In Re: J.Z & M.Z. Appeal of J.H., Mother

J-S28016-15; J-S28017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.Z. AND M.Z., MINORS IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.H., MOTHER No. 2126 MDA 2014
Appeal from the Order entered December 4, 2014,
in the Court of Common Pleas of Lancaster County, Juvenile
Division, at No(s): CP-36-DP-000028-2013, CP-36-DP-000185-2012
IN THE INTEREST OF: J.Z. AND M.Z., IN THE SUPERIOR COURT OF
MINORS PENNSYLVANIA
APPEAL OF: M.Z., FATHER No. 2175 MDA 2014
Appeal from the Order entered December 4, 2014,
in the Court of Common Pleas of Lancaster County, Orphans’
Court, at No(s): CP-36-DP-0000028-2013,
CP-36-DP-0000185-2012
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 27, 2015
J.H. (“Mother”) and M.Z. (“Father”) appeal from the orders entered on
December 4, 2014, adjudicating M.Z. (born in February of 2013) and J.Z.
(born in June of 2010) (collectively “the Children”) dependent, and changing
the Children’s goal to adoption. We affirm.
The trial court accurately detailed the factual background and
procedural history of this case as follows:
[Lancaster County Children and Youth Social Service
Agency (“CYS”)] has a history with this family dating back to
2010. In November of 2012, [CYS] obtained legal custody of
[J.Z.], due to ongoing concerns about [Mother and Father’s] lack
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of housing, domestic violence, and drug use. A Family Service
Plan [(“FSP”)] was approved by the [trial court] for Mother and
Father. Mother gave birth to [M.Z.] on February 11, 2013.
[CYS] filed for physical custody of [the Children] on February 12,
2013, because of continuing issues and a lack of cooperation on
the part of both parents, in completing their FSP. The [trial
court] transferred physical custody of [J.Z.], and physical and
legal custody of [M.Z.] to [CYS] at adjudication and disposition
hearings on March 19, 2013. At the time of the hearing, the
[trial court] approved Child Permanency Plans, which included
mental health, drug and alcohol, parenting, financial stability,
housing, and commitment goals for Mother. The Child
Permanency Plans included mental health, drug and alcohol,
crime free, parenting, financial stability, housing, and
commitment goals for Father. These goals mirror those set forth
in the 2012 FSP.
Mother gave birth to a third child, [A.Z.], on March 29,
2014. Father was the father of this child. On April 2, 2014,
[CYS] received custody of [A.Z.], after Mother dropped him off
at a safe haven. Both Mother and Father signed Consents to
Adoption for [A.Z.], and their parental rights have since been
terminated. [A.Z.] was placed in the resource home that was
caring for [the Children] at that time.
Legal and physical custody of [the Children] was returned
to Mother on June 13, 2014, after being in [CYS] care for
approximately 16 months. Mother had substantially completed
her Child Permanency Plan. She was living with her mother,
[D.K., (“Maternal Grandmother”)], and had completed her
mental health evaluation and drug and alcohol evaluation, which
indicated that no treatment was necessary. The [trial court]
determined that [M]aternal [G]randmother had sufficient income
to pay for housing and the children’s needs. Mother also
received SNAP benefits. A voluntary FSP was put into place.
At the time that [the Children] were returned to Mother’s
care, Father had not completed either the 2012 FSP or the 2013
Child Permanency Plan. Father did complete his mental health
evaluation, but he had failed to follow through with the
recommended treatment. [Church of the Brethren Youth
Services (“COBYS”)] supervisor testified that caseworker
Courtney Farr told both Mother and Father that Father was not
to reside in the household or have unsupervised contact with the
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[C]hildren, as he did not complete his Child Permanency Plan.
The [CYS] caseworker also testified that Mother knew Father was
not to reside in the home.
