In the Int of: N.R., Appeal of: C.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
N.R., A MINOR : PENNSYLVANIA
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APPEAL OF: C.S., MOTHER : No. 200 EDA 2020
Appeal from the Order Entered January 3, 2020
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0001362-2013
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
A.S., A MINOR : PENNSYLVANIA
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APPEAL OF: C.S., MOTHER : No. 201 EDA 2020
Appeal from the Order Entered January 3, 2020
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000329-2016
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
I.R., A MINOR : PENNSYLVANIA
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APPEAL OF: C.S., MOTHER : No. 202 EDA 2020
Appeal from the Order Entered January 3, 2020
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0001648-2013
J-S27016-20
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
J.R., A MINOR : PENNSYLVANIA
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APPEAL OF: C.S., MOTHER : No. 203 EDA 2020
Appeal from the Order Entered January 3, 2020
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0001869-2014
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 7, 2020
In these consolidated appeals, Appellant, C.S. (Mother), appeals from
the permanency review orders entered in the Philadelphia County Court of
Common Pleas, adopting the recommendations of the hearing officer that,
inter alia: four of her children,1 N.R. (born June 2013), A.S. (born November
2015), I.R. (born April 2010), and J.R. (born August 2014) (collectively, the
Children), be committed to the Philadelphia Department of Human Services
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* Former Justice specially assigned to the Superior Court.
1Mother has three additional children, who are not the subject of these
matters, who reside with their father.
Additionally, we note the parental rights of the fathers of N.R., I.R., and
J.R. were previously terminated. See Decrees of Involuntary Termination of
Parental Rights, 5/25/17; Decree of Termination of Parental Rights – Confirm
Consent, 1/10/17; see also N.T., 1/3/20, at 10-12. The whereabouts of
A.S.’s father — A.H. — are unknown. Trial Ct. Op., 2/12/20, at 20.
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(DHS); legal custody be transferred to DHS; and the Children be placed in
kinship care, pending referral. After careful review, we affirm the trial court’s
orders.
The trial court summarized the relevant procedural and factual history
as follows:
Dependency Petitions for the Children were filed by DHS on
10/01/2019,[2] after a [general protective services (GPS)] Report
dated August 1, 2019, alleged that A.S. stated that he had eaten
feces; that his older sibling hit him and told him not to disclose
the family’s business; A.S. explained he had been forced to ingest
feces because he had been having accidents [sic]. The Report
further alleged A.S. had presented the previous Monday with a
gash on his face between his eyes and his elbow was wrapped and
swollen; Mother stated that she had attempted to stop A.S. from
falling by grabbing his arm and that his elbow was pulled in the
process. Mother stated that she did not take A.S. to a doctor;
that he appeared to be in pain whenever he played or when
something touched his elbow; when asked to provide a doctor’s
note, Mother stated that A.S. was fine. The Report alleged that
Mother was visibly intoxicated on 7/31/2019, when she picked up
A.S. from school and the incident was reported to the Director of
the school. The Report was determined to be valid.
On October 15, 2019, the 4 Children were [a]djudicated
[d]ependent, and remained in Mother’s legal custody with DHS
[s]upervision. Safety plan to be implemented and Mother was
ordered to [the Clinical Evaluation Unit (CEU)] for forthwith drug
screen plus 1 random prior to next hearing date. Mother was also
ordered to have a parenting refresher course. (Orders of
Adjudication and Disposition, 10/15/2019).
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2 DHS had been involved with the family since 2012. Custody was previously
returned to Mother on May 2, 2019, and court supervision of the three older
children — N.R., I.R., and J.R. — was recently terminated on July 24, 2019,
with the Community Umbrella Agency (CUA) to offer aftercare services, if
needed. See Orders for Termination of Court Supervision, 7/24/19. Custody
Decrees 5/2/19.
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Trial Ct. Op., 2/12/20, at 15-16.
Thereafter, an initial permanency review hearing was held on January
3, 2020, before Hearing Officer Vincent Giusini, Esquire. Mother, although not
present, was represented by court-appointed counsel, William Rice, Esquire.
