In the Interest of: D.S., Appeal of: S.C.

J-A29041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 944 WDA 2019
Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000117-2019
IN THE INTEREST OF: H.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 945 WDA 2019
Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000119-2019
IN THE INTEREST OF: A.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
:
: No. 946 WDA 2019
Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000120-2019
IN THE INTEREST OF: F.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-A29041-19
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
:
: No. 947 WDA 2019
Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000121-2019
IN THE INTEREST OF: G.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 948 WDA 2019
Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): No. CP-02-DP-000122-2019
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 21, 2020
S.C. (Mother) and J.B. (Father) appeal1 from the Court of Common Pleas
of Allegheny County-Family Division (trial court) orders entered on May 28,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 While Mother and Father filed separate appeals, they filed identical briefs
raising the same issues related to the dependency adjudications. Therefore,
we address their arguments together and file an identical opinion in Father’s
appeals filed at 977-981 WDA 2019.
-2-
J-A29041-19
2019, adjudicating their minor children, D.C., H.C., A.C., F.C. and G.C.
(collectively, the Children) dependent.2 They assert that the Children were
entitled to legal and best interests counsel, that the trial court abused its
discretion in admitting several pieces of evidence, and that the adjudications
of dependency were not supported by clear and convincing evidence. After
careful review, we affirm.
I.
We glean the following facts from the record. Mother is the biological
mother of H.C. (age 12), D.C. (age 8), A.C. (age 6), F.C. (age 4), and G.C.
(age 3).3 Father is the biological father of F.C. and G.C. and the stepfather to
the remaining children.4 Mother and Father are married and lived together
with the Children for several years prior to the proceedings in this matter.
In early 2019, law enforcement received a ChildLine report that D.C.
had alleged that Father had sexually abused him. This report was determined
____________________________________________
2 A separate order of dependency was entered for each child.
3 These were the Children’s ages at the time of the dependency hearings.
Mother has one other Child, D.B., who was found not to be dependent after
being placed in the care of his biological father. Additionally, the record
reveals that during the pendency of this case, Mother and Father were
expecting another child.
4 The trial court determined that Father stands in loco parentis to his non-
biological children. H.C., D.C. and A.C.’s biological father was present for the
dependency proceedings and is a participant in these appeals. At the
proceedings below, he stipulated to portions of the dependency petitions and
admitted that he could not presently take custody of his children.
-3-
J-A29041-19
to be unfounded. However, a second ChildLine report was filed shortly
thereafter alleging that H.C. had disclosed years of sexual abuse by Father.
Law enforcement initiated an investigation into this report and took protective
custody of all of the Children, placing them with their maternal grandmother.
The Allegheny County Office of Children, Youth and Families (CYF) initiated
dependency proceedings. Following a Shelter Hearing, Mother and Father
moved into maternal grandmother’s home and maternal grandmother moved
into the family home with the Children.
All of the Children were forensically interviewed regarding the
allegations. In her interview, H.C. disclosed that Father had sexually abused
her from age six through ten. H.C. also stated that she had told Mother about
the abuse in 2017 when Father continued to reside with the family. In an
interview with a CYF investigator, H.C. stated that she had told Mother a year-
and-a-half prior that Father had touched her inappropriately. After she
disclosed the abuse to Mother, Mother and Father had a conversation with
H.C. in which they told her that these were serious allegations and that it was
a “big deal” to lie.
Following H.C.’s forensic interview, criminal charges were filed against
Father, which were pending at the time of the dependency hearings. None of
the other Children disclosed any instances of abuse in their forensic interviews.
Relevant to this appeal, H.C. did not testify at the dependency hearing nor did
CYF introduce the video recording of her forensic interview. Instead, Sergeant
-4-
J-A29041-19
Eric Egli of the McCandless Police, Detective Jeffrey Gumkowski of the
Allegheny County Police, CYF caseworker Stephanie Schmidt, and forensic
interviewer Sarah Gluzman testified to the substance of H.C.’s interview. In
addition, the written reports describing H.C. and D.C.’s forensic interviews
were admitted into evidence.