[J.Z.] has been diagnosed with cerebral palsy and requires
occupational and physical therapy. After the [C]hildren were
returned to Mother’s care, [CYS] continued to receive reports
about ongoing concerns in the home. [CYS] received reports
that [J.Z.] was missing her occupational and physical therapy
appointments. It was also reported that Father was residing in
the home, and that [J.Z.] was hit by a rock thrown by Father.
Trial Court Opinion, 1/12/15, at 1-6 (footnotes and citations omitted).
On November 4, 2014, CYS filed a petition for temporary custody, and
the Children were placed in the physical custody of CYS. On November 18,
2014, an adjudication and disposition hearing was held in the dependency
proceedings. At the hearing, Officer J. Hatfield, a Lancaster City police
officer; Bartlet Wilbert, J.Z.’s occupational therapist; Sarah Crowther, J.Z.’s
physical therapist; Ashley Sullivan, a CYS caseworker; Nicole Lazarus1, a
supervisor at COBYS; Maternal Grandmother; and Mother testified. On
December 4, 2014, the trial court adjudicated the Children dependent and
ordered that the Children’s placement goal be adoption.
On December 15, 2014, Mother filed a notice of appeal and concise
statement of errors on appeal. Father subsequently filed a notice of appeal
and concise statement of errors on appeal on December 18, 2014.2 This
1
Ms. Lazarus is no relation to this panel’s Superior Court Judge Lazarus.
2
Mother filed a notice of appeal from the separate orders entered on
December 4, 2014 adjudicating the Children dependent and placing them in
foster care. Father filed a notice of appeal from the same orders. Mother
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Court sua sponte consolidated Mother and Father’s appeals. Mother raises
the following issues on appeal:
A. Whether the [trial court] erred by not providing visitation to
Mother and approved the Child Permanency Plan without goals
for reunification with Mother?
B. Whether it was in error to accept testimony when [CYS] failed
to provide Notice of [CYS] witnesses, in violation of Rule
1340(B)(1) of the Rules of Juvenile Procedure?
C. Whether the Court erred in not swearing the child in when
eliciting testimony from her?
D. Whether the Court erred by relying on testimony of an
unsworn four-year old, whose testimony was in direct opposition
to testimony from Mother and Maternal Grandmother, and whom
[sic] missed her prior foster parents?
E. Whether the [trial court] erred by relying on testimony from
the caseworker that stated Mother was told Father could not live
with her when Mother had legal custody of the [C]hildren and
there was no order prohibiting Mother to parent as she sees
appropriate?
and Father each filed a single notice of appeal from the two separate
adjudications of dependency and disposition as to each child. In General
Electric Credit Corp. v. Aetna Casualty and Surety Co., 263 A.2d 448,
452 (Pa. 1970), the Pennsylvania Supreme Court stated that “taking one
appeal from several judgments is not acceptable practice and is
discouraged.” In Commonwealth v. C.M.K., 932 A.2d 111 (Pa. Super.
2007), a panel of this Court quashed a joint notice of appeal filed by co-
defendants from separate judgments of sentence, citing General Electric,
supra and Pa.R.A.P. 512, Note. See also TCPF Limited Partnership v.
Skatell, 976 A.2d 571, 574 n.2 (Pa. Super. 2009) (noting that taking one
appeal from several orders is not acceptable practice and is discouraged, but
declining to quash the appeal where appellant filed an amended appeal).
Mother and Father improperly filed only a single notice of appeal from both
orders. However, in order to preserve judicial economy in our Children’s
Fast Track cases, we will address Mother and Father’s appeals.
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F. Whether the [trial court] erred by not holding the Adjudication
hearing with ten (10) days of the Shelter care hearing, in
violation of Pa.R.J.P. 1404(A)?
G. Whether the [trial court] erred by basing his decision to deny
visitation and deny a Plan for Reunification upon Mother and
Father’s "relationship"?
Mother’s Brief at 9.
Father raises the following issues on appeal:
I. Did the trial court err by failing to hold the adjudication
hearing within ten (10) days of the shelter care hearing, in
violation of Rule 1404 of the Rules of Juvenile Procedure?
