Opinion
J.S07031/16 No. 1489 MDA 2015
03-17-2016
IN THE INTEREST OF: G.K., A MINOR APPEAL OF: A.S.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 11, 2015 in the Court of Common Pleas of Lancaster County, Juvenile Division, No(s): CP-36-DP-0000099-2015 BEFORE: BOWES, OTT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
A.S. ("Mother") appeals from the order dated August 10, 2015, and entered on August 11, 2015, granting the petition filed by the Lancaster County Children and Youth Social Service Agency ("CYS" or the "Agency") to adjudicate G.K. ("Child"), born in August of 2010, dependent, remove him from the custody of Mother, and to place him in foster care, pursuant to sections 6302 and 6351 of the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6351. We affirm.
The trial court set forth the following factual history:
[Child] was born [in August of 2010]. He is autistic and non-verbal. (N.T. 75, 7/23/2015) He has also been diagnosed with IBD [("inflammatory bowel disease")] and colitis, and suffers serious symptoms connected with those illnesses. (Id at 77) After receiving a report on January
29, 2014, the Agency investigated and learned that domestic violence was ongoing between the parents, which gave them concern for [Child]'s safety. The family was accepted for services and family service plans were developed for both Mother and [P.K. ("Father")]. . . . The parties separated in March of 2014. [Child] lives with Mother. [Father] lives with a friend in Red Lion[.] (Id at 117)Trial Ct. Op., 10/1/15, at 2 (footnote omitted).
The trial court stated:
The family, A.S. (Mother), P.K. (Father) and [Child,] age 5, first came to the attention of the Lancaster County Court on May 13, 2015 when a Petition for Protective Custody was filed, alleging that [Child] was in imminent risk of foster care placement absent protective services. A hearing was scheduled for June 4, 2015, but that hearing was then continued to July 23, 2015 at Father's request.1 A CASA [Court Appointed Special Advocate,] [Kara Good,] was appointed on June 11, 2015.Id. at 1.
1 The June 4 hearing was before another Judge who heard no testimony and the CASA was also appointed by the other judge.
The trial court stated that Mother also has a teenage son who lives elsewhere and is not part of this matter. Id. at 2 n.2.
On July 23, 2015, the trial court held a hearing on the dependency petition. At the hearing, the Agency's counsel, Attorney David Natan, Esq., Mother's counsel, Attorney Justin Gearty, Esq., Father's counsel, Attorney Daniel Shertzer, Jr., Esq., and the guardian ad litem ("GAL"), Attorney Jeffrey Shank, Esq., were present. The CASA, Kara Good, was also present, as were both parents. The Agency presented the testimony of Patrick McBrearty, a behavioral specialist employed by the Chester County Intermediate Unit who works with Child. N.T., 7/23/15, at 7-8. Next, the Agency presented the testimony of Mary Woomer, the director of the daycare where Child attends. Id. at 25. The Agency then presented the testimony of Mother as on cross-examination.
Next, the Agency presented the testimony of Teresa Nichtman, the Therapeutic Support Staff worker for Home and Community Services assigned to Child. Id. at 101-02. She interacts with Child every school day, either at daycare or in the school. Id. at 102. Ms. Nichtman also testified that she has seen Child in his home with Mother and, at times, with his behavioral specialist. Id. The Agency then presented the testimony of Father as on cross-examination. Finally, the Agency presented the testimony of Kelley Zipp, the Director of the Family Support Department of the Agency, who has been involved with Child's family. Id. at 135.
The trial court explained the subsequent procedural history as follows:
The July 23rd adjudication/disposition hearing was continued to August 3, 2015, because of insufficient time to complete testimony. On July 24th, 2015, the [c]ourt ordered that the parents could not reside together, could not engage in abusive behavior, had to cooperate with the Lancaster County Children and Youth Social Service Agency (Agency) caseworker in assessment of child safety and permit access to [Child] to the caseworker, the GAL and the CASA[,] which information was given orally at the hearing. A Petition for temporary custody was filed by the Agency on July 31, 2015. The August 3rd hearing was continued to August 10, 2015 because of insufficient time
to complete testimony. On August 4th, [Child] was moved from his emergency placement to a more permanent facility.Trial Ct. Op. at 1-3.