Mother testified at the dependency hearing regarding the disclosure H.C.
made to her in 2017. She testified that in late 2017, she caught H.C., then
ten years old, typing a sexually explicit email on an old phone.5 Mother stated
that none of the children was permitted to use electronic devices and that H.C.
must have taken the phone from Father’s nightstand.6 Mother found nude
photos on the phone that H.C. had taken of herself that she believed H.C. had
intended to attach to the email.
When asked, H.C. initially told Mother that she was sending the email
to a boy from school. She later said that she was sending the email to a
classmate’s older brother. Mother continued to question her about the email,
and a few weeks later H.C. told Mother that Father had told her to send the
email and given her the email address, but that she did not know who the
recipient was. Mother testified that H.C. told her this while they were in the
____________________________________________
5 H.C. was allegedly answering sexual questions in the email, saying that she
liked to drink alcohol before sex to relax.
6Father testified that the phone was deactivated but he still used it to play
games.
-5-
J-A29041-19
car but refused to talk about the allegation again. Mother further testified that
H.C. never told her about any physical sexual abuse.
Mother testified that after H.C. made this allegation, she immediately
spoke to Father and told him that H.C. had said that he told her to send the
email. Father denied the allegation, and he and Mother agreed that he would
never be alone with H.C. again. Father and Mother then had a discussion with
H.C. where Mother explained that she was making serious allegations that
could ruin lives. At that point, H.C. refused to talk about the email again.
Mother testified that she did not ask Father to leave the home, did not
report the events to law enforcement or CYF and did not seek any therapeutic
services for H.C. She did not report the email because she was concerned
that H.C. could be charged with distributing child pornography. Mother
testified that she never saw Father acting inappropriately with H.C. and she
did not believe that allegation because he never had the opportunity to be
alone with H.C. She also said that she and Father had announced a new
pregnancy a few days before H.C. made her disclosure and they believed that
H.C. was not happy about the change.
Mother also testified that she did not believe H.C.’s allegations against
Father were truthful and that H.C. had a history of lying. Mother and Father
moved forward with the process of having Father adopt his non-biological
children, including H.C., in 2018. They filed the adoption petition and petition
-6-
J-A29041-19
to terminate the biological father’s parental rights in February 2019 after the
Shelter Hearing in this case had taken place.7
Based on these facts, the trial court adjudicated the Children dependent
and directed that they continue to reside with maternal grandmother. It
further ordered that Mother would be permitted to have liberal unsupervised
visits with all of the Children, including overnight visits once in-home services
were initiated. Father was ordered to have no contact with his non-biological
children and supervised contact only with his biological children.
Mother and Father simultaneously filed timely notices of appeal and
statements of errors complained of on appeal pursuant to Rule 1925, and the
trial court has filed a responsive opinion. Before addressing the merits of
Mother and Father’s challenge to dependency, we must address several
structural and evidentiary matters that go to that challenge.
II.
Mother and Father argue that the trial court committed a structural error
by not appointing a separate guardian ad litem (GAL) for H.C. and the
remaining children, as well as separate legal counsel for the children other
____________________________________________
7 Father also testified at the dependency hearing and denied all allegations of
abuse. He corroborated Mother’s testimony that after H.C.’s disclosure
regarding the email, he insisted that he never be left alone with H.C.
-7-
J-A29041-19
than H.C.8 They argue that while H.C.’s legal and best interests may have
aligned, the other children’s legal and best interests may have conflicted with
H.C.’s.9
In a dependency proceeding pursuant to the Juvenile Act, the GAL is
specifically authorized to represent both the child’s best and legal interests.
