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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: G.S., FATHER No. 2582 EDA 2014
Appeal from the Order entered July 22, 2014,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No: CP-51-DP-0001440-2014
BEFORE: GANTMAN, P.J., STABILE, and PLATT*, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2015
I agree with the Majority that the trial court did not abuse its
discretion in adjudicating Child dependent pursuant to 42 Pa.C.S.A. § 6302,
and in removing her from Father’s home and committing her to DHS.
Further, I agree with the Majority that the trial court had authority under 42
Pa.C.S.A. § 6339(b) to permit DHS to consent to medical care and mental
health treatment for Child, and that Father’s issue regarding whether the
trial court must order an interstate compact for Arkansas is moot. However,
because I cannot conclude that there is a compelling state interest in
ordering Father to undergo a psychological evaluation upon pain of fine
and/or imprisonment for contempt of court, and because I believe that the
trial court erred in placing within the discretion of Child the constitutionally
protected interest of Father to visitation, I respectfully dissent.
* Former Senior Judge specially assigned to the Superior Court.
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We analyze whether, under the circumstances of this case, the trial
court could order Father to undergo a psychological evaluation upon pain of
fine and/or imprisonment for contempt of court1 pursuant to Article 1
Section 1 of the Pennsylvania Constitution, which provides:
Inherent rights of mankind All men are born equally free
and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.
Pa. Const. Art. 1, § 1. However:
Although the right to privacy is of constitutional dimension, it is
not unqualified. Privacy claims must be balanced against state
interests. Our test of whether an individual may be compelled to
disclose private matters, as we stated it in Denoncourt [v.
Commonwealth State Ethics Commission, 470 A.2d 945 (Pa.
1983),] is that “government’s intrusion into a person’s private
affairs is constitutionally justified when the government interest
is significant and there is no alternate reasonable method of
lesser intrusiveness to accomplish the governmental purpose.”
[Id.] at 949. More recently, we have stated the test in terms of
whether there is a compelling state interest. Stenger [v.
Lehigh Valley Hospital Center, 609 A.2d 796, 802 (Pa.
1992)]. In reality, the two tests are not distinct. There must be
both a compelling, i.e., “significant” state interest and no
alternate reasonable method of lesser intrusiveness.
In re D.S., 102 A.3d 486, 489-490 (Pa. Super. 2014) (citing In re T.R.,
731 A.2d 1276, 1280 (Pa. 1999) (plurality)).
1
At the conclusion of the subject adjudication hearing, the trial court
ordered Father to undergo a psychological evaluation and stated to Father
on the record in open court, in part: “Should you fail to follow my
instructions, you may be held in contempt. Contempt in this courtroom is
either $1000.00 fine and/or six months in jail. The choice is yours.” N.T.,
7/22/14, at 109.
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Instantly, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court
stated that it ordered the psychological evaluation of Father at the outset of
the case to “aid in expediting permanency for the Child.” Trial Court
Opinion, 9/12/14, at 15. Similarly, the trial court in T.R., supra, ordered
the psychological evaluation of the mother and the release of the results to
interested parties so as “to effect the proper placement of the child and to
keep families together.” T.R., 731 A.2d at 1278.
The T.R. Court disagreed with a panel of this Court that the
psychological evaluation was the least restrictive means to obtain
information about the mother’s parenting ability. The Court explained,
“where, as here, there is an abundance of information about the ability of
the parent to be a parent, there is no state interest, much less a compelling
state interest, in the ordering of parental psychological examinations.” T.R.,
731 A.2d at 1281. Under the circumstances of this case, I find the T.R.
Court’s plurality decision persuasive.
The Majority distinguishes T.R. on the basis that the trial court had the
benefit in that case of “more than two years’ observation of the mother’s
ability to parent. . . .” Majority Memorandum at 10. In this case, the trial
court ordered Father to submit to a psychological examination at the outset
of the case, upon adjudicating Child dependent. Thus, the Majority
concludes that, unlike T.R., “the record before us does not contain an
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abundance of information about Father’s ability to parent Child.” Id.
