J-S01028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: BRIAN FORSYTH,
GUARDIAN AD LITEM
Appellant No. 1585 MDA 2016
Appeal from the Order entered August 24, 2016,
in the Court of Common Pleas of Berks County,
Juvenile Division, at No(s): CP-06-DP-0000255-2016.
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 14, 2017
Brian Forsyth, the court-appointed Guardian Ad Litem (“GAL”), appeals
from the trial court’s order dismissing a Dependency Petition filed by the
Berks County Children and Youth Services (“the Agency”). After careful
review of the record and relevant law, we reverse and remand for further
proceedings.
The relevant factual and procedural history of this case is as follows.
E.M. (“Child”) was born in November 2014 to Mother and Father. Mother
works full time at New Directions Treatment Services in West Reading, and
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Father cares for the Child while she is at work. In May 2016, Mother and
Father temporarily separated and Father moved into his father’s home.1
On May 16, 2016, when Mother went to Father’s temporary home to
retrieve the Child, Father refused to hand the Child to Mother. Mother then
pushed Father and punched him in the stomach while Father held the Child.
Still holding the Child, Father then punched Mother in the face. Father called
the Reading Police Department. The police arrived, separated the parties,
and instructed Mother to leave. Mother left, but returned later and retrieved
the Child from Father’s neighbor where Father had temporarily left the Child.
Soon thereafter, Mother filed a Petition for a Protection from Abuse (“PFA”)
Order.
Over the next few weeks, Father and Mother continued to have
disputes which resulted in Father calling the police “four or five times” when
Mother came over to his father’s house to “keep the peace” so “nothing bad
would happen.” N.T., 8/24/16 at 5-6, 36. After a hearing on the PFA, the
court ordered Mother to take the Child to Father’s house while she worked.2
Father and Mother then reconciled, and Mother withdrew the PFA petition on
May 31, 2016. See N.T., at 58.
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1
Father was briefly incarcerated for a probation violation when he failed to
pay restitution as ordered in connection with his kicking in his ex-wife’s
door.
2
The record does not indicate whether the court granted, denied, or held the
PFA in abeyance.
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The Agency received a report of this domestic dispute in May and
attempted to work with the family. The Agency went to the home but Father
said he would not cooperate and did not want to have anything to do with
the Agency. N.T. at 39. The Agency continued to try to work with the
family. In June, Mother went to the Agency to tell them that the PFA had
been dropped and there were no more concerns. The Agency informed
Mother that she needed to allow them in the home to make sure that there
were no concerns. The Agency subsequently visited, saw the Child sleeping
in his crib, and left after briefly speaking with Father. Father informed the
Agency that neither he nor Mother would cooperate with the Agency.
On July 22, 2016, the Agency filed a Dependency Petition alleging that
the Child was without proper care or control, was in Mother’s home, and was
“in imminent risk of placement in foster care absent preventive services.”
Dependency Petition, 7/22/16.
The juvenile court held a hearing on August 24, 2016. At the hearing,
Mother and Father proceeded pro se after declining the assistance of counsel
and refusing to sign a waiver of counsel form. Father testified that the
parties had not argued about who should take care of the Child, but he
acknowledged that Mother felt as if he were taking the Child from her “like a
mother should.” N.T. at 21. He stated that the Child was “nearby” when
they argued, but that he did not feel the two of them would benefit from
domestic violence counseling. The following exchange occurred between
Father and the GAL:
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Father: Everybody has disputes. This just this [sic] particular
one I think was a little bit blown out of proportion on both of our
parts. But it was a mistake. And I don’t think one mistake
should justify a whole journey of what we already done for this
young boy or what we have done with our relationship. I don’t
think one argument – we learned from this man, and this is
something that we all can learn from.
GAL: But if you called the police five times, these are pretty
serious arguments; correct?
Father: It was stupidity, sir. It was stupidity. I wasn’t in my
right mind; neither was she. It was all about who wanted what
they wanted and who can use what and who can use who
quicker. And that’s what we did. We used you all then you all
turned around and flipped it back on us. That’s what you doing.
GAL: But if some kind of domestic violence counseling can help
the two of you not argue and provide a safer –
Father: I just told you where we are getting our counseling
from. We are getting our counseling from the Bible. And that’s
going to be bigger than any type of counseling you can give me
or anybody else can give me. So I don’t agree.
...
And now we see how our behavior was, how that made our son
look, how it made us look. It made us look very foolish, sir. It
made us look like we are incapable for not taking care of that
little guy because of how our behavior was at that time.
Id. at 22-3.
Father also testified: “Is [the Child] going to see us act up along
the way? Sure, we are not perfect people. We make mistakes.” Id.
at 51. Father continued:
I mean as far as putting the hands on each other, that was just
in the moment of it.
It wasn’t like I drew back and punched my wife in the fact. Look
how big my hand is and look how little her face is. If I would
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have punched her in the fact, she would have had a mark, an
identifying mark that I would have got arrested for. So she felt
like she got punched because in the heat of the moment she –
we are moving. We are -- maybe she – I don’t know. I told her
I don’t remember doing it, and I have to be honest about that. I
don’t remember hitting her. But she’s saying that she got hit.
Okay. Well, where is your mark at. I know you did it. Okay.
Id. at 51-2.
Mother testified regarding the May 16th incident, as follows:
Mother: [On May 16,] I went to pick up my son, [Father] would
not give me my son. That’s when I punched him in the stomach.
