Opinion
1427 EDA 2023 1428 EDA 2023 1429 EDA 2023 1430 EDA 2023 1432 EDA 2023 J-S40017-23
01-12-2024
IN THE INTEREST OF: U.G., A MINOR APPEAL OF: K.V., MOTHER IN THE INTEREST OF: N.G., A MINOR APPEAL OF: K.V., MOTHER IN THE INTEREST OF: S.G., A MINOR APPEAL OF: K.V., MOTHER IN THE INTEREST OF: A.G., A MINOR APPEAL OF: K.V., MOTHER IN THE INTEREST OF: S.G., A MINOR APPEAL OF: K.V., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered May 30, 2023 In the Court of Common Pleas of Pike County Civil Division at No(s): CP-52-DP-0000023-2021, CP-52-DP-0000024-2021, CP-52-DP-0000025-2021, CP-52-DP-0000026-2021, CP-52-DP-0000027-2021
BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J. [*]
MEMORANDUM
SULLIVAN, J.
K.V. ("Mother") appeals from the orders adjudicating dependent her three daughters, U.G. (born in November 2011), A.G. (born in August 2013), N.G. (born in August 2015), and two sons, S.G. ("Sh.G.") (born in February 2018), and S.G. ("Si.G.") (born in May 2019) (collectively, "the Children"), and finding it in their best interests and welfare to be removed from the home.[ After careful review, we affirm the dependency court's orders.
The Children's father, S.G. ("Father"), did not file separate appeals or participate in the instant appeals.
This family had been known to Pike County Children & Youth Services ("the Agency") since 2019. The Children were previously adjudicated dependent in October 2021, following allegations including deplorable home conditions and lack of parental supervision. See Order of Adjudication, 10/14/21; see also Dependency Petition, 8/17/21. In December 2021, the dependency court returned the Children to Father's legal and physical custody and terminated court supervision. See Order for Termination of Court Supervision, 12/8/21.
In September 2022, after Father returned the Children to Mother of his own accord, the Agency re-opened the case and made referrals for services due to concerns including the Children's school registration, and Mother's employment, transportation, and housing issues. The Agency established a foster care prevention plan, which, in part, aimed to address Mother's mental health issues. See N.T., 5/15/23, at 52, 54, 66, 79-81, 120-21. Mother registered the Children in school and the Head Start program, but she otherwise failed to make progress on the foster care prevention plan. See id. at 79-80.
In January 2023, the Agency learned Mother's home was scheduled for sheriff's sale that month. It scheduled a meeting aimed at assisting Mother prior to the sale. See id. at 85. At the meeting, Agency caseworker Courtney Kelly ("Kelly") and other Agency representatives found Mother "agitated" and "aggressive." Id. at 89. Mother refused to discuss her plan for residence after the sale, called the Agency "corrupt," and warned Agency representatives that if they did not save her home, they would not see her again. See id. at 89-90. Mother was not receptive to a discussion of mental health treatment. See id. at 90. The Agency was unable to gain access to the home thereafter. See id. at 91. The sheriff's sale of the home was rescheduled for March 2023. See id. at 97.
In March 2023, the Agency learned from the school her three daughters attended that Mother had removed them from an afterschool program and advised the school not to let them speak with the Agency, whom she referred to as "the enemy." See id. at 121-22; N.T., 3/10/23, at 6-8, 40-43. The school further reported that Mother removed her three daughters from school on March 6, 2023, and did not take them to a claimed appointment, but took them instead to a park and adjacent river to self-baptize them. Afterwards, N.G. returned to school with wet, muddy pants. See N.T., 3/10/23, at 9-11, 22-25, 41, 62-63, 72-77.
Two days later, Mother refused the Agency access to the home and the Children. Although she allowed Kelly to return that weekend with a takeout meal, Mother expressed that it would be their last meal together and the Agency would thereafter need a search warrant and/or the police to enter the home. See N.T., 5/15/23, at 95. The next day, the Agency obtained emergency protective custody of the Children and placed them in foster care. Following a shelter care hearing in March 2023, the court maintained the Agency's legal and physical custody of the Children and the Children's placement.