42 Pa.C.S. § 6311(b) (“The [GAL] shall be charged with representation of the
legal interests and best interests of the child at every stage of the
proceedings.”). The GAL must “[e]xplain the proceedings to the child to the
extent appropriate given the child’s age, mental condition, and emotional
condition.” 42 Pa.C.S. § 6311(b)(8); Pa.R.J.C.P. 1154(8). The GAL must then
“[m]ake specific recommendations to the court relating to the appropriateness
and safety of the child’s placement and services necessary to address the
child’s needs and safety,” while also “[advising] the court of the child’s wishes
to the extent that they can be ascertained and present to the court whatever
evidence exists to support the child’s wishes.” 42 Pa.C.S. § 6311(b)(7), (9);
Pa.R.J.C.P. 1154(7), (9).
____________________________________________
8We review such a claim for an abuse of discretion. In re J.K.M., 191 A.3d
907, 910 (Pa. Super. 2018).
9A child’s legal interests “are synonymous with the child’s preferred outcome.”
In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (plurality). In
contrast, “‘[b]est interests’ denotes that a [GAL] is to express what the [GAL]
believes is best for the child’s care, protection, safety, and wholesome physical
and mental development regardless of whether the child agrees.” Id. at 174
n.2 (quoting Pa.R.J.C.P. 1154 cmt.).
-8-
J-A29041-19
While the plain language of the statute allows for a GAL to represent a
child’s legal and best interests even when the two diverge, our Supreme Court
has suspended this provision and noted that such a divergence creates a
conflict of interest for the GAL. See In re Adoption of L.B.M., 161 A.3d 172,
175 n.4 (Pa. 2017) (plurality) (citing Pa.R.J.C.P. 1154 cmt). In such a case,
the child is entitled to separate legal interests counsel. Id.
In In re J.K.M., 191 A.3d 907, 914-15 (Pa. Super. 2018), we held that
when a sixteen-year-old child was competent to direct legal representation
and had clearly ascertainable legal interests that diverged from her best
interests in a dependency action, the trial court abused its discretion by failing
to appoint separate legal and best interests counsel. Significantly, the child
was old enough to be presumed competent and to articulate her wishes to
counsel and the court. Id. (citing Rosche v. McCoy, 156 A.2d 307, 309 (Pa.
1959)). However, we declined to hold that all conflicts require the
appointment of both a GAL and legal interests counsel. Id. at 915-16.
Here, the GAL explained to the trial court that she did not believe the
four younger children, whose ages ranged from three to eight years old, were
competent to direct representation of their legal interests.10 A team consisting
of the GAL and a child advocate specialist had met with the children to
____________________________________________
10Mother and Father concede that H.C.’s preferred outcome aligned with the
GAL’s recommendation for her best interests, so separate legal counsel was
unnecessary. See Briefs at 65-66.
-9-
J-A29041-19
determine their legal interests, which the GAL then relayed to the trial court.
The GAL told the trial court that the children, excluding H.C., “all very much
would like their mother to move back home, and they do refer to [Father] as
their father.” R.R. 614a-15a. However, she went on to explain:
They have no idea what the allegations on the table are at all.
They don’t know what the safety concerns are at all. They can’t
appreciate or comprehend what’s going on because they don’t
have that information. And I’m not saying they should have it,
but for me to ask for legal counsel to be appointed for those
children, they would need to fully understand the situation, to not
only have the facts but have the ability to comprehend and be
competent to actually be able to make me adequately represent
them. I need somebody who can form an adequate and
reasonable position so that I can represent them based on what’s
going on, and my assessment of the kids is that they are not
competent. They do not know what’s going on. There’s been no
testimony that they have been clued in to this situation.
R.R. at 615a-16a. The GAL concluded that all of the Children had the same
best interests.
The GAL fulfilled her obligations to the Children under the statute and
the trial court did not abuse its discretion in declining to appoint legal interests
counsel for the younger four children. The statute specifically contemplates
that a GAL tailor her conversations with a child “to the extent appropriate
given the child’s age, mental condition, and emotional condition.” 42 Pa.C.S.