II. Did the trial court err in accepting testimony from witnesses
when the Agency failed to provide a Notice of Agency Witnesses,
in violation of Rule 1340(B)(1) of the Rules of Juvenile
Procedure?
III. Did the trial court err by eliciting testimony from the child
without placing the child under oath or soliciting testimony
concerning the competency of the child to testify?
IV. Did the trial court err by finding [CYS] met its burden of
proof to find the children dependent, remove the children from
the Mother’s home, deny visitation to both parents, and fail to
provide either parent a plan for reunification with the [C]hildren?
a. Did the trial court err by finding the Agency met its
burden to find the [C]hildren dependent when Father and
Mother exercised appropriate parental care and control
over the [C]hildren?
b. Did the trial court err by finding the Agency met its
burden by showing it was clearly necessary to remove the
[C]hildren from Mother’s home when there were feasible
alternatives available to the Agency?
Father’s Brief at 5.
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We address the issues raised by Mother and Father together, as they
are interrelated. Mother and Father challenge the adjudications of
dependency with regard to the Children. Additionally, Mother and Father
argue that their due process rights under both the United States and
Pennsylvania Constitutions have been violated.
Mother and Father challenge the trial court’s orders adjudicating the
Children dependent. Mother and Father argue that the trial court erred by
finding the Children dependent, removing the Children from Mother’ home,
denying visitation to both parents, and failing to provide either parent with
plans for reunification with the Children. Further, Mother argues that the
trial court erred by relying on testimony from the caseworker that stated
Mother was told Father could not live with her when Mother had legal
custody of the Children and there was no order prohibiting Mother from
parenting.
Our Supreme Court set forth our standard of review for dependency
cases as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
In a change of goal proceeding, the best interests of the child, and not
the interests of the parent, must guide the trial court, and the parent’s rights
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are secondary. In re A.K., 936 A.2d 528, 532-533 (Pa. Super. 2007). The
burden is on the Agency to prove the change in goal would be in the child’s
best interests. In the Interest of M.B., 674 A.2d 702, 704 (Pa. Super.
1996) (citing In Interest of Sweeney, 574 A.2d 690, 691 (Pa. Super.
1990). In contrast, in a termination of parental rights proceeding, the focus
is on the conduct of the parents under 23 Pa.C.S.A. § 2511. In re M.B.,
674 A.2d at 705.
Section 6302 of the Juvenile Act defines a “dependent child” as a child
who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care
or control may be based upon evidence of conduct by the
parent, guardian or other custodian that places the
health, safety or welfare of the child at risk, including
evidence of the parent’s, guardian’s or other custodian’s
use of alcohol or a controlled substance that places the
health, safety or welfare of the child at risk[.]
42 Pa.C.S.A. § 6302(1) (emphasis added).
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child” further:
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper
parental care and control, and if so, whether such care and
control are immediately available.
Id. at 872 (internal quotations and citations omitted); see also In re J.C.,
5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he burden
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of proof in a dependency proceeding is on the petitioner to demonstrate by
clear and convincing evidence that a child meets that statutory definition of
dependency.” G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the
court finds that the child is dependent, then the court may make
an appropriate disposition of the child to protect the child’s
physical, mental and moral welfare, including allowing the child
to remain with the parents subject to supervision, transferring
temporary legal custody to a relative or public agency, or
transferring custody to the juvenile court of another state. 42
Pa.C.S. § 6351(a).
Id. at 617.
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
(1) [t]he court shall conduct a permanency hearing for
the purpose of determining or reviewing the permanency
plan of the child, the date by which the goal of
permanency for the child might be achieved and whether
placement continues to be best suited to the safety,
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protection and physical, mental and moral welfare of the
child. In any permanency hearing held with respect to
the child, the court shall consult with the child regarding
the child’s permanency plan in a manner appropriate to
the child’s age and maturity. . . .