The Children were represented by a guardian ad litem, Scott Gessner,
Esquire.3
Significantly, Mother had a history of substance abuse and mental health
issues and did not attend therapy4 or the random drug and alcohol screen
ordered at the October 2019 adjudicatory hearing.5 N.T., 1/3/20, at 3-5. See
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3 By order entered October 2, 2019, Attorney Gessner was appointed as
guardian ad litem and/or counsel. Order Appointing Counsel, 10/2/19. We
observe that Attorney Gessner was referred to as a child advocate in the notes
of testimony. N.T., 1/3/20, at 2. Attorney Gessner did not submit a brief on
behalf of the Children to this Court.
4 Attorney Rice acknowledged that Mother did not attend therapy. N.T.,
1/3/20, at 4.
5 Attorney Rice argued that Mother’s attendance at the random screen is
disputed. N.T., 1/3/20, at 5. While he referenced Mother’s testimony to this
effect, it is unclear to which proceeding he was referring. See id. We further
observe the notes of testimony begin somewhat abruptly with DHS’s request
for temporary legal custody. Id. at 3. There is also reference to testimony
by the children’s paternal grandmother, M.V. (Paternal Grandmother) that she
could use the “help” that a kinship referral would provide. Id. at 4.
Additionally, CUA worker Beverly Jackson specifically provided testimony as
to the safety of I.R., J.R., and A.S. Although there is the suggestion that the
same was provided for N.R., this is also not included. Id. at 10-13. Upon
informal inquiry by this Court, the trial court advised that there are no
additional transcripts or volumes of testimony.
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also Exhibit DHS-2, 10/15/19; CEU Reports, 1/4/18, 9/22/14, 6/17/14,
3/21/14, 12/27/13; Exhibits M-1 to M-3, 2/11/15. Further, there was a
suggestion of Mother’s behavioral change and/or worsening behavior as
confirmed by CUA worker, Beverly Jackson. Id. at 4, 8. Moreover, Mother
was having problems paying her bills and was potentially facing eviction. Id.
at 3, 5, 8. The Children, however, resided mainly with Paternal Grandmother
through a family arrangement.6 Id. at 5-6, 10. DHS requested temporary
legal custody for Paternal Grandmother, with DHS supervision; notably,
Mother, through counsel, agreed.7 Id. at 3-5. The Children’s guardian ad
litem, Attorney Gessner, however, requested fully committing the Children to
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6 Ms. Jackson testified the Children do spend some nights with Mother:
[O]ver the break, two of the children spent two — three nights
with Mom. So, during the weekend, sometimes if Mom is not
working a day or two, the kids will stay there, two of the
children — maybe four of them, but most of the times, it’s just the
two and she’ll take them to school.
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— or pick them up early and then they stay the night and she
takes them back the next day.
N.T., 1/3/20, at 6.
7Despite DHS’ request for temporary legal custody at the permanency review
hearing, in its brief filed in this Court, DHS supports the trial court’s orders
adopting the Hearing Officer’s recommendation for fully committing the
Children to DHS custody with a kinship referral. See DHS’s Brief at 6-10.
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DHS custody, and placing the Children in kinship care with Paternal
Grandmother. Id. at 4-5.
Hearing Officer Giusini made the following recommendations: that the
Children be fully committed to DHS, legal custody be transferred to DHS, and
the Children be placed in kinship care, pending referral. Mother was further
referred to CEU to submit to three random drug and alcohol screenings and
Behavioral Health Services (BHS) for consultation/evaluation. Visitation with
Mother was to be liberal and unsupervised. However, visitation was to be
supervised by Paternal Grandmother if Mother tested positive or failed to
appear for a drug and alcohol screen. Recommendation – Permanency
Review, 1/3/20, at 1-2; N.T., 1/3/20, at 6-9. The trial court adopted these
recommendations by orders the same day.8 Recommendation – Permanency
Review, 1/3/20, at 2.
On January 9, 2020, Mother, who was still represented by Attorney Rice,
filed timely, pro se notices of appeal and Pa.R.A.P. 1925(a)(2)(i) concise
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8 We note Mother did not file a motion, pursuant to Pennsylvania Rule of
Juvenile Court Procedure 1191, challenging the hearing officer’s
recommendations. See Pa.R.J.C.P. 1191(C) (“A party may challenge the
juvenile court hearing officer’s recommendation by filing a motion with the
clerk of courts within three days of receipt of the recommendation.”).
However, this Court has held “Rule 1191 does not require a party to challenge
a master's recommendation” and that the lack of such a motion does not waive
the issue for our review. In Interest of J.P., 178 A.3d 861, 865 (Pa. Super.
2018).