§ 6311(b)(8); Pa.R.J.C.P. 1154(8). Here, the GAL declined to explain the
complete nature of the proceedings to the younger Children because she
believed that telling them about H.C.’s allegations against Father would create
- 10 -
J-A29041-19
more trauma.11 The younger Children, who were three to eight years old,
were considerably younger than the child at issue in J.K.M. and did not have
the same presumption of competency to direct legal representation. Even so,
the GAL explained to the court that the younger Children did want Mother to
live with them again and thought of Father as their father.
Thus, the GAL correctly balanced her duty to represent the Children’s
best interests, her duty to convey their preference to the court, and her duty
to discuss the nature of the proceedings with the Children as appropriate to
their ages, mental conditions and emotional conditions. The younger
Children’s best interests aligned with the best and legal interests of H.C., who
was the only child with a full understanding of the history that led to the
Children’s placement. Consequently, the trial court did not abuse its discretion
in declining to appoint separate legal interests counsel for the younger
Children.
III.
Next, we address Mother and Father’s challenges to several of the trial
court’s evidentiary rulings.12 They challenge the admission of hearsay
____________________________________________
11No party argues that the younger four children should have been informed
about the full details of their removal from their parents and placement with
maternal grandmother.
12“Our standard of review for evidentiary rulings by the trial court is very
narrow. In general, we may reverse only for an abuse of discretion or an error
- 11 -
J-A29041-19
statements by several witnesses who recounted H.C.’s disclosures of abuse.
They also challenge the admission of Sergeant Egli’s opinion testimony
regarding H.C.’s credibility and contend that H.C.’s disclosures in the forensic
interview were improperly admitted in violation of the best evidence rule. We
address each of these arguments in turn.
A.
H.C. did not testify at the dependency hearing; rather, CYF presented
testimony from several witnesses who recounted H.C.’s various allegations of
abuse by Father and her 2017 disclosure to Mother. First, Sergeant Egli
testified that he observed H.C.’s forensic interview and H.C. alleged that
Father had subjected her to numerous acts of sexual abuse when she was six
to ten years old. R.R. at 204a-07a. He also confirmed that H.C. stated that
she told Mother about the abuse in the past, but he did not recall whether she
described Mother’s reaction to the disclosure. R.R. at 209a. Detective
Gumkowski, who viewed a video of H.C.’s forensic interview, also testified to
these same statements. R.R. at 226a-28a. He further testified that H.C. said
that when she made the initial disclosure to Mother in 2017, Mother and Father
confronted her about the allegations and told her it was a “big deal” to lie.
R.R. at 228a. CYF caseworker Schmidt and forensic interviewer Gluzman
____________________________________________
of law.” Cruz v. Northeastern Hospital, 801 A.2d 602, 610 (Pa. Super.
2002) (citation omitted).
- 12 -
J-A29041-19
similarly testified about H.C.’s statements in the forensic interview. R.R.
250a-51a, 257a-58a, 309a-11a. In addition, the written reports describing
H.C. and D.C.’s forensic interviews were admitted into evidence. Mother and
Father objected to the admission of these statements because they were
hearsay.
This court recently addressed a similar argument in In re I.R.R., 208
A.3d 514 (Pa. Super. 2019). There, the child was adjudicated dependent after
she disclosed that she had been sexually abused by her father and that she
had told her mother about the abuse a year prior, but her mother did not
believe the allegations. Id. at 516. The child did not testify at the dependency
proceedings, but the trial court admitted into evidence a forensic interview
report of the allegations, a report from Child Protective Services (CPS), and
the testimony of a CPS caseworker. Id. at 517. We held that the statements
were properly admitted pursuant to the state of mind exception to the hearsay
rule: “Testimony as to what a child tells other people is admissible in order
to establish that child’s mental state at the time he or she made the comment,
particularly for purposes of identifying the child’s needs for therapy and
treatment.” Id. at 519 (citing In re Adoption of R.K.Y., 72 A.3d 669, 677
- 13 -
J-A29041-19
(Pa. Super. 2013) (internal quotations omitted)). Thus, the hearsay
statements were properly admitted for non-substantive purposes. Id.13
Consistent with I.R.R., H.C.’s statements in the forensic interview were
properly admitted as non-substantive evidence of her state of mind and need
for immediate treatment. As discussed infra, CYF petitioned for dependency
and the trial court granted the petitions based on Father’s criminal case and
Mother’s reaction to H.C.’s disclosure and inappropriate sexual behaviors in
2017. The hearsay statements at the hearing concerned both H.C.’s
allegations of abuse against Father and her earlier attempt to talk to Mother
about the allegations. Regardless of their truth or falsity, the statements were
relevant and admissible to demonstrate H.C.’s state of mind and ongoing need
for treatment, as well as Mother’s inaction when confronted with the
allegations. The trial court did not abuse its discretion in admitting these
statements for these non-substantive purposes.