(emphasis in original). I disagree.
Specifically, the T.R. Court noted that DHS in that case correctly argued
that, “there was something terribly wrong with the mother’s ability to
parent.” T.R., 731 A.2d at 1281. The Court stated that, “even the
department agrees that there is an abundance of information in the case
about whether the children are being cared for properly and whether
the mother is a fit parent.” Id. (emphasis added).
Likewise, in this case, I would conclude that there is an abundance of
information to demonstrate whether Child is being cared for properly and
whether Father is a fit parent. Indeed, the testimonial evidence of record
supports the court’s dependency adjudication of Child and, further, supports
the court’s removal of Child from Father’s home and commitment to the
custody of DHS. Significantly, I note that, similar to this case, the trial court
in T.R. committed the subject children to the custody of DHS on testimonial
evidence independent of the results of the mother’s psychological
evaluation.
Here, as noted by the Majority, there was testimonial evidence at the
shelter care hearing and the dependency hearing involving the deplorable
conditions in Father’s home and in paternal aunt’s home, deemed unfit by
the trial court. However, there was also testimonial evidence supporting the
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court’s conclusion that Child had unaddressed mental health issues. The
trial court explained,
Specifically, Ms. Williams-Mitchum stated that the Child had been
diagnosed with schizophrenia and a psychiatric disorder.[2] Ms.
Williams-Mitchum observed first-hand the Child talking to herself
extensively and pacing back and forth. Father admitted that he
was aware of the fact that the Child talks to herself. When
Father was questioned about this, Father stated that he believed
that this behavior was normal for a thirteen-year[-]old child who
does not have a mother or siblings and is living in a fantasy
world. The Court was disturbed by this and was concerned
about the Child’s unaddressed mental health needs. The Court
stated on the record:
More so, the Court finds to be disturbing, the fact that
[Father has] indicated that the child, in his own words, is
a motherless child who actually has no other friends to
associate with[,] and this is his reason for allowing the
fantasy[,] to encourage his child to live in a fantasy. The
Court doesn’t need to be a mental health advisor to
understand that that’s incorrect, that’s wrong. [. . .]
[I]t’s obvious [. . .] to the Court, that child needs to be
helped to seek mental health attention. [N.T., 7/22/14,]
at 102-03.
Furthermore, Father, by his own admission, did not follow-up on
setting up an appointment with a doctor for the Child, despite
telling the Child’s school that he would make an appointment.
This raised concerns to the Court about Father’s ability to
properly address the Child’s mental health needs.
Trial Court Opinion, 9/12/14, at 11-12.
Therefore, I conclude that, in this case, there was an abundance of
information about Father’s ability to parent Child. Specifically, the evidence
is clear and convincing that Child is dependent and her removal from
2
Pursuant to the shelter care order, Child participated in a psychological
evaluation, which occurred prior to the adjudication hearing. Order,
6/26/14; see also N.T., 7/22/14, at 18.
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Father’s custody necessary for her well-being. As such, I believe that the
trial court’s order requiring Father to undergo a psychological evaluation at
the outset of the dependency case, rather than at a later time as in T.R., is
a distinction without significance.
For the same reasons, I disagree with the Majority distinguishing T.R.
based on the trial court’s concern about Father’s mental health, when
nothing suggested that the mother in T.R. suffered from diagnosed mental
health issues. See Trial Court Opinion, 9/12/14, at 13. Like the Majority, I
defer to the findings of the trial court regarding Father’s mental health that
DHS’s witnesses were credible and Father’s testimony largely incredible.3
Nevertheless, the record contains an abundance of information that Child is
not being cared for properly, and that Father is not a fit parent. See In re
K.D., 744 A.2d 760, 761 (Pa. Super. 1999) (concluding that “[a] mere
allegation that [the mother] has been taking medication for a mental
condition and passed out on one occasion as a result of the medication is
3
The trial court stated, in part:
At the adjudicatory hearing, the Court was presented with
testimony that Father had received mental health services in the
past and was previously hospitalized for mental health
treatment. Ms. Williams-Mitchum expressed that she had
concerns about Father’s mental health based upon her own
interactions with Father. Further, Father testified at the
adjudicatory hearing, so the Court observed Father first-hand
and had concerns about Father’s mental health. . . .