The Agency filed dependency petitions on March 13, 2023. The court conducted an adjudicatory hearing on May 15th and 25th, 2023. Mother and Father were each present and represented by counsel. The Children were represented by a guardian ad litem, Mark Moulton, Esquire ("Attorney Moulton").[ At the hearing, the court heard, inter alia, the testimony of Kelly, the Agency caseworker, Dr. Michael Church ("Dr. Church"), an expert in the field of psychology who conducted a parental fitness examination of Mother, and Mother, who testified on her own behalf. The court also interviewed U.G. and N.G. in camera in the presence of all counsel[
Father participated on May 25, 2023, via telephone.
At the close of the subject proceedings, Attorney Moulton argued in favor of an adjudication of a dependency adjudication. See N.T. 5/25/23, at 72. He has submitted an appellate brief in support of the Children's adjudication as dependent and removal from the home.
A parental fitness evaluation is an independent evaluation to determine if a parent has any psychological disorders, and, if so, is there reason to believe those disorders impair their parenting of the child. See N.T., 5/15/23, at 7-8.
The court took judicial notice of the Children's dependency records, which dated back to 2021. See N.T., 5/15/23, at 125.
Kelly testified that prior to the sheriff's sale of her house, she told Mother in January 2023, that an organization named Family Promise could provide rental assistance or connect her to housing resources. See N.T., 5/15/23, at 88. Mother demanded the organization pay several thousand dollars to satisfy her mortgage, which it could not do. See id. at 88-89. Mother also declined to plan for after the sheriff's sale, saying she would receive Divine assistance. See id. at 89, 116. After the house reverted to the bank in March 2023, see id. at 97, 101, 109; see also Agency Exhibits 3 (deed) & 4 (Sheriff's return), Mother made the unsupported assertion she would be able to buy the home back. See N.T., 5/25/23, at 29, 35-36.
Kelly also testified about her concern that Mother had an untreated mental illness. See N.T., 5/15/25, at 110.[ Kelly told the court that during her meeting with Mother before the sheriff's sale, Mother was "aggressive and agitated," threatened to involve "the Commissioners" in their meeting, and the Agency was infringing on her rights and should get out of her life. Id. at 89-91.
During a phone call with Family Promise, Mother admitted to a mental health history. See N.T., 3/10/23, at 31. Mother testified at the hearing that she suffers from depression, anxiety, and paranoia, for which she will only take medical marijuana. See N.T., 5/25/23, at 13-14, 52, 54. Although Mother's therapist recommended continued treatment, Mother was not receiving treatment at the time of the hearing. See id. at 54-55.
Although Mother had denied the Agency access to the home, N.G. and U.G. gave in camera testimony corroborating concerns about its condition and habitability. See N.T., 5/15/23 (Children's sealed testimony), at 11-16, 30-31, 53-55, 75-77, 88 (N.G's and U.G.'s testimony describing broken sinks, caved in floors in a bathroom and the kitchen, and the presence of mold and vermin).[ N.G. and U.G. also testified that Mother hit all the children with a belt, which left a mark on at least one occasion. See id. at 16-18, 41-43, 68-69, 86, 93. On another occasion in April 2023, Mother squeezed N.G.'s hand as a form of discipline, leaving a bruise. See N.T., 5/15/23, at 61-62, 71; Agency Exhibit 2 (photograph); see also N.T., 5/15/23 (Children's sealed testimony), at 20-22. Both N.G. and U.G. stated they did not feel safe with Mother. See N.T., 5/15/23 (Children's sealed testimony), at 23-25, 46.
N.G. described the home as "halfway broken." N.T., 5/15/23 (Children's sealed testimony), at 11.
Dr. Church testified Mother is not psychologically fit to parent. See N.T., 5/15/23, at 28; see also Agency Exhibit 1 (report) at 20. He testified he found concerning Mother's assertion that the Agency "kidnapped" the Children, her attempts to impede the Agency's work, and her failure to credit the Agency for all the assistance it had provided her. See N.T., 5/15/23, at 45. Dr. Church expressed concern about Mother's use of marijuana as a treatment for anxiety. See id. at 17-18, 41-42. He identified Mother's "atypical" and "paranoid" patterns and behaviors. Id. at 24-25, 45. Further, although Mother refused to cooperate with psychological testing, Dr. Church testified the clinical impression was both paranoid personality and anti-social personality. See id. at 25; see also Agency Exhibit 1 (report) at 19. In drawing his conclusion that Mother was not fit to parent, which he declared "not a difficult decision," Dr. Church cited Mother's "paranoia, antisocial characteristics, inappropriate/neglectful parenting history, contentious interpersonal behaviors, lack of empathy, aggressiveness, oppositional defiance, threatening/intimidating style, and defensiveness." Agency Exhibit 1 (report) at 20.