____________________________________________
13 We reversed the adjudication of dependency and remanded for a new
hearing in I.R.R. because, while the statements were properly admitted for
non-substantive purposes, the trial court improperly relied on the truth of the
matter asserted in the statements to make a specific factual finding that the
child had been the subject of sexual abuse. Id. at 521. That factual finding
was the basis for the child’s dependency. Id. Here, however, CYF did not ask
the trial court to make a factual finding that H.C. (or any of the Children) had
been subjected to abuse. As explained in Part IV, infra, the finding of
dependency in this case was instead based on Mother’s own testimony and
her failure to protect and seek services for H.C. once she disclosed abuse and
exhibited inappropriate sexual behaviors.
- 14 -
J-A29041-19
B.
Next, Mother and Father argue that the trial court erred in allowing
Sergeant Egli to offer his opinion regarding whether H.C.’s disclosures in her
forensic interview were credible. Sergeant Egli testified that based on
witnessing over forty forensic interviews in his career and his six years of
specialized experience investigating crimes against children, he believed that
H.C. was credible.14 R.R. at 204a-06a.
Expert witnesses are precluded under well-settled law from offering an
opinion regarding a witness’s credibility, as the fact-finder is the sole arbiter
of credibility. Commonwealth v. Maconeghy, 171 A.3d 707, 778-79 (Pa.
2017). In a dependency proceeding, it is the trial court’s duty to make
determinations regarding the credibility of witnesses. In re T.M.A., 207 A.3d
375, 380 (Pa. Super. 2019) (citation omitted). This made the admission of
Sergeant Egli’s opinion regarding H.C.’s credibility improper.
____________________________________________
14It is unclear from the record whether CYF intended to offer Sergeant Egli as
an expert, and CYF did not address this point in its brief. Nevertheless, it
appears from the record that the trial court treated this as expert testimony,
as it requested that CYF lay a foundation regarding Sergeant Egli’s
qualifications and asked counsel if they would like to voir dire Sergeant Egli
on that point before admitting the testimony. R.R. at 204a-06a. Because
Sergeant Egli relied on his history, training and experience as a sexual assault
investigator in offering this opinion, it appears that it was based on
“specialized knowledge [] beyond that possessed by the average layperson.”
See Pa.R.E. 702(a), 701(c). Regardless of whether this constituted expert
testimony, however, we find the admission harmless, as discussed infra.
- 15 -
J-A29041-19
Nevertheless, the admission of this testimony was harmless. 15 As
explained in Part IV, infra, the truth or falsity of H.C.’s statements in the
forensic interview is immaterial to the adjudication of dependency.
Dependency was based on the failure to respond and seek treatment for H.C.’s
inappropriate sexual behaviors and her initial disclosure in 2017. Sergeant
Egli’s opinion regarding the credibility of H.C.’s allegations in 2019 does not
bear on this basis for dependency.
C.
Third, Mother and Father argue that the trial court abused its discretion
in admitting testimony describing the contents of H.C.’s forensic interview,
which was recorded, in violation of the best evidence rule. See Pa.R.E. 1002
(“An original writing, recording, or photograph is required in order to prove its
content. . . .”). They argue that the best evidence rule required that CYF
admit the full video of H.C.’s forensic interview into evidence rather than the
testimony of individuals who had viewed the video.