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After the July 23rd hearing, the [c]ourt ordered Mother and Father to make [Child] accessible to the Agency so that his safety could be assessed. Despite that order, [Child] remained inaccessible to the Agency. He was not taken to daycare/school even though Mother assured he would be[,] and Mother refused to respond to numerous telephone calls or speak to the caseworkers. The final event which led to [Child]'s being removed from Mother's house took place on July 30, 2015[,] when the caseworker saw [Child] at daycare/school. [Child] had marks on his neck and scratches on his chest. The caseworker [Kareema Hernandez] went to Mother's home and, despite clear signs that someone, probably Mother, was at home, no one would answer the door. Faced with a non-verbal child with unexplained bruises and an uncooperative parent, the worker called the police, who took [Child] into protective custody. (N.T. 10-11, 8/3/2015)
At the hearing on the dependency petition on August 3, 2015, the Agency presented the testimony of Kareema Hernandez, the Agency ongoing caseworker assigned to Child's case. N.T., 8/3/15, at 4-5. Father's counsel presented Father's testimony. He then presented the Agency's Family Support Department Director, Ms. Zipp, as on cross-examination. Mother's counsel questioned the Agency Family Support Supervisor, Susan Murray, as on cross-examination. Id. at 107.
At the hearing on the dependency petition on August 10, 2015, counsel for the Agency, Attorney Natan, noted on the record that Mother was not present. N.T., 8/10/15, at 3. Mother's counsel, Attorney Gearty, explained that Mother had come to the courthouse and had become sick, but she had left and did not wish to have the hearing continued. Id. at 3-4. Mother's counsel and Father's counsel, Attorney Caprice Hicks Bunting, conducted cross-examination of Ms. Murray, and the Agency counsel conducted re-direct examination. Mother's counsel also presented the testimony of the Agency family support caseworker who became involved with the family on July 23, 2015, Natalie Krak. Id. at 42-43. Father's counsel and the Agency counsel conducted cross-examination of Ms. Krak.
On August 11, 2015, the trial court entered the adjudication order, dated August 10, 2015, finding Child dependent under section 6302 of the Juvenile Act, as without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. The trial court also found that it was in Child's best interest to be removed from Mother's home and placed in the legal and physical custody of the Agency in his foster care placement.
On September 2, 2015, Mother filed a notice of appeal, along with a concise statement of matters errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal, Mother raises the following issues:
1. Whether the trial court erred and abused its discretion by finding the child dependent based off of 1. a prior history of domestic violence and 2. Hearsay allegations of
improper medical care with no evidence of any medical provider reporting medical negligence?Mother's Brief at 2.
2. Whether the court erred and abused its discretion by awarding the Agency physical custody of the child?
Initially, we note that Mother waived the second portion of her first issue by failing to preserve it in her brief with discussion supporting the argument and citation to case law. "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in support of a contention." Lackner v. Glosser , 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted); see also Chapman-Rolle v. Rolle , 893 A.2d 770, 774 (Pa. Super. 2006) (stating, "[i]t is well settled that a failure to argue and to cite any authority supporting any argument constitutes a waiver of issues on appeal").
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); see also In re A.B., 19 A.3d 1084, 1093-1094 (Pa. Super. 2011) (stating that this Court will not infringe upon the juvenile court's credibility determinations).
An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007). Additionally, "[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., 845 A.2d 870, 872 (Pa. Super. 2004).
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. § 6302(1) (emphasis added).
Section 6341(a) and (c) of the Juvenile Act provides in pertinent part:
(a) General rule.—After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child. . . .42 Pa.C.S. § 6341(a) and (c).
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(c) Finding of Dependency.— If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.
In In re D.A., 801 A.2d 614 (Pa. Super. 2002), a panel of this Court stated:
[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. "The question of whether a child is lacking proper parental care and control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper care or control, and if so, whether such care and control are immediately available." Id. at 619 (citation omitted).
Mother argues that the trial court erred and abused its discretion in finding Child dependent, and awarding the Agency legal and physical custody of Child. Mother asserts that there was a history of domestic violence in the parental home, but that she had sought a PFA order against Father in September of 2014, and had obtained a one-year PFA order against Father in December of 2014. She states that Ms. Nichtman, Child's TSS worker, testified that there was an instance in February of 2015 at Child's school in which Child was having behavioral issues that Ms. Nichtman attributed to Child having witnessed domestic violence. Mother asserts that Ms. Nichtman was not qualified to render such an opinion, and, in fact, agreed that Child had behavioral issues that would make it difficult to determine the cause of any particular behavioral issues.
Mother did not preserve any objection to Ms. Nichtman's testimony as improper opinion testimony on the record at the hearing on July 23, 2015. In fact, the following exchange took place when Mother's counsel, Attorney Gearty, questioned Ms. Nichtman on cross-examination.
Mr. GEARTY:
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Q All right. And the issues on February 27, would they be much different than what any other child would be expressing that was experiencing his parents divorcing?
MR. NATAN: Objection. That calls for speculation.
MR. GEARTY: She offered an opinion as to the reason why these -
THE COURT: I'm going to sustain because you haven't laid a foundation that that - this is the first I've heard of it,
and whether anything was given to the child and whether the child could understand, so I'm going to sustain.N.T., 7/23/15, at 112-13.