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statements of errors complained of on appeal.9 On January 15th, the trial
court ordered Attorney Rice to file amended Rule 1925(b) statements within
ten days. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011)
(Court’s long-standing policy precludes hybrid representation). Attorney Rice
complied, filing the statements with this Court on January 23rd. This Court
sua sponte consolidated Mother’s appeals on February 7th.
On appeal, Mother raises the following issue for our review:
The trial court erred and/or abused its discretion by entering
orders on January 3, 2020, accepting the recommendations of
Juvenile Court Hearing Officer Vincent Giusini committing Mother’s
children to [DHS]. More specifically, [DHS] has failed to meet its
burden to demonstrate that removal from Mother’s care was a
clear to [sic] necessity.
Mother’s Brief at 7. Mother argues the trial court erred in accepting the
recommendation of the hearing officer “despite the fact that the basis of the
recommendation was based largely upon speculation.” Id. at 13. She
contends, “The evidence or lack thereof did not rise to the level of a clear
necessity which is required to remove a child from the care of a parent.” Id.
No relief is due.
We observe our standard of review for dependency cases:
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9 See In re H.S.W.C.-B & S.E.C.-B., 836 A.2d 908, 911 (Pa. 2003) (with
regard to dependency matters, “[a]n order granting or denying a status
change, as well as an order terminating or preserving parental rights, shall be
deemed final when entered”); Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.
Super. 2013) (“An appeal lies only from a final order, unless permitted by rule
or statute.”).
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[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) (citations omitted). As we have
stated:
In addition[, a]lthough bound by the facts as found by the trial
court and supported by the record, we are not bound by the trial
court’s inferences, deductions, and conclusions therefrom; we
must exercise our independent judgment in reviewing the court’s
determination, as opposed to its findings of fact, and must order
whatever right and justice dictate. We review for an abuse of
discretion. Our scope of review, accordingly, is of the broadest
possible nature. It is this Court’s responsibility to ensure that the
record represents a comprehensive inquiry and that the hearing
judge has applied the appropriate legal principles to that record.
Nevertheless, we accord great weight to the court’s fact-finding
function because the court is in the best position to observe and
rule on the credibility of the parties and the witnesses.
In re K.J., 27 A.3d 236, 241 (Pa. Super. 2011) (citation omitted).
Section 6351 of the Pennsylvania Juvenile Act, “Disposition of
dependent child,” provides in relevant part:
(a) General rule.—If the child is found to be a dependent
child the court may make any of the following orders of disposition
best suited to the safety, protection and physical, mental, and
moral welfare of the child:
(1) Permit the child to remain with his parents, guardian,
or other custodian, subject to conditions and limitations as
the court prescribes, including supervision as directed by the
court for the protection of the child.
(2) Subject to conditions and limitations as the court
prescribes transfer temporary legal custody to any of the
following:
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(i) Any individual resident within or without this
Commonwealth, including any relative, who, after study
by the probation officer or other person or agency
designated by the court, is found by the court to be
qualified to receive and care for the child.
(ii) An agency or other private organization licensed
or otherwise authorized by law to receive and provide
care for the child.
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(b) Required placement findings.—Prior to entering any
order of disposition under subsection (a) that would remove a
dependent child from his home, the court shall enter findings on
the record or in the order of court as follows:
(1) that continuation of the child in his home would be
contrary to the welfare, safety or health of the child; and
(2) whether reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need for
removal of the child from his home, if the child has remained
in his home pending such disposition[.]
42 Pa.C.S. § 6351(a)(1)-(2), (b)(1)-(2).
Further, as to the removal of a child, this Court has explained:
. . . The Juvenile Act has been interpreted to allow for the removal
of a child from the custody of his parents only where there is clear
necessity for such removal. Such necessity is implicated where
the welfare of the child demands that he be taken from his
parents’ custody. We note that a decision to remove a child from
his or her parents’ custody must be reconciled with the
“paramount purpose” of preserving family unity. This
reconciliation may require that temporary custody of the child be
given to someone other than the parents until such time as the
welfare of the child no longer demands that he be separated from
his parents. Ultimately, a hearing court is given broad discretion
in meeting the goal of entering a disposition “best suited to the
protection and physical, mental, and moral welfare of the child.”
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In Re S.M., 614 A.2d 312, 314-15 (Pa. Super. 1992) (citations omitted).
In support of its adoption of the hearing officer’s recommendations, the
trial court reasoned:
If the court finds that [a] 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).