Forensic interviewer Gluzman testified at the dependency hearing and
described, based on her personal knowledge and recollection of the interview,
the disclosures of abuse H.C. made during the interview. R.R. at 309a-12a.
____________________________________________
15 An error is not harmless and the appellant is entitled to a new hearing if,
“in light of the record as a whole, an erroneous evidentiary ruling could
potentially have affected the decision.” In re A.J.R.H., 188 A.3d 1157, 1170
(Pa. 2018) (addressing harmless error in the context of a termination of
parental rights proceeding).
- 16 -
J-A29041-19
Further, Sergeant Egli observed the interview through a window and described
H.C.’s disclosures based on his observations. R.R. at 204a. Mother and Father
did not object to this testimony on best evidence grounds. Gluzman and
Sergeant Egli did not provide a description of the video; they merely recounted
their memories of the interview as they had observed it. See
Commonwealth v. Steward, 762 A.2d 721, 723 (Pa. Super. 2000) (holding
that videotape was not necessary as “best evidence” of events when an
eyewitness to the occurrence testified based on his own personal
observations). Because this testimony was properly admitted, any error in
the admission of the testimony of Detective Gumkowski and caseworker
Schmidt on best evidence grounds was harmless.16 That testimony was simply
duplicative of the properly admitted testimony of Gluzman and Sergeant Egli.
Now to the merits of the dependency adjudication.
IV.
A.
Mother and Father argue that the trial court’s determination that the
Children are dependent was not supported by clear and convincing evidence.17
____________________________________________
16 We again note that the truth or falsity of H.C.’s disclosures in the 2019
forensic interview were not the basis for the adjudication of dependency.
17 In dependency proceedings, we review the juvenile court’s order pursuant
to an abuse of discretion standard of review. In the Interest of H.K., 172
A.3d 71, 74 (Pa. Super. 2017). As such, we must accept the court’s findings
of fact and credibility determinations if the record supports them, but we need
- 17 -
J-A29041-19
The Juvenile Act governs dependency proceedings. See 42 Pa.C.S. § 6301-
6375. The Act permits a court to adjudicate a child dependent if it finds that
he or she meets the requirements of one of ten listed definitions. The Act
defines “dependent child” as follows, in relevant part:
“Dependent child.” 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[.]
42 Pa.C.S. § 6302(1).
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.
____________________________________________
not accept the court’s inferences or conclusions of law. Id. “[W]e accord
great weight to the [juvenile] court’s fact-finding function because the
[juvenile] court is in the best position to observe and rule on the credibility of
the parties and witnesses.” In re T.M.A., 207 A.3d 375, 380 (Pa. Super.
2019) (citation omitted; alterations in original). “‘An abuse of discretion is
not merely an error of judgment, but is, inter alia, a manifestly unreasonable
judgment or a misapplication of law.’” In re A.T., 81 A.3d 933, 936 (Pa.
Super. 2013) (quoting In re J.R., 875 A.2d 1111, 1114 (Pa. Super. 2005)).
- 18 -
J-A29041-19
Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5
A.3d 284, 289 (Pa. Super. 2010). As such, “the dependency of a child is not
determined ‘as to’ a particular person” but rather hinges on whether the child
meets the statutory definition of dependency. In re J.C., supra. In making
that determination, we address whether Mother or Father was available to
provide proper parental care and control. Additionally, we note that “[t]he
burden 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.” In re G.T., supra.
This court has previously affirmed adjudications of dependency when
one parent learned of sexual abuse by another parent but allowed the other
parent to remain in the home. In re M.W., 842 A.2d 425, 429-30 (Pa. Super.
2004). A child can be found dependent even without a factual finding by the
trial court that the child was the subject of abuse. In re R.P., 957 A.2d 1205,
1212-13 (Pa. Super. 2008) (citation omitted). A child may be found
dependent if her parent’s conduct “places the health, safety or welfare of the
child at risk,” even through failure to protect the child or seek treatment to
maintain the child’s physical or emotional welfare. Id. at 1213 (citing 42
Pa.C.S. § 6302(1)).