(2) If the county agency or the child’s attorney alleges
the existence of aggravated circumstances and the court
determines that the child has been adjudicated
dependent, the court shall then 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 child’s parent, guardian or custodian or to
preserve and reunify the family shall be made or continue
to be made and schedule a hearing as provided in
paragraph (3).
42 Pa.C.S.A. § 6351(e).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(f) Matters to be determined at permanency hearing.-
At each permanency hearing, a court shall determine all of
the following:
(1) The continuing necessity for and appropriateness of
the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
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(5) The likely date by which the placement goal for the
child might be achieved.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the
Commonwealth, whether the placement continues to be
best suited to the safety, protection and physical, mental
and moral welfare of the child.
***
(9) If the child has been in placement for at least 15 of
the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable
efforts to prevent or eliminate the need to remove the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family need not be made or
continue to be made, whether the county agency has filed
or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified
family to adopt the child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to
the child’s parent, guardian or custodian within the
time frames set forth in the permanency plan.
***
(f.1) Additional determination. — Based upon the
determinations made under subsection (f) and all relevant
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evidence presented at the hearing, the court shall determine one
of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return
of the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent,
guardian or custodian is not best suited to the safety,
protection and physical, mental and moral welfare of the
child.
(3) If and when the child will be placed with a legal
custodian in cases where return to the child’s parent,
guardian or custodian or being placed for adoption is not
best suited to the safety, protection and physical, mental
and moral welfare of the child.
(4) If and when the child will be placed with a fit and
willing relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
(5) If and when the child will be placed in another living
arrangement intended to be permanent in nature which is
approved by the court in cases where the county agency
has documented a compelling reason that it would not be
best suited to the safety, protection and physical, mental
and moral welfare of the child to be returned to the
child’s parent, guardian or custodian, to be placed for
adoption, to be placed with a legal custodian or to be
placed with a fit and wiling relative.
(f.2) Evidence. – Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including
evidence of the use of alcohol or a controlled substance that
places the health, safety or welfare of the child at risk, shall be
presented to the court by the county agency or any other party
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at any disposition or permanency hearing whether or not the
conduct was the basis for the determination of dependency.
(g) Court order.— On the basis of the determination made
under subsection (f.1), the court shall order the continuation,
modification or termination of placement or other disposition
which is best suited to the safety, protection and physical,
mental and moral welfare of the child.
42 Pa.C.S.A. § 6351.
Finally, the court should consider the bond between the child and his
parents, foster parents, and siblings. In re H.V., 37 A.3d 588, 594-595 (Pa.
Super. 2012).
This Court has stated:
[T]he focus of all dependency proceedings, including
change of goal proceedings, must be on the safety, permanency,
and well-being of the child. The best interests of the child take
precedence over all other considerations, including the conduct
and the rights of the parent. . . . [W]hile parental progress
toward completion of a permanency plan is an important factor,
it is not to be elevated to determinative status, to the exclusion
of all other factors.
In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007). For example, in In re
N.C., 909 A.2d 818, 823 (Pa. Super. 2006), the trial court granted a goal
change to adoption despite the fact that the mother had made substantial
progress toward completing her permanency plan.
Here, the trial court found that the Children were in CYS’s custody for
sixteen months, and that Mother and Father had an opportunity to reunify
with Children. Trial Court Opinion, 1/12/15, at 11. The trial court further
found that CYS presented clear and convincing evidence that the Children
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were without proper parental care and control necessary for their physical,
mental, and emotional health and welfare, and were therefore dependent
children under the Juvenile Act. Id. at 10. The trial court also found that
Mother and Father did not follow the trial court’s order that Father was
permitted visits with the Children only if they were supervised. Id. at 9.
