other than proper
nutrition. (N.T. 9/08/14, pgs. 17-18, 24, 26). Moreover, none of the laboratory tests results and
medical history indicated other possible causes of Child 2's failure to thrive diagnosis.
Consequently, Dr. McColgan attributed the failure to thrive to a long period of neglect (N.T.
9/08/14, pgs. 23, 26-27).
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The record established that Father was Children's primary caregiver. Father provided Children's
food from Monday to Friday (N.T. 9/08/14, pgs. 83, 114), while Children's mother worked from
7:00 A.M. to 9:00 P.M. Upon mother's arrival from work, the Children were already sleeping.
(N.T. 9/08/14, pg. 83). Father also admitted all the decisions concerning Children's feedings were
predominantly made by him. (N.T. 9/08/14, pg. 82). Father claimed that his Muslim faith allowed
· him to place dietary restrictions on the Children. (N.T. 9/08/14, pgs. 97, 111,116). However, Father
was withholding food from the Children. (N.T. 7/07/14, pg. 66), threw the food in the trash or put
it back in the pot" when mother apportioned it. (N.T. 9/08/14, pg. l l l j.Father's pattern of conduct
led Child 2 to be afraid to eat in front of him. (N.T. 9/08/14, pg. 66). The record further established
that Child 2's diet, was very limited for a child of her age (N.T. 9/08/14, pg. 92), and that DHS
nurse disqualified the quality and quantity of the food given by Father as "null and void". (N.T.
9/08/14, pg. 112). Throughout the course of DRS investigation, Father never denied giving
inappropriate food to the Children. (N.T. 9/08/14, pg. 109).
Father was aware of Child 2's harmful diet. DRS nurse not only disqualified the quality of the
food given by Father to the Children as "null and void" (N.T. 9/08/14, pgs. 72, 97, 112), but also
emphatically commanded the Father to stop providing Childrenthe wrong food. (N.T. 9/08/14, pg.
96). Additionally, Dr. McColgan's testimony, established that Child 2's medical condition was
visible to a person who had daily access to Child. (N.T. 7/07/14, pg. 40-41) (N.T. 9/08/14, pgs. 8,
9). In fact, Father knew that Child 2 had a distended stomach two weeks prior to the date in which ·
mother took the three Children to the doctor. (N.T. 9/08/14, pgs. 64-65). These facts led this court
to conclude that Father knew that Child 2's dietary restrictions were harmful to Child 2's health.
Nonetheless, Father did not take Child 2 to the doctor. (N.T. 9/08/14, pgs. 85). In fact, it was the
mother, and not Father, who took Child 2 to the doctor. (N.T. 9/08/14, pgs. 65,114) (N.T. 7/07/14,
pg. 73).
The record established by clear and convincing evidence that Father failed to exercise his duty of
care as to Child 2. Father failed to provide for Child 2's safety, health and welfare. Father was
aware of the inadequacy of the dietary restriction and its harmful effects in Child 2's health. This
was the second time that Father failed to provide for the Children's safety, health and welfare.
(N.T. 09/08/14, pgs. 94-99). During the investigation, when Father was asked by DHS
investigative worker as to Children's diet, Father answered and repeated several times "I messed
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up". (N.T. 09/08/14, pg. 100). Nonetheless, Father maintained Chilc;l 2's dietary rest~iction~b.Sl'\O~
causing a serious impairment on Child 2' s bodily functions. Moreover, Child 2' s medical condition
reached the level of a life threating condition as testified by Dr. McColgan. (N.T. 09/08/14, pg.
20). As a result, child advocate met its burden by clear and convincing evidence that aggravated
circumstances existed due to Father's abuse of Child 2.
Father's second issue on appeal as to Child 2 is that the court erred in finding that DRS made
reasonable efforts for reunification, as the petitioner failed to prove by clear and convincing
evidence the existence of aggravated circumstances. Under 42 Pa.C.S. § 6341 (C) (1), if the court
determines by clear and convincing evidence that aggravated circumstances exist, the court shall
establish 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. The
Pennsylvania Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, in compliance with the Adoption and
•
Safe Families Act, provides the court with discretion to "detertnine 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" when the court finds aggravated
circumstances exist In ihe Interest o(Lilley, 119 A.2d 327, 333 (Pa.Super.1998) In re A.H, 763
A.2d 873,878 (Pa. Super.2008). The focus of the inquiry into whether to te~inate efforts to
reunify is the best interest of the child, as child's health and safety supersede all other
considerations. In re R.P .. 957 A.2d 1205, 1220 (Pa.Super.1998).