B.
In this case, the dependency petitions were not based on the truth of
any of H.C.’s disclosures. Rather, as testified to by caseworker Schmidt, the
- 19 -
J-A29041-19
“concerns would be that when [H.C.] stated that [Father] was inappropriately
touching her, [Mother] failed to protect [H.C.], she failed to get proper
services for [H.C.], and she failed to protect her other children in the event
[Father] could or could not be causing them harm as well.” R.R. at 293a-94a.
As a result, CYF contends that all of the Children were lacking proper care and
control because Mother had failed or refused to protect them when confronted
with the possibility that her husband posed a threat. CYF argues that, at
minimum, H.C.’s sexual behaviors were inappropriate for her young age and
should have prompted Mother to seek therapy or other treatment for H.C. to
determine the cause of the behaviors. The record contains clear and
convincing evidence to support these bases for dependency.18
Mother’s own testimony provided clear and convincing evidence to
support CYF’s allegations of dependency. While Mother denied that H.C. had
ever disclosed physical sexual abuse by Father, she did admit that H.C., at ten
years old, had taken nude photographs of herself on a cell phone, wrote an
email including sexually explicit content, and seemed to intend to attach the
photographs to the email. These behaviors alone, given H.C.’s young age,
should have prompted Mother to seek treatment for H.C.
____________________________________________
18Father and Mother primarily argue that the Children should not have been
adjudicated dependent because, even if Father was not able to provide them
with care and control due to the pending criminal charges, Mother was
available and capable of providing that care and control. We focus much of
our analysis on this argument.
- 20 -
J-A29041-19
When questioned, H.C. eventually stated that Father had told her to
send the email. According to Mother’s own testimony, she and Father together
confronted H.C. about the allegation, emphasizing that she should not lie
about the matter. She did not ask Father to leave the house and instead
merely agreed that Father should not be alone with H.C. in the future, so as
to prevent further allegations. At the dependency hearing, Mother expressed
reservations about H.C.’s truthfulness. She admitted that she did not seek a
forensic interview, assistance from law enforcement or any type of therapy for
H.C. following this disclosure. She did not take steps to address or determine
the cause of H.C.’s age-inappropriate sexual behaviors. Regardless of the
veracity of H.C.’s disclosure, her behaviors clearly revealed a strong need for
support and services that Mother failed to provide. Mother’s failure to take
appropriate action in response to H.C.’s disclosure was clear and convincing
evidence that she was unable to provide care and control to the Children if it
would jeopardize her relationship with Father.
Mother also insisted that Father had never been alone with H.C. in the
year-and-a-half that had passed between H.C.’s initial disclosure and the
dependency proceedings. However, the trial court found this testimony
incredible and we are bound by that credibility determination. In re M.W.,
supra, at 428 (“[W]e will accept those factual findings of the trial court that
are supported by the record because the trial judge is in the best position to
observe the witnesses and evaluate their credibility. We accord great weight
- 21 -
J-A29041-19
to the trial judge’s credibility determinations.”). Further, this argument
neglects to acknowledge that Mother still allowed H.C. to be in contact with
Father on a daily basis in the home after making her disclosure, even if the
contact was supervised.
Despite the very serious allegations H.C. had made against Father,
Mother and Father proceeded to file petitions to terminate the parental rights
of her biological father so that Father could adopt H.C., D.C. and A.C. They
took this step after the Shelter Care hearing in this case when all Children
were in protective custody and well after Mother became aware of the full
extent of H.C.’s allegations against Father. In addition, Mother continued to
reside with Father while the dependency and criminal proceedings were
ongoing despite the no-contact order that would have prevented the Children
from visiting the home while Father was present.
Mother’s actions show that she did not take seriously H.C.’s mental
health and need for therapy or treatment or her obligation to protect H.C.
when she was experiencing distress. Her reaction to the disclosures further
casts doubt on Mother’s ability to provide any of the Children with proper care
and control if it interfered with her relationship with Father. The truth or falsity
of H.C.’s allegations are ultimately irrelevant to the trial court’s determination
that Mother had consciously failed to provide care and control for her child
when she made serious allegations of abuse against Father and was exhibiting
inappropriate sexual behaviors.
