Opinion
J-A02001-19 J-A02002-19 No. 893 MDA 2018 No. 933 MDA 2018
03-21-2019
IN THE INTEREST OF: L.J.A., A MINOR APPEAL OF: A.A., STEP MOTHER IN THE INTEREST OF: L.J.A., A MINOR APPEAL OF: J.S.A., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Dispositional Order Entered May 10, 2018
In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-DP-0000124-2017 Appeal from the Dispositional Order May 10, 2018
In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-DP-0000124-2017 BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J. MEMORANDUM BY LAZARUS, J.:
Appellants A.A. (Stepmother) and J.S.A. (Father) each filed an appeal from the order, entered in the Court of Common Pleas of Cumberland County, adjudicating L.J.A. (Child) (DOB 8/11) dependent, requiring legal custody be shared among M.M. (Mother), Father, and Cumberland County Children and Youth (the Agency), and granting Mother and Father shared physical custody. This dependency matter stems from a contentious custody battle between Mother and Father. After our review, we affirm, based, in part, on the trial court opinions authored by the Honorable N. Christopher Menges. See Trial Court Opinion, Appeal of J.S.A., 7/13/18; Trial Court Opinion, Appeal of A.A., 7/13/18.
Because Father is a practicing attorney in Cumberland County, President Judge Edward E. Guido appointed an out-of-county judge, Judge Menges, to preside over the dependency hearing. Notably, Father is the Court Appointed Mental Health Attorney for Cumberland County.
The Guardian ad litem has not filed a brief and relies upon the trial court's opinion.
Between April and August of 2017, the Agency received six referrals from Father naming Child as the victim of abuse and identifying Mother as the alleged perpetrator. Five of the referrals were deemed unfounded; the sixth, which identified someone with whom Mother associates as the alleged perpetrator, is the subject of this appeal.
The Agency scheduled home visits, and the Agency caseworker observed Child in both Mother's home and Father's home. According to the caseworker's observations, Child appeared comfortable in both homes.
In August, the Agency caseworker made a scheduled visit to Child at Father's home. The caseworker saw "circular red marks" on Child's back. Child told the caseworker she had fallen at daycare, however, Father and Stepmother insisted the marks were not from a fall but, rather, were similar to "injuries" precipitating the prior referrals.
After a shelter care hearing on August 31, 2017, Child was placed with paternal grandfather and step-grandmother. After several continuances, an amended dependency petition, and four adjudicatory hearings held between September 2017 and May 2018, the court adjudicated Child dependent. The Agency presented expert testimony from Valentins Krecko, M.D., a board certified child and adolescent psychiatrist. Dr. Krecko opined that Child's recent behavioral issues, aggression toward animals and babies, was a result of emotional abuse stemming from the custody battle. N.T. Adjudicatory Hearing, 4/18/18, at 31-34.
We note the typographical error, 2018 instead of 2017, on page 3 of the trial court's opinions with respect to the date of the shelter care hearing.
The court found that "Father has coached the child to go along with his fabricated theories. [Child] stated to her grandmother that Father had lied about her being hit with a hammer [by Mother]." Trial Court Opinion, Appeal of J.S.A., supra at 14. The court also found that "Father has created a mountain of documentation, which he intends to use as a weapon in the custody battle." Id.
The court entered a disposition order that same day, finding Child dependent and requiring legal custody of Child be shared among Mother, Father and the Agency; the court also ordered physical custody of Child be returned to Mother and ordered Father have unsupervised visitation. The order further provided:
The Juvenile Act provides:
(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:
42 Pa.C.S.A. § 6351(a). Upon a finding of clear and convincing evidence that the child is dependent, the court is authorized to remove a child from the parents' custody, or to permit the child to remain with his or her parents subject to conditions. Id .; see also In interest of C.S., 580 A.2d 418 (Pa. Super. 1990).(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.
We note that neither party challenged the trial court's granting legal custody of Child to the Agency as well as the parents, and then ordering that Child return to Mother's home. As a result, we do not have jurisdiction to address whether the Juvenile Act or the Juvenile Court Procedural Rules authorizes the trial court to grant legal custody to an agency as well as parents, especially when the court returns the child to one of the parents.
The Court hereby finds that the Child is a victim of child abuse as defined at 23 Pa.C.S. § 6303, in that [Father] and [Stepmother] are found to have been the perpetrators of emotional abuse/serious mental injury[.]Order, 5/10/18.
Father and Stepmother filed separate appeals from the order, which we have consolidated sua sponte. See Pa.R.A.P. 513. Father raises the following claims on appeal:
1. Were the due process rights of [Father] violated when the lower court made a finding of emotional abuse, when emotional abuse was not part of either of the two dependency petitions?Father's Brief, at 4.