The record clearly established.that Father was Child 2's primary caregiver from Monday to Friday
(N.T. 9/08/14, pgs. 83, 114), and only Father decided what Child 2 ate. (N.T. 9/08/14, pg. 82).
The initial allegations of Child 2's malnutrition, made in a DRS 2011 report, became a reality in
April 2012, when Dr. McColgan diagnosed Child 2's failure to thrive. Despite DHS services, such
as a weekly nurse visitation and guidance (N.T. 9/08/14, pgs. 72, 96, 97)~ Father continued to
endanger Child 2's physical and mental development. As established by Dr. McColgan's
testimony, Child 2 was diagnosed with failure to thrive. (N.T. 9/08/14, pg. 9). Chiid 2's bones and
ribs were visible and she possessed a distended and protruding abdomen. (N.T. 9/08/14, pg. 9) .
. Child 2's weight was atypically low for a child of her age (N.T. 9/08/14, pg. 9). Child 2 was also
severely constipated. (N.T. 9/08/lLI-, pgs. 10, 13-14). Failure to thrive and poor nutrition also
caused an enlargement of her liver and spleen. (N.T. 9/08/14, pgs. 11-12). Child's liver function
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was starting to affect her seriously. (N.T. 9/08/14, pg. 21). Child 2's medical condition was visible
to Father (N.T. 7/07/14, pg. 40-41) (N.T. 9/08/14, pgs. 8, 9), and Father noticed Child 2's distended
stomach before mother took her to the doctor. (N.T. 9/08/14,·pgs. 64-65). Nonetheless, Father did
not make appropriate adjustments to Child 2's diet nor provide his Child with medical attention.
Accordingly, the evidence presented has led this court to conclude that Child 2's health cannot be
assured under Father's care. Consequently, it was within the trial court's discretion to order no
reasonable efforts to reunify Father and Child 2 be made. It is in the best interest of Child 2's
safety,· health and welfare.
Father's third issue as to Child 2 on appeal is whether the court denied his right to visitation. Father
argued that petitioner did not satisfy its burden of showing by clear and convincing evidence that
Father would present a grave threat to the Children. Since at the time of the hearing, the goal was
still reunification, a parent may not be denied visitation except where a grave threat to the child
can be shown. In the interest ofM.B.. 449 A.2d 507, 512-513 (Pa. Super. 1996). Visitation has
been limited or denied only where the parents have been shown to suffer from severe mental or
moral deficiencies that constitute a grave threat to the safety .and welfare of the child. In re C.J.
729 A.2d 89, 95 (Pa. Super. 1999). The standard is clear and convincing evidence that a parent is
unfit to associate with his or her child. See Id.Dr. McColgan attributed Child 2's failure to thriveto neglect (N.T. 9/08/14, pgs. 26-27). After
observing that Child 2's precarious physical appearance (N.T. 9/08/14, pg. 9) and symptoms (N.T.
9/08/14, pgs. 10-14) disappeared with no other intervention other than proper nutrition (N.T.
9/08/14, pgs. 17-18, 24, 26), and the laboratory tests results and medical history excluded other
possible causes, Dr. McColgan also concluded that Child 2's failure to thrive was the product of
long period of nutritional neglect. (N.T. 9/08/14, pg. 23). At the same time, it was established that
Father was not only Child 2's primary caregiver (N.T. 9/08/14, pgs. 83, 114), but also determined
Child 2's diet. (N.T. 9/08/14, pg. 82). In doing so, Father subjected Child 2 to dietary restrictions,
and maintained those restrictions despite being aware of the diet's insufficiency (N.T. 9/08/14, pg.