- 22 -
J-A29041-19
Father’s pending criminal charges also prevented him from providing the
Children with proper care and control.19 Due to the nature of the charges that
had been filed against him, the criminal court entered a no-contact order
prohibiting Father from having any contact with his non-biological children.
As a result, Father was prevented by court order from providing H.C., D.C. or
A.C. with proper care and control. Moreover, his biological children continued
to reside in the same home with H.C., D.C. and A.C. Given the no-contact
order and the nature of the pending criminal charges, which had proceeded
past the preliminary hearing stage at the time of the dependency adjudication,
the evidence was clear and convincing that Father was also incapable of
providing care and control to any of the Children.
Finally, Mother and Father contend that the trial court abused its
discretion in adjudicating the Children dependent based on “prognostic
evidence” or “evidence that predicts a likelihood of unknown future harm
rather than actual past harm.” Briefs at 43. They maintain that there is no
evidence that the Children, particularly those other than H.C., were ever
____________________________________________
19 At oral argument, Father provided further facts regarding the current status
of his criminal case. Because these facts were not available to the trial court
at the time of the adjudication of dependency, they are not properly part of
the record on appeal and we may not consider them. See Ritter v. Ritter,
518 A.2d 319, 323 (Pa. Super. 1986). Father may present this information
for the trial court’s consideration in any future review hearings.
- 23 -
J-A29041-19
subjected to any abuse or were exposed to any risk of harm. It is uncontested
that H.C. was the only child to disclose abuse during a forensic interview. 20
Again, we note that dependency “does not require proof that the parent
has committed or condoned abuse, but merely evidence that the child is
without proper parental care.” In re R.P., supra, at 1211. “[A]cts and
omissions of a parent must weigh equally since parental duty includes
protection of a child from the harm others may inflict.” Id. at 1212. While a
child may not be found dependent merely because his or her sibling was
adjudicated dependent, the sibling’s adjudication may be relevant to the
extent that it shows that the other children are also without proper parental
care and control. In re M.W., supra, at 429. A parent’s inability to provide
care and control to one child may evidence a genuine risk to the physical,
mental and emotional health of all of the parent’s children. Id.
Here, there was no substantive evidence of abuse suffered by the
Children. However, Mother exhibited a pattern of behavior wherein she
disregarded serious allegations made by H.C. and D.C., failed to investigate
them, and failed to seek treatment when the two children exhibited
vulnerability. Again, the crux of the dependency did not depend on the truth
____________________________________________
20 While there was a ChildLine report alleging that D.C. had said his “father”
subjected him to sexual abuse, this report was determined to be unfounded.
Nevertheless, we note that upon being informed of this report, Mother said
she did not believe the allegation was true and did not think a forensic
interview was necessary. R.R. at 202a, 210a-11a.
- 24 -
J-A29041-19
or falsity of the allegations made by H.C. or D.C. Dependency was based on
the failure to react appropriately to the disclosures and to H.C.’s inappropriate
sexual behaviors in 2017. On two occasions, Mother was unwilling to
investigate allegations, seek therapy and protect the children from potential
harm when they made statements accusing Father of sexual abuse. Instead,
she chose to prioritize maintaining her relationship with Father over seeking
help for her Children.
The trial court’s finding that the Children were without proper parental
care and control was not based on hypothetical prognostic evidence that they
may in the future be subjected to abuse. The finding was based on a pattern
of failing to protect and seek treatment for the Children when confronted with
disturbing allegations and age-inappropriate behavior. The record reveals
clear and convincing evidence that no parent was immediately available to
support the Children’s mental and emotional health in this way.
Accordingly, we conclude that there was clear and convincing evidence
to support dependency.
Orders affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Kunselman files a concurring/dissenting memorandum.
- 25 -
J-A29041-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2020
- 26 -