2. Did the lower court err as a matter of law or abuse its discretion in finding emotional abuse of the Child when CYS agreed that issue was part of a collateral proceeding and not part of the herein dependency petitions and the report of January 4, 2018 never having been served upon [Father]?
Stepmother raises the following claims on appeal:
1. Whether the lower court erred as a matter of law and or abused its discretion in its order dated May 10, 2018, finding [Stepmother] was a perpetrator of emotional abuse?Stepmother's Brief, at 4.
2. Whether the lower court erred as a matter of law or abused its discretion in its order dated May 10, 2018, finding [Stepmother] was given proper notice of the Agency's intention to pursue a finding of emotional abuse?
3. Whether the lower court erred as a matter of law or abused its discretion in its order dated May 10, 2018, that adjudicated Child dependent?
4. Whether the lower court erred as a matter of law or abused its discretion in denying the motion to release Child from shelter custody?
5. Whether the lower court erred as a matter of law or abused its discretion in denying the motion to remove [Stepmother's] name as legal custodian or guardian of [Child]?
Our standard of review in dependency cases is well established; the standard this Court employs is broad. We accept the trial court's factual findings that are supported by the record, and defer to the court's credibility determinations. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule [the trial court's] findings if they are supported by competent evidence.In re R.P., 957 A.2d 1205, 1211 (Pa. Super. 2008) (citations and quotations omitted). "Although bound by the facts, 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." In re C.J., 729 A.2d 89, 92 (Pa. Super. 1999) (citing In re Donna W., 472 A.2d 635 (Pa. Super. 1984) (en banc)). The trial court's decision should not be reversed merely because the record would support a different result. In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
In her brief, Stepmother noted that she no longer wished to pursue this claim on appeal. See Stepmother's Brief, at 4.
Father claims he was denied due process when the court made a finding of emotional abuse where the dependency petitions alleged physical abuse, and, further, that the January 4, 2018 psychiatric re-evaluation, upon which the Father claims the court's finding was based, was not entered into evidence or served upon Father. We find this claim meritless.
The Juvenile Act governs state intervention in the parent-child relationship. 42 Pa.C.S.A. § 6301 et seq. In In re M.L., 757 A.2d 849, (Pa. 2000), our Supreme Court stated that 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 a private or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).Id. at 850-51. See also In re D.A., 801 A.2d 614 (Pa. Super. 2002) (en banc). The Juvenile Act defines a dependent child 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, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]42 Pa.C.S.A. § 6302 (emphasis added).
Father's argument is also meritless. The Agency filed an amended dependency petition on December 6, 2017. The amended petition alleged that Child was victim of abuse as defined at 23 Pa.C.S A. § 6303. Section 6303 defines child abuse as follows:
(b.1) Child abuse.—the term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:
23 Pa.C.S.A. § 6303(b.1)(3). Mental injury is, as pointed out by the Agency, synonymous with emotional abuse. Moreover, Father (and Stepmother) were both aware that Child was undergoing psychiatric evaluation, that the contentious custodial battle could cause mental injury to Child, and that Child's demonstration of aggression and behavioral issues could be symptoms of emotional abuse. Although Child's initial evaluation did not reveal "serious mental injury," Father's claim that he was not on notice of potential emotional abuse is implausible. See Report of Valentins F. Krecko, M.D., 9/21/17 ("[Child] is a 6-year-old girl who is embroiled in a bitter custody battle between her parents. Multiple allegations of physical abuse have remained unfounded. Regarding the concern of emotional abuse, while it is clear that the hostile and contentious relationship between [Child's] parents is not emotionally healthy, their hostility does not meet the State legal requirement that it be done 'knowingly, intentionally, and recklessly.' In addition, psychiatric evaluation of [Child] today fails to reveal chronic or severe anxiety, depression, agitation, psychosis, or reasonable fear of harm. Thus, [Child] does not meet the State definition of a child with serious mental injury. . .[Child] is too young to take sides in her parents' custody dispute and should not be asked to do so.") (emphasis added). Although Dr. Krecko's evaluation of Child did not reveal serious mental injury at that time, Father was certainly on notice that this was a significant "concern." In fact, at the hearing three months later, on December 7, 2017, Dr. Krecko testified that he was asked to perform the September 21, 2017 evaluation to determine whether Child had suffered emotional abuse as a result of the "high conflict" custody battle. N.T. Hearing, 12/7/17, at 55. He testified that 65% of children involved in these battles "will display clinical symptoms of anxiety severe enough to warrant therapy. The other potential risks include problems with attachment due to fear of abandonment or fear of being hurt, fears and phobias, physical aggression, sleep disorders, clinical depression, oppositional behavior, just to name some of them." Id. at 55-56. The court questioned Dr. Krecko as follows:
* * * *
(3) causing or substantially contributing to serious mental injury to a child though any act or failure to act or a series of such acts of failures to act.