112) and the harmful consequences on Child 2's health. (N.T. 7/07/14, pg. 40-41) (N.T. 9/08/14,
pgs. 8, 9, 64-65). Father unreasonably maintained Child 2's strict diet by actions such as
withholding Child 2's food (N.T. 7/07/14, pg. 66), throwing the food in the trash or putting it back
in the pot (N.T. 9/08/14, pg. 111) when mother apportioned it (N.T. 9/08/14, pg. 111), leading
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Child 2 to be afraid to eat in front of him. (N.T. 9/08/14, pg. 66). Finally, Father failed to provide
Child 2 with medical attention. (N.T. 9/08/14, pgs. 64, 85). Child 2's therapist also indicated that
the Child 2 is so afraid of Father that during therapy sessions, Child 2 cannot disclose her secrets
for fear that Father will kill her with a gun if Child 2 shares what happened with Father during
visits. (N.T. 10/23/14, pg. 57). Father minimizes the trauma Child 2 experienced at home. (N.T.
10/23/14, pg. 62). Child 2's therapist recommended that Father visits with Child be suspended at
this time. (N.T. 10/23/14, pgs. 62-63). The very fact that Child 2 has continued to have visits with
Father the last two years has hindered the Child 2's progress at therapy. (N.T. 10/23/14, pg. 63).
Child 2 needs to feel safe both physically and emotionally. (N.T. 10/23/14, pgs. 64-68).
Consequently, the trial court concluded that Father's heinous and repugnant actions not only posed
a grave threat to Child 2 but also clearly showed that Father was unfit to associate with Child 2;
therefore, visits had to be suspended. Father constituted a grave threat to the safety, health and
welfare of Child 2. The trial court concluded that Father severe moral deficiencies constituted a
grave threat to Child 2. DHS witnesses and Child 2's therapist were competent and credible with
their testimony. Accordingly, the trial court did have clear and convincing evidence to suspend
Father's visits with Child 2.
Appeal Issues As to Child 3
1 Finding aggravated circumstances was improper, as the petitioner did not meet its burden
of clear and convincing.
2 Finding that the DHS need not to make reasonable efforts. was improper, as the petitioner
failed to prove the prerequisites finding of aggravated circumstances.
3 The court's continued denial of Father's right to visitation was improper, as the petitioner
did not satisfy its burden of showing by clear and convincing evidence that such visits
would present a grave threat to the Children.
Father argues that the trial court abused its discretion finding the existence of aggravated
circumstances as to Child 3. Accordingly, Father, argued that petitioner did not meet its burden of
clear and convincing evidence as to Child 3. Under 42 Pa.C.S. § 6341 (C) (1), if the county agency
or 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.
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Additionally, 42 Pa.C.S. § 6302 (2) establishes that aggravated circumstances exist when 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. Under Pa.C.S. § 6302 (5),
aggravated physical neglect is defined as any omission in the care of a child which results in a life-
threatening condition or seriously impairs the child's functioning.
The record established that Child 3 's malnutrition was a serious concern in two different reports,
in 2011 (N.T. 9/08/14, pgs. 95, 97,106-107) and 2012 (N.T. 9/08/14, pgs. 97-98), respectively.
Dr. McColgan at SCHC, concluded that Child 3 suffered from severe failure to thrive due to
neglect (N.T. 7/07/14, pgs. 33-34, 45) and that Child 3's failure to thrive was probably affecting
his height. (N.T. 7/07/14, pg. 45). Child's appearance was very thin and cachectic; his ribs were
visible; he did not have a normal aspect for a child of his age; andhe had a distended stomach.
(N.T. 7/07/14, pgs. 36-37). Child's weight was less than fifth percentile (N.T. 7/07/14, pg, 34)
and if his health problems were left untreated it would have become life threatening (N. T. 7 /07 /14,
pgs. 44, 68) with a substantial risk of death. (N.T. 7/07/14, pg. 69). Dr. McColgan ruled out other
medical conditions that could have caused Child 3's failure to thrive. (N.T. 7/07/14, pgs. 36, 44).
Furthermore, no special medical intervention was required to improve Child 3 's condition. A
normal diet provided throughout his four days of hospitalization was enough to make him gain
about three pounds. (N.T. 7/07/14, pgs. 34, 43, 64-65) (N.T. 9/08/14, pg. 26). Consequently, Dr.