Trial Court Opinion, 9/12/14, at 13.
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insufficient, in our minds, to force upon her an unwanted psychological
evaluation.”).
Under the circumstances of this case, I find the reasoning of the T.R.
Court’s plurality decision persuasive, as follows:
The real issue in the case, then, is not so much whether the
children should be removed, as whether the mother should be
protected from her own assertion of a constitutional right
because the assertion of that right may impede the efforts of the
courts to return the children to her care. Citing the legislative
goal of keeping the family together, the department would
require the psychological examination.
We regard such a concern as well intentioned, but misplaced.
Compelling a psychological examination in this context is nothing
more or less than social engineering in derogation of
constitutional rights, and where, as here, there is an abundance
of information about the ability of the parent to be a parent,
there is no state interest, much less a compelling state interest,
in the ordering of parental psychological examinations. In fact,
we find such state intervention frightening in its Orwellian
aspect. It is one thing for the mother to agree to psychological
evaluation and to voluntarily undergo instruction in self-
improvement, but it is quite another for the state, in the exercise
of paternalistic might, to order a psychological evaluation in
violation of the mother’s constitutional rights, presumably upon
pain of imprisonment for contempt of court. . . .
T.R., 731 A.2d at 1281. Like in T.R., where the evidence in this case
supports Child’s commitment to the custody of DHS, I would conclude that,
“there is no state interest, much less a compelling state interest,” in the
ordering of Father’s psychological evaluation under risk of fine and/or
imprisonment for contempt. Id.
With respect to the Majority’s concern for the proper placement of
Child, the T.R. Court next explained,
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The mother, alas, may be her own worst enemy and her
shortcomings as a parent may result in the permanent removal
of her children; nonetheless, the mother remains a free person,
and her power to assert her constitutional right to privacy is not
diminished merely because the representatives of the state think
it is ill advised.
Id.
Indeed, the T.R. Court, and subsequent dispositions by this Court,
recognized a trial court may consider a parent’s refusal to comply with
mental health recommendations in determining a child’s placement. See In
re J.Y., 754 A.2d 5, 9 (Pa. Super. 2000) (concluding that, “T.R. stands for
the proposition that the court may not, under certain circumstances, invade
an individual’s privacy rights by ordering a psychological evaluation and
revealing its results; however, the court may take into consideration a
parent’s refusal to follow its treatment recommendation”); see also D.S.,
supra at 491 (citation omitted) (emphasis omitted) (stating that, “there
would have been no impediment to the trial court’s recommendation that
[the f]ather seek treatment, and if [the f]ather opted to forgo that
treatment, his refusal could have been considered by the trial court in D.S.’s
placement. However, we cannot conclude that there was a compelling state
interest in ordering the evaluation and directing [the f]ather to comply with
recommendations made by [the mental health evaluator] in this case”).
Because the record supports Child’s dependency adjudication and her
removal from Father’s custody, I would reverse that portion of the order
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requiring Father to undergo a psychological evaluation upon pain of fine
and/or imprisonment for contempt of court.
With respect to Father’s final issue regarding whether the trial court
erroneously restricted his visitation with Child, the foster care agency
caseworker testified that Child has had no visits with Father because Child
“has stated to the foster parent that she currently does not want to visit the
father at this time.” N.T., 7/22/14, at 69. Further, Child has not explained
why she does not want to visit with Father. Id. As such, I would conclude
that the order, in effect, denied Father visitation with Child, and did so
improperly as the record is devoid of any evidence that visitation with Father
would pose a “grave threat” to Child. See Lewis v. Lewis, 414 A.2d 375,
376 (Pa. Super. 1979) (citations omitted) (stating that, “[a] parent is rarely
denied the right to visit a legitimate child. Visitation has been limited or
denied only where the parent has been shown to suffer from severe mental
or moral deficiencies that constitute a grave threat to the child. Visitation
has even been allowed to parents whose children do not want to see them”).