Q: Dr. Krecko, you stated in your report and you testified today that you do not believe that [Child] has a serious mental injury, correct?Id. at 60-61.
A: Well, I said that on September 21st, and that was prior to being informed that she had actually developed some troublesome -- troubling aggression.
Q: So, the fact that it's been reported that she has now experienced some troublesome aggression, does that change your opinion as you stated it back on September 21?
A: I would have to change my opinion. I'd have to say that because [Child] is experiencing problems with self-control and with behavior that she is -- that she is experiencing evidence of serious mental injury.
We agree with the trial court that one "in [Father's] position is on notice that the issue of emotional abuse is, in fact, before the court." Trial Court Opinion, Appeal of J.S.A., supra at 7. See supra n.1; see also Matter of C.R.S., 696 A.2d 840, 842 (Pa. Super. 1997) (purpose of dependency adjudication is to correct situation in which children lack proper parental care and control necessary for their physical, mental or emotional health). In light of the foregoing, the trial court found, and we concur, that Father's claim of surprise at the February 14, 2018 hearing was disingenuous. After our review, we conclude that the record supports the court's findings, and we rely on Judge Menges' opinion to dispose of Father's claims. See Trial Court Opinion, Appeal of J.S.A., supra at 5-9.
Stepmother raises four issues on appeal. See note 3, supra . Stepmother's primary concern, in issues one and five, is that the Agency added her as "Custodian" in the December 6, 2017 amended dependency petition. See Amended Dependency Petition, supra at 1. She argues that she is neither a biological parent nor a legal guardian of Child, and, therefore, she should not have been found to be a "perpetrator of emotional abuse." Stepmother's Brief, at 13.
The trial court states that a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal was not filed along with the notice of appeal in accordance with children's fast track procedure. See Pa.R.A.P. 905(a)(2) ("If the appeal is a children's fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1)."). Our review of the record indicates that, in fact, a Rule 1925(b) statement was filed on June 1, 2018, simultaneously with the notice of appeal.
The trial court found "with absolute certainty" that Stepmother falls into the category of "other custodian," as contemplated by section 6302 of the Juvenile Act. Trial Court Opinion, Appeal of A.A., supra at 5. The record is replete with evidence that Stepmother, whom Child refers to as "mama," is considerably involved in parenting Child when Child is in Father's custody, which was 50% of the time. Stepmother prepares meals, oversees homework, attends school functions and participates in Child's therapy sessions. N.T. Hearing, 2/14/18, at 66, 190, 192-93; N.T. Hearing, 5/10/18, at 43-44, 60, 62, 111. Stepmother acts as a co-parent and, based on our review of the record, the trial court properly characterized her as "other custodian."
The Agency made a prima facie case that Stepmother was one of the perpetrators of abuse; the burden then shifted to Stepmother to demonstrate that she was not a perpetrator. See In re L.Z., 111 A.3d 1164 (Pa. 2015). Stepmother failed to do so. Based on the evidence provided over the four hearings, the court found Father and Stepmother "acted in concert to make multiple allegations of abuse against Mother." Trial Court Opinion, Appeal of A.A., 7/13/18, at 13. After our review of the record, we conclude that the trial court's finding that Stepmother was a perpetrator of the abuse is supported by competent evidence, and we affirm based upon Judge Menges' opinion. See id. at 5-6.
Next, Stepmother's argument that she was not provided notice that emotional abuse was an issue that could be determined by the court at the April 18, 2018 adjudicatory hearing is, like Father's identical claim, meritless. See discussion above, supra at 6-10.
Finally, Stepmother claims that the court abused its discretion in denying her request to release Child from shelter care. We disagree. We refer Stepmother to the decision in In re Kerr , 481 A.2d 1225 (Pa. Super. 1984) (juvenile held beyond period of time provided by statute can petition court for immediate release (which guardian ad litem did not, but Stepmother did), and if not released, can petition the Superior Court (which Stepmother did not)). Here, the court denied Stepmother's petition at the April 18, 2018 hearing. Stepmother did not petition this Court. Further, physical custody of Child has been returned to the parents, and thus this is not grounds to disturb the adjudication of dependency. See Pa.R.J.C.P. 1126 ("A child shall not be released, nor shall a case be dismissed, because of a defect in the form or content of the pleading or a defect in the procedures of these rules, unless the party raises the defect prior to the commencement of the adjudicatory hearing, and the defect is prejudicial to the rights of a party.").
We find no error or abuse of discretion. See In re R.P., supra ; In re C.J., supra. The parties are instructed to attach the trial court's opinions in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/21/2019
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