Mother's counsel attempted to question Ms. Nichtman for an opinion as to whether Child's reaction at school was different from the reactions of children at school whose parents were divorcing. Mother's counsel did not object to Ms. Nichtman offering an opinion; rather, he sought an opinion from the witness, and the court sustained the objection raised by the Agency's counsel. Thus, Mother has waived her argument that Ms. Nichtman was not qualified to give her opinion as to the cause of Child's behavior. See Pa.R.A.P. 302 (stating, "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal"). Moreover, Mother has failed to support this contention with any argument or citation to caselaw, and, therefore, has waived the issue for that reason, as well. See Chapman-Rolle , 893 A.2d at 774; Lackner , 892 A.2d at 29-30.
Further, Mother claims that, in May of 2015, when Father appeared at her home where Child resided, she enforced the PFA order by contacting the police. Mother states that all of the Agency witnesses agreed that she has provided excellent care for Child, and the behavioral specialist testified that Child was making good progress. Mother claims that she was meeting Child's particular needs, and that there was no testimony that she placed Child's safety at risk. She argues that the Agency was asking the court to find Child dependent because of future contact Mother might have with Father that could result in domestic violence and possibly have a negative effect on Child. She contends that the Agency's evidence was too speculative to satisfy the Agency's burden of proof that Child lacked proper parental care and control by clear and convincing evidence. In support of her argument, Mother cites In the Interest of T.M., 689 A.2d 954 (Pa. Super. 1997).
In In the Interest of T.M., the agency presented testimony regarding two episodes of domestic violence in the parental home. The evidence showed that there had been initial concerns about the infant child's health, but the hospital had returned the child to the mother after medical testing did not reveal any medical evidence of abuse of the child. The trial court granted the parents' joint demurrer.
On appeal by the agency, this Court found that, although there was testimony regarding the two incidents of domestic violence, there was nothing medically wrong with the child based on the medical testimony, and there was no evidence that the mother was abusive or neglectful toward the child. The panel stated that there was a lack of clear and convincing evidence that the child was without proper parental care or control as defined in the Juvenile Act. Accordingly, the panel affirmed the trial court order. Id. at 957.
Instantly, we incorporate the trial court's factual findings set forth in the trial court opinion, filed pursuant to Pa.R.A.P. 1925(a), regarding domestic violence in the parental home and the risk it posed to Child's safety from the testimonial evidence at the hearings on the dependency petition. Trial Ct. Op. at 3-11. We find In the Interest of T.M. inapposite to the present case, as the facts of that case were quite different. Here, Mother and Father have a lengthy history of domestic violence and PFA orders, yet Mother continues to allow Father to interact with her in the presence of Child, who is autistic and non-verbal. The Agency has had problems with accessing Child, especially after an Agency witness noticed unexplained bruises on his body.
Mother asserts that as she took action to enforce the PFA order against Father, it is contrary to public policy to use the May 2015 incident as a factor in the dependency proceedings. Mother's Brief at 9-10. Mother contends, without any case support, that a parent is not under any obligation to provide access to the home to the government, and to allow the government to interfere with their ability to parent. Id. at 11. She nevertheless asserts that there were no concerns with the home during earlier visits and no unexplained bruises or other concerns with Child noticed during any visit. Id. Mother argues that Ms. Zipp's testimony regarding the concern of what might happen in the future is inappropriate, as the standard is whether the child is currently without proper parental care and control. Id. Mother posits, "[i]f the standard was based off of what may or may not happen in the future, then nearly every child in this Commonwealth could end up being considered to be a dependent child." Id. Accordingly, Mother argues that the Agency failed to establish that Child was presently without proper parental care and control by clear and convincing evidence. Id. at 7-12.
The trial court rejected Mother's argument, explaining as follows:
The [c]ourt finds that [Child] is a dependent child. He is autistic, with severe deficits in his understanding of his world and his interaction with the people around him. His behavior and his emotions can be abnormally volatile if he finds his surroundings disturbing. The testimony establishes that his parents' violent behavior qualifies as one of these disturbing triggers and that his parents have been involved in such behavior for a number of years. In fact, the TSS's testimony drew a solid connection between a fight between Mother and Father and abnormal and disruptive behavior on [Child]'s part.
If the parents are separated and one of them is appropriate to care for [Child], then the child cannot be found to be dependent. The court must therefore look at them separately in order to determine which, if either, is capable of providing the proper parental care as contemplated by the statute above. The [c]ourt does not consider Father to be available as an appropriate parent, finding him to be a non-credible witness in relation to his denials of his violent behavior, his drinking, and his lack of contact with the Agency. To accept Father's testimony, the [c]ourt would have to believe that only Father is telling the truth and all other witnesses describing his behavior are lying. That is not a logical or acceptable conclusion.