McColgan concluded that Child 3's failure to thrive was caused by neglect. (N.T. 7/07/14, pgs. 34,
36, 44). This conclusion has been reinforced by the fact that, under foster parents care, Child 3
gained several pounds. (N.T. 7/07/14, pg. 42-43).
The record established that Father was Child 3 's primary caregiver. In fact, Father admitted that
Child 3 was under his ?are until Child's placement in foster care. (N.T. 9/08/14, pg. 75). Father
provided Child 3's food from Monday to Friday. (N.T. 9/08/14, pgs. 83, 114). Mother worked
from 7:00A.M. to 9:00 P.M., and Child 3 was sleeping when mother returned. (N.T. 9/08/14, pg.
83). Father was in charge of deciding Child 3's diet. (N.T. 9/08/14, pg. 82). In doing so, Father
subjected Child 3 to dietary restrictions in compliance with Father Muslim faith. (N.T. 9/08/14,·
pgs. 97, 111,116). However, Father withheld Child J's food (N:T. 7/07/14, pg. 66) and thre~the
food in the trash or put it back in the pot" (N.T. 9/08/14, pg. 111) when mother apportioned it.
(N.T. 9/08/14, pg. 111). As a result, Child 3 was afraid to eat in front of his Father. (N.T. 9/08/14,
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pg. 66). Throughout the course of DHS investigation, Father never denied giving insufficient food
to Child 3. (N.T. 9/08/14, pg. 109).
The record also established that Father was aware of the inadequate diet provided to his Child. A
DHS nurse visited the family every week (N.T. 9/08/14, pgs. 72, 97), and opined that the quality
and quantity of food given by Father was "null and void" (N.T. 9/08/14, pg. 112). DHS nurse
emphatically commanded Father to stop providing Child 3 with the wrong food. (N.T. 9/08/14, pg.
96). Dr. McColgan's testified that Child 3's medical condition was visible to a person that had
daily access. to the Child. (N.T. 7/07/14, pg. 40-41) (N.T. 9/08/14, pgs. 8, 9). These facts led this
court to conclude that Father knew that the Children's dietary restrictions were harmful tc:i
Children's health. Nonetheless, Father did not take Child 3 to the doctor. (N.T. 9/08/14, pgs, 65,
114), (N.T. 7/07/14, pg. 73). As a result, the record established by clear and convincing evidence
that Father failed to exercise his duty of care as to Child 3. Father failed to provide for Child 3's
safety, health and welfare. Father was.aware of the inadequacy of the dietary restriction and knew
the harmful effects on Child 3's health. Father continue to maintain Child 3's dietary restriction
seriously impairing Child 3's bodily functions, almost reaching the level of a life threating
condition. As a result, child advocate has met its burden by clear and convincing evidence that
aggravated circumstances existed due to Father's abuse of Child 3.
Father also argued that the court erred in finding DHS does not have to make reasonable efforts,
as the petitioner failed to prove the prerequisites finding of aggravated circumstances. Under 42
Pa.C.S. § 6341 (C) (1) if the county agency or the child's attorney alleges the existence of
aggravated circumstances and the court determines by 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. The Pennsylvania Juvenile Act, 42 Pa.C.S.A. §§
6301-6365, complies with the Adoption and Safe Families Act and provides the court with
discretion to "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" when the court finds aggravated circumstances exist In the Interest of Lilley. 719
A.2d 327, 333 (Pa.Super.1998) In re A.H, 763 A.2d 873,878 (Pa. Super.2008). The focus of the
inquiry into whether to terminate efforts to reunify is in the best interest of the child. The child's
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health and safety supersede all other considerations. In re R.P.. 957 A.2d 1205, 1220
(Pa.Super.1998).
The record clearly established that Father was Child 3's primary caregiver (N.T. 9/08/14, pgs. 83,
114), and had the exclusive discretion to decide Child 3's diet. (N.T. 9/08/14, pg. 82). The
concerns raised by the initial DRS 2011 report regarding Child's malnutrition worsened in April
2012, when Dr. Mccolgan diagnosed Child 3's failure to thrive. Despite DHS services, such as a ·
DHS nurse's weekly visitation and guidance on Child 3's diet (N.T. 9/08/14, pgs. 72, 96, 97),
Father maintained Child's dietary restrictions, endangering his physical and mental development.