In rejecting Father’s argument, the Majority finds significant that the
court’s decision to place visitation at Child’s discretion is temporary, pending
a report from Child’s psychologist. Specifically, at the conclusion of the
adjudication hearing, the trial court stated on the record in open court as
follows:
The child is order[ed] to continue with her psychological care. I
will wait to receive a report from the psychologist whether or not
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. . . it’s in the child’s best interest to have visitation with dad.
Until I receive that report visitation will remain at the child’s
discretion and then should she decide on visitation they will be
therapeutic supervised visits only.
N.T., 7/22/14, at 105-106.
The Majority relies on In re Damon B., 460 A.2d 1196 (Pa. Super.
1983), wherein a panel of this Court affirmed an order temporarily reducing
the mother’s visitation with her dependent child from twice per month to
four times per year. In that case, we noted that the order was “limited in
time by the review hearing scheduled within the next seven months.” Id. at
1198.
In Damon B., we concluded that the “grave threat” standard applied
as the goal remained reunification. We further concluded that the trial court
erred in reducing visitation even though it found that the mother had no
severe mental or moral deficiencies that would constitute a grave threat to
the child. However, we stated that, in rare instances, “we have approved
restricting or temporarily suspending visitation even though there has been
no showing of such severe mental or moral deficiencies in the parent as
would constitute a grave threat to the child’s welfare.” Id. (emphasis in
original) (citations omitted). As such, in Damon B., we affirmed the order
based on the testimonial evidence of two clinical psychologists that the visits
were counterproductive to the child’s development of any bond with his
mother, and that the visits created stress for the child, including nightmares,
enuresis, irrational fear of his mother, and expressions of rage in the child’s
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behavior. See id. at 1197-1198. We expressly stated that, “our decision is
influenced by the fact that this is a temporary reduction in visits rather than
a long-term cessation of visits.” Id. at 1198 n.1.
Similarly, in In re C.J., 729 A.2d 89 (Pa. Super. 1999), this Court was
presented with another rare case of an order restricting the parents’
visitation that was temporary and the trial court incorrectly applying a “best
interest” standard rather than the “grave threat” standard. In that case, we
relied, in part, on Damon B., supra, in affirming the order of the trial court
declining to order visitation at the parents’ respective state correctional
institutions (“SCI”) and ordering visitation to occur once every six months at
the Armstrong County prison, when the parents would be transported to the
area for dependency review hearings. In In re C.J., we concluded as
follows:
[I]t is clear that, given the two visitation locations available, one
of them is unacceptable; extreme stress would occur if the
children were to be ordered to visit the parents in their SCI
locations, and this would amount to a grave threat to them.
There is ample evidence to this effect, as well as a fully
supported finding by the trial court. We, therefore, affirm the
portion of the order regarding transportation to the parents’ SCI
locations.
We have before us no finding [by the trial court] under either the
“grave threat” or the “best interest” standard regarding visitation
in the Armstrong County prison. Nonetheless, there is ample
evidence of record for us to find that supervised visitation in that
location would not pose a grave threat to the children. . . .
C.J., 729 A.2d at 96.
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In stark contrast to Damon B. and C.J., in the present case, there is
no evidence in the record before us that Father is unfit to associate in a
supervised capacity with Child or that there is any severe adverse effect
upon Child. Indeed, the trial court made no findings in this regard. Upon a
review of the transcript, it appears DHS and the trial court did not have
cognizance of the need to consider the constitutionally protected interest of
Father to visitation. While it is conceivable that, under the circumstances of
this case, visitation with Father may pose a “grave threat” to Child’s well-
being, DHS failed to introduce any evidence to demonstrate this. Therefore,
I disagree with the Majority that Damon B., supra, is controlling in this
case. As such, I would reverse that part of the order providing for Father to
have therapeutic supervised visits at Child’s discretion and remand this
matter to the trial court to fashion a new order granting Father appropriate
visitation pending receipt of a report from Child’s psychologist, at which time
the trial court could revisit the issue.
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