While Mother and Father argue that the trial court solely based its
decision to adjudicate the Children dependent on Mother and Father’s
relationship, the trial court stated that Mother and Father’s relationship alone
was not responsible:
After being returned to Mother’s legal and physical custody
under a voluntary [FSP], Mother did not cooperate with the
Agency’s efforts to verify the safety of the children in the home.
[J.Z.] was missing occupational and physical therapy
appointments. [J.Z.]’s home exercise regimen was not being
followed. Concerns were raised about [Mother’s] possible drug
usage and she did, on one occasion, test positive for Oxycontin.
Maternal grandmother, who was assisting with all of the
household bills and expenses, moved out. [J.Z.] was struck by a
rock, reportedly thrown by Father during an argument with
Mother.
Id..
Ms. Wilbert, the occupational therapist, testified that she was to meet
with J.Z. weekly for therapy to help J.Z. use her left hand more proficiently.
N.T., 11/18/14, at 15-19. Ms. Wilbert testified that over a five month
period, J.Z. missed eight appointments, six of which were cancellations and
two of which were no-shows. Id. at 19. Ms. Wilbert also testified that
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Maternal Grandmother took J.Z. to the majority of the occupational therapy
appointments that J.Z. attended. Id. at 14-15.
Ms. Crowther, the physical therapist, testified that she was supposed
to see J.Z. once a week, and J.Z. missed seven appointments since June of
2014, four of which were cancellations and three were no shows. Id. at 21.
Ms. Crowther testified that J.Z.’s family reported to her that they had been
working with J.Z. at home on skills addressed in therapy, but during therapy
sessions, J.Z. was unable to follow through with exercises implemented by
the therapist. Ms. Crowther reported that J.Z. regressed in her ability to
walk up and down stairs, and did not progress in other areas of her physical
therapy. Id. at 28. Ms. Crowther testified that J.Z. would have progressed
in her therapy had the parents followed through with the home program and
weekly visits. Id.
Ms. Sullivan, the caseworker, testified that Father was not to reside in
the Children’s home because he did not complete his FSP, and CYS had
concerns with drug activity. Id. at 30, 34. Ms. Sullivan testified that she
was contacted by Mother’s probation and parole officer, who reported that
Mother tested positive for Oxycontin in September and did not have a
prescription. Id. at 30. Ms. Sullivan testified that Father nonetheless
continued to live in the family’s home. Id. at 33. Ms. Sullivan found men’s
clothes in Mother’s bedroom. Id. at 35. Ms. Sullivan testified that she went
to the address Father gave CYS, and a man who answered the door said
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Father did not live there. Id. at 28. Ms. Sullivan also received reports on
October 7, 2014 that Father hit J.Z. in the face with a rock. Id. Ms. Sullivan
testified that Mother and Father had sixteen months to complete their plans,
and that Mother and Father did not address the issues concerning drug and
alcohol use, stable housing, and caring for the Children’s medical needs. Id.
at 36. Accordingly, Ms. Sullivan advocated for the Children’s goal to be
adoption. Id. at 37.
The trial court found the testimony of Ms. Wilbert, Ms. Crowther, and
Ms. Sullivan to be credible; conversely, the trial court did not find Mother
and Maternal Grandmother’s testimony credible. See Trial Court Opinion,
1/12/15, at 9. Additionally, the trial court observed:
Mother offered excuses, explanations, and denials for almost
every [CYS] concern, including her failure to take [J.Z.] to her
therapy appointments, Father residing in the home, the presence
of men’s clothing in the home, [M.K.]’s diaper rash, her lack of
cooperation with [CYS], her positive drug screen, and finally
[J.Z.]’s truthfulness.
Id. at 10. The trial court found that Mother and Maternal Grandmother’s
testimony was vague as to the dates and times of many events, and
particularly regarding the frequency of Father in the home. Id. We defer to
a trial court’s determination of credibility, absent an abuse of discretion, and
discern no such abuse in the trial court’s finding credible the testimony of
Ms. Wilbert, Ms. Crowther, and Ms. Sullivan. See In re R.J.T., 9 A.3d at
1190. The evidence in this case is compelling, and supports the trial court’s
finding of dependency with the goal of adoption.