Child 3 was diagnosed with a severe failure to thrive, was starting to affect his height. (N.T.
7/07/14, pgs. 33-34, 45). Child's appearance was very.thin and cachectic; his ribs were visible; he
did not have a normal aspect for a child 'of his age; and had a distended stomach. (N.T. 7/07/14,
pgs. 36-37). The record also established that his weight was less than the fifth percentile. (N.T.
7/07/14, pg. 34). If his condition would have been left untreated, it would become life threatening
(N.T. 7/07/14, pgs. 44, 68) with a substantial risk of death. (N.T. 7/07/14, pg. 69). Child 3's
medical condition was visible to a person that had daily access to the child. (N.T. 7/07/14, pg. 40-
41) (N.T. 9/08/14, pgs. 8, 9). As a consequence, it could not pass unnoticed to Father. Moreover,
Father failed to provide Child 3 with medical assistance. Mother took Child 3 and other siblings
to the hospital. Accordingly, the evidence presented has led this court to conclude by clear and
convincing evidence that Child 3 's health cannot be assured under Father's care. Consequently, it
was within the trial court discretion to order no reasonable efforts to reunify Father and Child 3 be
made. It is in the best interest of Child 3 's safety, health and welfare.
Father also argued that the trial court improperly denied Father's right to visitation, as the .petitioner
did not satisfy its burden of showing by clear and convincing evidence that visits would present a
grave threat to Child 3. The trial court, after a general review of the record, verified that Father's
visitationas with Child 3 has not been suspended or denied on October 23, 2014. The record clearly
established that on October 1, 2012, Father's visitations were supervised at the agency. The trial
court maintained Father's supervised visitation at the agency on June 19, 2013, July 7, 2014 (N.T.
7/07/14, pg. 90), and September 8, 2014. In fact, on October 23, 2014, Father's attorney expressly
requested to this court 'Just to be clear, my client asked visits to remain the same with child at this
time, correct?" and the court expressly responded that Father visitations remain status quo based
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on the court prior orders. (10/23/14, pgs. 95-96). Consequently, Father's appeal of denial of·
visitation with Child 3 is without any merit.
Conclusion:
For the aforementioned reasons, the court finds that child advocate's motion met its statutory
burden by clear and convincing evidence regarding Child 2 and Child 3's aggravated
circumstances. The court also finds that DHS need not make further reasonable efforts for
reunification with Father as to Child 2 and 3. As to child's advocate motion for aggravated
circumstances for Child 1, the trial court requested that its decision of aggravated circumstances
and no reasonable efforts against Father be vacated.
For the aforementioned reasons, the court finds that the petitioner met its statutory burden by clear
and convincing evidence regarding suspension of Father's visitation with Child 1 and Child 2.
Father's
.._.....
contact
.
with Child 1 and Child 2 poses a grave threat.
·.
Father's visits with ChildJ should
remain status· quo as previously ordered by the trial court.
Accordingly, the order entered on October 23, 2014, should be affirmed in part and dismissed in
part only as to the aggravated circumstances dismissal against Father as to Child 1.
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IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
In Re: K.H.M., A.I:J.M., J.M. CP-51-DP-0000675-2012/0000676-2012/0000669-2012
APPEAL OF: A.F.M., Father : 3249, 3250, 3251 EDA 2014
PROOF OF SERVICE
I hereby certify that this court is serving, today Tuesday, March 24, 2015, the foregoing Opinion,
by regular mail, upon the following person(s):
Courtney Norella, Esquire
City of Philadelphia Law Dept.
Office of the City Solicitor
1515 Arch Street, 16th Floor
Philadelphia, Pennsylvania 19102-1595
Attorney for D.H.S.
James Martin, Esquire
1800 JFK Blvd, Suite 300
Philadelphia, PA 19102-1729
Attorney for Mother
Shereen White, Esquire
Defender Association of Philadelphia
Child Advocacy Unit,
1414 Samson Street 4th Floor
Philadelphia, PA 19103
Child Advocate
Maureen F. Pie, Esquire
8 Summit A venue, Suite 200
Philadelphia, PA 19118
Attorney for Father
BY THE COURT:
Ho