By orders of adjudication and disposition dated May 25, 2023, and entered May 30, 2023, the court adjudicated the Children dependent. The court further found that it was in the Children's best interest and welfare to be removed from the home, and that the Agency made reasonable efforts to prevent or eliminate the need for removal.
Mother filed timely notices of appeal, along with concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The court filed Rule 1925(a) opinions asserting that its May 30, 2023 orders adequately stated its factual findings and legal conclusions. See Dependency Court Opinions, 7/6/23, at 1 (unpaginated).[
Following the submission of an advocate's brief to this Court, counsel for Mother, James Baron, Esquire, filed motions to withdraw as counsel on both this Court's and the dependency court's dockets. This Court deferred disposition to the merits panel. In the meantime, the dependency court had granted Attorney Baron's motion to withdraw and appointed James J. Martin, II, Esquire, as new counsel.
Mother presents the following issues for our review:
1.Whether the trial court committed a reversible error of law and applied an improper burden of proof, which was something less than clear and convincing evidence, in determining that the [Children] were dependent and out of the parental care and control of [Mother]?
2.Whether the trial court committed an error of law and abuse of discretion when entering an order removing the [Children] from their residence and placing them outside of the family setting?Mother's Brief at 4 (unnecessary capitalization omitted).
We note with disapproval Mother's failure to provide citations to the record in her brief. See Pa.R.A.P. 2119(c)-(d). However, because we are able to discern the issues raised and related arguments and perceive no prejudice, we proceed with the merits of Mother's appeal.
Mother's first issue challenges the sufficiency of evidence that the Children with without proper parental care and control. This Court's standard of review for dependency cases requires that we accept the court's finding of facts and credibility determinations when supported by the record. See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). The Court is not required to accept the lower court's inferences or conclusions of law and accordingly reviews for an abuse of discretion. See id.
A dependency hearing is a two-stage process governed by the Juvenile Act ("the Act"), 42 Pa.C.S.A. §§ 6301-6365. The first stage requires the court to hear evidence on the dependency petition and to determine whether the child is dependent. See 42 Pa.C.S.A. § 6341(a). Section 6302, defines a "dependent child," in part, as one who
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 . . . that places the health, safety or welfare of the child at risk, including evidence of the parent'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). This Court has held that a child will only be declared dependent when he or she is presently without proper parental care or control, and when such care and control are not immediately available. See In Interest of R.T., 592 A.2d 55, 57 (Pa. Super. 1991). Proper parental care has been defined as "that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child." In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (internal quotation marks and citation omitted). This first stage must be found by "clear and convincing evidence," i.e., testimony that is "so direct and unambiguous as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue." Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997) (internal quotation marks and citation omitted).
If the court finds a child is dependent, it proceeds to the second stage of the dependency process, which requires an appropriate disposition based on the best interest of the child pursuant to section 6351 (a) and (b). See 42 Pa.C.S.A. § 6341(c); see also In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007). The Act's short title and statement of purposes provides that a child should be separated from his parents "only when necessary for his welfare, safety or health and in the interests of public safety. . .." 42 Pa.C.S.A. § 6301(b)(3). Additionally, the clear necessity for removal is not shown "until the hearing court determines that alternative services that would enable the child to remain with [his or her] family are unfeasible." A.B., 63 A.3d at 350 (internal citation omitted). The dependency court, not this Court, determines whether removal is clearly necessary. See In Interest of S.S., 651 A.2d 174, 177 (Pa. Super. 1994).