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The trial court expressly determined that the Children’s reunification
with their parents is contrary to their best interest:
[The Children] have been re-placed in the foster home that
they left in June of 2014, where [A.Z.] lives. The [trial c]ourt
found that [J.Z.] is very bonded to the resource parents; she
calls them “Mommy” and “Daddy”. Until his release from [CYS]
care in June, [M.Z.] had spent his entire life in the resource
home. The Children had been and are again well cared for in
their resource home. Their physical and emotional needs are
being met. When [J.Z.] was returned to her resource home in
November 2014, she said “Hi Mom” to her resource mother and
went to her bedroom, the same bedroom where she had resided
for the sixteen months she was previously in care. It is in their
best interest that they remain there, and that the primary goal
for both children be adoption. [The] Children need love,
support, permanency and stability. Mother and Father have
disregarded the advice and services of [CYS] and have been
generally uncooperative. Unfortunately, after sixteen months in
care, it has once again become necessary to return these
children into the legal and physical custody of [CYS]. To grant
to parents another [Child Permanency Plan] for each child with
reunification as the primary goal starts the entire process all
over again. Such a result is not fair to [the C]hildren.
Trial Court Opinion, 1/12/15, at 11-12.
In In re R.J.T., our Supreme Court instructed that we cannot find an
abuse of the trial court’s discretion where the record supports the trial
court’s decision regarding whether a change of goal to adoption is “best
suited to the safety, protection and physical, mental and moral welfare of
the child.” Id., 9 A.3d at 1190 (citing 42 Pa.C.S.A. § 6351(g)). Here, the
record supports the change of goal to adoption. We will not disturb the trial
court’s credibility determinations and weighing of the evidence.
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Next, Mother and Father argue that the trial court erred by accepting
testimony when [CYS] failed to provide notice of [CYS] witnesses, in
violation of Rule 1340(B)(1) of the Rules of Juvenile Procedure. 3 Mother
and Father assert that they were denied the ability to prepare for the
adjudication hearing, in violation of their Fourteenth Amendment due
process rights. Further, Mother and Father assert that they were unable to
3
B. Mandatory disclosure.
(1) By the county agency. In all cases, on request by a party
and subject to any protective order which the county agency
might obtain under this rule, the county agency shall disclose to
a party, all of the following requested items or information,
provided they are material to the instant case. The county
agency shall, when applicable, permit a party to inspect and
copy or photograph such items:
(a) the name and last known address of each witness to the
occurrence that forms the basis of allegations of dependency
unless disclosure is prohibited by law;
(b) the name and last known address of each witness who did
not witness the occurrence but is expected to testify;
***
(h) the names, addresses, and curriculum vitae of any expert
witness that a party intends to call at a hearing and the subject
matter about which each expert witness is expected to testify,
and a summary of the grounds for each opinion to be offered;
and
(i) any other evidence that is material to adjudication,
disposition, dispositional review, or permanency unless
disclosure is prohibited by law, and is within the possession or
control of the county agency;
Pa.R.J.C.P. Rule 1340.
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adequately prepare for the hearing because CYS did not provide Mother and
Father’s attorneys with a witness list, a police report, or therapy attendance
reports for J.Z. Mother’s Brief at 17.
“Formal notice and an opportunity to be heard are fundamental
components of due process when a person may be deprived in a legal
proceeding of a liberty interest, such as physical freedom, or a parent’s
custody of her child.” Everett v. Parker, 889 A.2d 578, 580 (Pa. Super.
2005). “Both notice and an opportunity to be heard must be afforded at a
meaningful time in a meaningful manner.” Id. (quotation marks and citation
omitted); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
“Notice, in our adversarial process, ensures that each party is provided
adequate opportunity to prepare and thereafter properly advocate its
position, ultimately exposing all relevant factors from which the finder of fact
may make an informed judgment.” Langendorfer v. Spearman, 797 A.2d
303, 309 (Pa. Super. 2002) (citation omitted).