Mother alleges that the Trial Court erred in removing the
Children from Mother’s care and committing to DHS. This Court
disagrees. Once the adjudication of dependency was made as to
these Children on October 15, 2019, this Court continued the
family agreement between Mother and Paternal Grandmother and
ordered DHS Supervision. Mother was ordered forthwith to CEU
for a drug screen plus 1 random drug screen prior to the next
Court date, and also a parenting refresher course.
However, at the next hearing, on January 3, 2020, a Court
Hearing Officer heard credible, persuasive testimony that Mother
failed to attend the drug screen ordered on 10/15/2019. Mother
has a history of using PCP and methamphetamines and she has a
history of displaying violence and hostility. Therefore, the Court
Hearing Officer expressed his concerns about Mother and
concluded it was clear and necessary for the welfare of the
Children to be in placement with Paternal Grandmother.
Clear necessity of removal is implicated where the welfare of
a child demands that he or she be taken from their parents’ care.
In re S.M., 614 A.2d 312 [(Pa. Super. 1992)]. Once adjudication
of dependency has been made and the court finds clear necessity
for removal of the child from custody of parent, the court will
award custody based on [the] best interest of the child. Walker
v. Johnson, [891 F. Supp. 1040 (M.D. Pa. 1995)].
This Court found persuasive, sufficient evidence was
presented at the Permanency Review Hearing to support the
finding that conditions were present that necessitated placement
of the Children in Foster Care, specifically, Kinship Care with
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Paternal Grandmother, and that it would be contrary to their
welfare and best interests to have them remain with Mother at
this time.
Beverly Jackson, CUA Worker, testified that the two of the
four children were spending three nights with Mother, usually over
the weekends, but if they are school days, then Mother will take
them to school. She stated the CUA is uncomfortable with
unsupervised visits for Mother if temporary legal custody is given
to Paternal Grandmother, however, Ms. Jackson stated there are
no safety issues with Mother.[10] Further, Ms. Jackson agreed with
the proposal of Mother obtaining three drug screens because of
her behavior and possible eviction from where she is living
because of nonpayment of bills.
Ms. Jackson testified that N.R., 6 ½ years old; I.R., 9 ½ years
old; and J.R., 5 ½ years old, all attended Cramp Elementary
School. They do not have educational issues and are up-to-date
on medical and dental. She further testified that A.S., 4 years
old, has no educational issues, no developmental concerns, and is
up-to-date on medical and dental. She stated the Children were
safe in the current placement setting as of 1/2/2020. A PLS was
received for A.S.’s Father, A.H. . . . Ms. Jackson testified she was
unsuccessful in outreach to him at that address[;] therefore,
A.S.’s Father’s whereabouts remains unknown.
CONCLUSION:
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10 When examined on the issue of safety, Ms. Jackson testified as follows:
[Guardian ad litem]: Is CUA comfortable with supervised
visits? Do you think there’s any safety issues there?
MS. JACKSON: Not — not really.
[Guardian ad litem]: But they’re not really comfortable.
MS. JACKSON: But I can’t — I can’t — I can’t say. I — yeah,
I really can’t say.
N.T., 1/3/20, at 7-8.
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This Court reviewed the Findings and Recommendations of
the Juvenile Court Hearing Officer, who heard credible, persuasive
testimony from the CUA worker based on her first-hand
knowledge of the Children. The Hearing Officer also expressed
concerns regarding Mother’s history of substance abuse, her
failure to comply with the previous Court order for her to provide
a drug screen on 10/15/2019, plus 1 random drug screen prior to
the 1/03/2020 Hearing. He was also concerned about Mother’s
history of displaying violence and hostility. This Court found the
Recommendations were in the best interest of the Children and
therefore, adopted it. . . .
Trial Ct. Op. at 18-20 (citations to record omitted).
Upon review, we discern no abuse of discretion. To the extent Mother
disputes the credibility of the witnesses and weight of the evidence, no relief
is due. See In re R.J.T., 9 A.3d at 1190; In re K.J., 27 A.3d at 241. The
evidence supports the trial court’s adoption of the hearing officer’s
recommendations, as well as the court’s conclusion that full committal to DHS,
with transfer of legal custody and kinship referral, was in Children’s best
interests and best suited to their protection and physical, mental and moral
welfare. We thus affirm the trial court’s orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/07/2020
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