Mother asserts that the record is devoid of evidence the Children were in danger of serious injury. See Mother's Brief at 13. She points to the absence of any expressed concern for the Children's safety from their school or the Agency in the 2022-23 school year. See id. at 13-14. She challenges the evidence relating to the removal of her three daughters from school for the baptism and asserts that event did not reveal any danger of serious injury. See id. at 14-15. Mother also challenges the parental fitness evaluation as incomplete and the court's reliance on the sheriff's sale and potential eviction from her home. See id. at 15-16.
The court, noting its reliance on the entire record, including testimony of Mother and two of the Children, found
[o]f particular concern . . . Mother's own relation of her mental health problems, and her unwillingness to treat them other than by self-medication with cannabis, and credible evidence about conditions in the home and methods of discipline and/or punishment employed against the children.Dependency Court Opinions, 7/6/23, at 1-2.
The record supports the dependency court's findings. Kelly's testimony established Mother's mental health issues and her threats to the Agency, including that if they did not help pay her mortgage in full, it would not see her again. Additionally, Kelly's testimony established that Mother took an unhelpful view of her housing crisis, declaring that the sale of the house and her subsequent residence with the Children was "in God's hands and that he would provide for her." See N.T., 5/15/23, at 89, 116. Additionally, Dr. Church's consideration of Mother's mental health issues convinced him she was unfit to parent. Finally, two of the Children provided evidence of Mother's physical abuse, the unsafe conditions in the home, and their own fears of living with Mother. This testimony taken as a whole constitutes clear and convincing evidence that the children were without proper parental care or control, and that, in light of the impromptu baptism and other circumstances of the Children's lives, there was a need for emergency placement in order to serve the Children's best interest. See Dependency Court Orders, 5/30/23, at 2.
Mother asserts Dr. Church's his parental fitness evaluation was incomplete because it does not contain the results of the MMPI-3 in which she refused to participate. See Mother's Brief at 15. Dr. Church testified that his opinion was not based solely on Mother's lack of completion of the MMPI-3. Rather, he noted diagnostic impressions gleaned from information provided by the Agency, as well as from his interview with Mother. See N.T., 5/15/23, at 34-35, 39-40. Moreover, Mother's refusal was the reasons the evaluation was not completed.
Mother's suggestion that the Agency relied on speculation in reference to the impending sheriff's sale and any future proceedings, see Mother's Brief at 15-16, does not avail her. "[A] finding of dependency can be made on the basis of prognostic evidence and such evidence is sufficient to meet the strict burden of proof necessary to declare a child dependent." In re R.W.J., 826 A.2d 10, 14 (Pa. Super. 2003) (internal citation omitted). Further, even were this Court to review Mother's single-sentence assertion that the court did not address whether care and control was immediately available, see Mother's Brief at 17, the record establishes Mother's lack of imminent parental care and control, and that Father was also not in a position to provide immediate care and control. See N.T., 5/15/23, at 77.[ Thus, this argument is without merit. Compare In re M.L., 757 A.2d 849, 850-51 (Pa. 2000) (holding that a child is not dependent when the non-custodial parent is immediately available to provide such care).
Counsel for Father admitted that Father was unavailable as a resource. See N.T., 5/25/23, at 73.
Mother's second issue asserts the Agency failed to prove a necessity to remove the Children from her.
Concerning the disposition of a dependent child, the Act provides, in relevant part, that:
[p]rior 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; or
(3) if preventive services were not offered due to the necessity for an emergency placement, whether such lack of services was reasonable under the circumstances . . . .42 Pa.C.S.A. § 6351(b).[
Section (b)(3), not (b)(2), is applicable because the Children were initially removed from Mother by an order of protective custody.
The dependency court found that preventive services were not offered due to the need for emergency placement, and the lack of services was reasonable under the circumstances, and it was in the Children's best interests to be removed from the home. See Dependency Court Orders, 5/30/23, at 2.
This Court discerns no deficiency of proof in the need to remove the Children from the home. At the time the court removed the Children from Mother, Mother had unresolved housing and mental health issues, had barred the Agency from the home and, days before, removed two of the Children from school for a self-administered "baptism" in a river adjacent to a public park in March weather. That evidence showed that removal without resort to preventive services was proper. See 42 Pa.C.S.A. § 6351(b)(3).
For the foregoing reasons, we affirm the dependency court's orders adjudicating the Children dependent.
Orders affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.