We initially note that Mother and Father failed to raise their due
process claims during the adjudication hearing. See Trial Court Opinion,
1/12/15, at 6 (neither parent nor their attorney objected to the failure of the
Agency to provide them with a list of witnesses). “It is well settled that
issues not raised at trial are waived and cannot be raised for the first time
on appeal.” In re Adoption of D.M.H., 682 A.2d 315, 322 (Pa. Super.
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1996) (citations omitted); see Pa.R.A.P. 302(a). Accordingly, we find
waiver.
Even if Mother and Father’s due process claims were not waived, they
are without merit. Mother, Father, and the Children’s guardian ad litem
were all afforded the opportunity to cross-examine CYS’s witness. Mother
and Father’s attorneys cross-examined Officer Hatfield. The Children’s
guardian ad litem and Father’s attorney cross-examined Ms. Wilbert, J.Z.’s
occupational therapist. The trial court presented Mother’s attorney with the
opportunity to cross-examine Ms. Wilbert, but Mother’s attorney declined.
Ms. Crowther, J.Z.’s physical therapist, and Ms. Lazarus, the supervisor at
COBYS, were cross-examined by Mother’s attorney, and both the guardian
ad litem and Father’s attorney were given an opportunity to cross-examine
Ms. Crowther and Ms. Lazarus, but declined to ask any further questions.
Ms. Sullivan, Ms. Kohler, and Ms. Harris were cross-examined by the
guardian ad litem, as well as Mother and Father’s attorneys.
Because Mother and Father had adequate notice, an opportunity to be
heard, present evidence, cross-examine witnesses, and the chance to defend
themselves before a fair and impartial tribunal having jurisdiction over the
dependency case, we find no violation of Mother and Father’s guarantee to
due process. We therefore agree with the trial court that the requisites for
due process were satisfied, and that Mother and Father’s claims lack merit.
See In re G.P.-R., 851 A.2d 967, 975 (Pa. Super. 2004) (concluding that
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the father’s due process rights were protected as he was represented by
counsel, afforded an adjudication hearing, regular review hearings, and a
hearing on his exceptions to the goal change and on the petition to
terminate his parental rights, and he had the opportunity to present
evidence).
Mother and Father additionally contend that the trial court erred by
eliciting testimony from J.Z. without placing J.Z. under oath or soliciting
testimony concerning J.Z.’s competency to testify. Mother’s Brief at 21;
Father’s Brief at 21. Pennsylvania Rule of Civil Procedure 1915.11(b)
directs, inter alia, that a trial court conduct in camera interviews with
children in the presence of counsel and provides counsel “the right to
interrogate the child under the supervision of the court.” Pa.R.C.P.
1915.11(b). While Mother and Father now assert the trial court relied on
J.Z.’s statements that were made without J.Z. taking an oath, again, they
failed to raise this objection with the trial court. “It is well settled that
issues not raised at trial are waived and cannot be raised for the first time
on appeal.” In re Adoption of D.M.H., supra; Pa.R.A.P. 302(a). Thus, the
issue is waived.
Mother and Father nonetheless argue that J.Z. was not competent to
testify because she was four years old at the time of her testimony, and
Maternal Grandmother and Mother’s testimony was different than J.Z.’s
testimony.
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The law in this Commonwealth is that the court must conduct a
“searching judicial inquiry” into a potential witness’s mental
capacity if the proposed witness is under fourteen years old.
The competency investigation is to determine if the proposed
witness has the: (1) capacity to observe or perceive the
occurrence with a substantial degree of accuracy; (2) ability to
remember the event which was observed or perceived; (3)
ability to understand questions and to communicate intelligent
answers about the occurrence, and (4) consciousness of the duty
to speak the truth. However, [b]ecause a trial judge has a
superior opportunity to assess the competency of a witness, an
appellate court should virtually never reverse a competency
ruling. Thus, the determination of a witness’s competency to
testify will not be disturbed on appeal absent a clear abuse of
discretion.