The [c]ourt does not find Mother to be an appropriate parent under the statutory definition of dependency. [Child] is clearly a very difficult child to parent. He is easily emotionally distressed, has frequent "melt-downs", cannot communicate verbally, needs a TSS with him in school constantly. Both Mother and Mr. McBreaty told the court that [Child] needs a well[-]structured, calm, familiar environment to keep his behavior on an even keel. This is one of the arguments Mother used against putting [Child] in foster care - that moving him around would put him in a
confusing, unstable, unfamiliar setting. Despite this knowledge, for years Mother has allowed herself to be the victim of Father's violence, sometimes in [Child]'s presence, which would disturb [Child] painfully and initiate violent and aberrant behavior in him. For years she has filed and withdrawn multiple Protection From Abuse petitions against Father, thereby allowing Father to initiate situations disturbing to [Child]. She allowed her last PFA order to be modified without court involvement, so that she and Father could be in [Child]'s hospital room alone, despite a history that establishes their being together as fostering a hostile and risky situation for the child. She was complicit in Father's violations of the PFA Order. This is a mother who places her own desire for contact with her husband above her child's vital need to calm and quiet. This is a mother who did what she wanted to such an extent that [Child] was placed in threatening situations. This is a mother who, knowing her son could remain in foster care without her cooperation, with the Agency, decided not to cooperate. Mother cannot be trusted to do the right thing for [Child]'s physical and emotional health. Her behavior puts [Child] in the position of a child without the proper parental care necessary for his physical, mental or emotional health. Mother needs to take action to place herself in the position of being able to care for [Child]. Without that action, [Child] is at risk while living with her.Trial Ct. Op. at 12-14, 17.
The requirements of the definition of "dependent" have been met. [Child] has been without appropriate parenting from both parents defined in the statute. [Child] is a dependent child.
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For the reasons set out above, [the trial court] affirms its decision that [Child] is a dependent child, and that the evidence appropriately indicates that it was in his best interest to remove him from his parent's [sic] home.
After careful review, we find no merit to Mother's argument, as Child's physical, mental, and emotional health or morals is the concern of the court in the dependency proceedings. We find that there was sufficient, clear and convincing evidence to support the trial court's determination, in its August 10, 2015 adjudication, that Child was without proper parental care and control, that such proper parental care and control was not immediately available from his parents, and that he should be adjudicated a dependent child. The trial court's findings of fact and credibility determinations are supported by the record, as are the trial court's inferences and conclusions of law regarding the need to adjudicate Child dependent and remove him from the care and custody of his parents for his safety. See In re R.J.T., 9 A.3d at 1190.
In her second issue, Mother argues that even if Child was properly adjudicated dependent, Child's best interests would be served by ordering the physical custody of Child be with her because of his special needs. Mother states that she had been Child's caregiver for Child's entire life. She asserts that the Agency did not seek physical custody until after a caseworker noted a brush burn on his neck. Mother states that the Agency did not take Child to a physician, and Father explained the injury. Mother complains that Child needs consistency and that removing Child from her—Child's primary caregiver, who has ensured his safety—would be contrary to Child's best interests. Mother's Brief at 4. Mother cites In the Interest of Pernishek , 408 A.2d 872 (Pa. Super. 1979), in support of her contention that a dependent child shall not be removed from his parents unless such separation is "clearly necessary." Mother's Brief at 13.
Regarding the placement of a child, a panel of this Court stated:
When a child is adjudicated dependent, the child's proper placement turns on what is in the child's best interest, not on what the parent wants or which goals the parent has achieved. See In re Sweeney , 393 Pa. Super. 437, 574 A.2d 690, 691 (1990) (noting that "[o]nce a child is adjudicated dependent. . . the issues of custody and continuation of foster care are determined by the child's best interests"). Moreover, although preserving the unity of the family is a purpose of the Act, another purpose is to "provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S. § 6301(b)(1.1). Indeed, "[t]he relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child." In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263, 1267 (1983).In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
Here, the trial court addressed Mother's argument with evidence supporting its conclusion that Mother "cannot be trusted to do the right thing for [Child]'s physical and emotional health." Trial Ct. Op. at 13-14. The record supports the trial court's conclusions and inferences. Thus, in view of our standard of review as set forth in In re R.J.T., 9 A.3d at 1190, we cannot disturb the findings and credibility assessments of the trial court. We find no abuse of discretion in adjudicating Child dependent, and removing him from the care and custody of Mother, maintaining him in foster care placement. Accordingly, we affirm the trial court order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/17/2016
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