In Interest of C.L., 634, 648 A.2d 799, 800-01 (Pa. Super. 1994) (citations
omitted) (quotations omitted). Again, Mother and Father did not object at
the adjudication hearing. “It is well settled that issues not raised at trial are
waived and cannot be raised for the first time on appeal.” In re Adoption
of D.M.H., supra; Pa.R.A.P. 302(a).
Even if this issue was not waived, it is without merit. The trial court
explained:
J.Z. was approximately four and one half years of age at the
time of the hearing. As with all children, the [trial c]ourt was
not sure what, if any, information she could provide. However,
after listening and observing her respond to questions, the [trial
court] was satisfied that she had the cognitive ability and mental
capacity to remember and relate her observations as to whom
resided in the home and what was going on in the household.
While she appeared anxious and guarded, and did not answer
some questions, her observations and the information she
relayed, and the manner in which she relayed it, was what you
would expect from a child her age. For the most part, she
responded appropriately to questions and provided information
about basic daily life while in her Mother’s home, Father’s
presence in the home, and the role that her grandmother and
great grandmother played in her life. The [trial court] found
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[J.Z.] to be credible and the information reliable. She confirmed
her statements made to the caseworker, the statements made
by Mother and Father to the police, and corroborated what the
neighbors told the police about Father’s presence in the home.
The [trial court] did not find it necessary that the child be
sworn in, given her age and the nature of the information
provided. No objection was raised at the time of the hearing by
the attorneys representing Mother and Father, who were present
in chambers at the time that J.Z.’s testimony was taken and had
the opportunity to question the child. Furthermore, this [trial
court] did not feel, under the circumstances as presented, the
need to question J.Z. to determine if she knew the difference
between telling the truth and lying.
Trial Court Opinion, 1/12/15, at 7-8. The trial court, not the appellate court,
bears the responsibility of evaluating the credibility of the witnesses and
resolving any conflicts in the testimony. In re R.J.T., supra. As those
determinations are well-supported by the record, we would find that Mother
and Father’s claim regarding J.Z.’s testimony is without merit.
Finally, Mother and Father have asserted that the trial court erred by
failing to hold the adjudication hearing within ten days of the shelter care
hearing, in violation of Rule 1404 of the Rules of Juvenile Procedure. 4 While
Mother and Father now claim the trial court erred by failing to hold the
4
Rule 1404. Prompt Adjudicatory Hearing
A. Child in custody. If a child has been removed from the home,
an adjudicatory hearing shall be held within ten days of the filing
of the petition.
B. Child not in custody. If a child has not been removed from the
home, the adjudicatory hearing shall be held as soon as practical
but within forty-five days of the filing of the petition.
Pa.R.J.C.P. 1404.
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adjudication hearing within ten days of the shelter care hearing, they failed
to raise this objection in the trial court, once more effecting waiver. “It is
well settled that issues not raised at trial are waived and cannot be raised
for the first time on appeal.” In re Adoption of D.M.H., supra; Pa.R.A.P.
302(a).
Even if this issue was not waived, we agree with the trial court’s
assessment. The Children were placed in foster care on November 4, 2014.
The shelter care hearing was held on November 5, 2014, and the
adjudication hearing was held on November 18, 2014. The trial court
explained the brief delay:
[B]oth parents were represented by court appointed counsel at
the time of the initial Shelter Care hearing and at the time of the
Adjudication Disposition hearing. November 18, 2014 was the
first court date when the parents’ long standing appointed
attorneys and guardian, and this Judge, who has been handling
this family since 2012, were available.
Trial Court Opinion, 1/12/15, at 6.
Given the foregoing, we discern no abuse of discretion by the trial
court, and therefore affirm the orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
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