And then he just punched me in my face but just to get me away
from him.
And the cause of cops [sic] were called and they told me to
leave. And the only way I can get my son if I would come to
here to do a PFA. And they can do what they have to do.
So when I left, a family member stayed back and saw that
[Father] left the baby with the neighbor. So when [Father] left,
I drove back and I went to the neighbor and I took my son.
...
[Agency]: And how often has Mr. Moran called the police on
you?
Mother: Well, after this dispute, it was around four or five
times that he called it. But before and after no.
Id. at 34.
Mother further stated that she was not afraid of Father and she has no
concerns about him watching their son. See N.T. 35-6. She also stated that
she and Father do not need domestic violence counseling, and she is not
aware that there are any domestic violence concerns. Id. at 38, 60.
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The Agency caseworker testified that when they went to Father’s
house after receiving the report of domestic abuse, Father was
uncooperative. Id. at 40. She stated that the parties complained that the
other parent had mental health issues and was unstable, but that Mother
never indicated she had any concern regarding the Child being in Father’s
care. The caseworker noted that the Agency recommended domestic
violence evaluation, services, and mental health evaluation. Id. at 41.
During cross-examination by Mother, the caseworker stated that the reason
for the visit from the Agency was to talk to Mother about the effect of
domestic violence on the Child. On cross-examination by the GAL, the
caseworker testified that upon subsequent attempts to visit the parents’
home, Mother and Father told the Agency that “they would not be
cooperating, that they did not need services, that they would not be taking
part, and [the Agency] did not need to return to their home.” Id. at 45.
At the end of the hearing, the court told Father that it wanted the
Agency to facilitate a family group decision-making (“FGDM”) conference
“because if you can address these issues that I see of potential
domestic violence continuing . . . I would just like to make certain that
there’s a plan. So how do we keep your son safe in the event something
happens.” Id. at 61-2 (emphasis added). The court continued to emphasize
the importance of the FGDM conference with the Agency facilitating, but
Father stated he refused to accept the court’s “offer.” Id. at 63.
The court then provided the following determination on the record:
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So based on the evidence that was presented today, I am not
finding dependency. I haven’t heard anything about the safety,
direct safety of your son. I have watched him during the hearing
today. I watched you handle him. I can see he is appropriate.
He seems clean. I haven’t heard any deficiencies in his care.
But this piece about domestic violence is a concern to me.
While it doesn’t appear to be a concern today, I am not
convinced that you really have a plan. Because I would like
to hear what the plan is. And if it’s your church that’s
addressing it, I would like to hear from a [FGDM] conference.
So just know the Agency is going to continue to do their job.
And so they may continue to contact you to make sure that your
son is safe.
Id. at 63-4 (emphasis added).
Father responded “[t]hat’s fine” but then told the court that he was
“not going to cooperate with an Agency that I feel is fraudulent.” Id. at 65.
The court then informed Father that the Agency’s job
is to ensure the safety of your son. I haven’t heard any
testimony today, direct testimony, that your son has been
harmed in any way. Although I will tell you that there is
evidence that just having domestic violence take place in
the home where the child is present is indirect harm to
the child. So you have to understand that. So you need to get
that piece under control.
If your church is addressing that and there is nothing further
happening vis-à-vis your arguments and the inappropriate
activity that is taking place in front of your child, then you are
going to be okay with regard to further investigation.
But, sir, you have to make certain that you are addressing this in
an appropriate way. I am still talking. I would like the Agency
to explore [FGDM] conference with you so that I could see that
report and be comfortable that this is going to be a long-term
solution to your problem and it wasn’t [sic] just a single episode.
Your wife’s employment of ten years was important to me in
terms of her mental health issues. She’s been employed by the
same company for ten years. It’s in the mental health field.
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So I believe that you had an episode between the two of you
that got out of control. It may be, sir, that you have or could
use some anger management generally in your life. But in this
case, the PFA was withdrawn. And I am dismissing the petition.
Id. at 66 (emphasis added).
The court then dismissed the Petition on August 24, 2016. The next
day, the Agency closed the case.
The GAL timely appealed. Both the GAL and the trial court have
complied with Pa.R.A.P. 1925.
The GAL raises the following issues:
1. Should the [Child] have been found dependent as a
matter of law and fact where it was shown that he was
endangered by being placed between physically violent
parents in an ongoing domestic violence environment?
2. Whether the trial court order should be overturned as a
matter of law where the trial court did not follow []
Pa.R.J.C.P. 1408 by specifying after hearing the
evidence and before making the Court’s dependency
determination which allegations in the petition were or
were not proven by clear and convincing evidence.
GAL’s Brief at 2.
Our Supreme Court has recently reiterated the applicable standard of
review:
[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.
We review for abuse of discretion[.]
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Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation and quotation
marks omitted). Once a party files a dependency petition, the court
proceeds in a two-stage process. In re M.B., 101 A.3d 124, 127 (Pa. Super.
2014).
The first stage requires the juvenile court to hear evidence
on the dependency petition and determine whether the
child is dependent pursuant to the standards set forth in
section 6302.[3] 42 Pa.C.S. § 6341(a). If the court finds
clear and convincing evidence that the child is dependent,
it may move to the second stage, in which it must make
an appropriate disposition based upon an inquiry into the
best interests of the child. 42 Pa.C.S. § 6351(a); In re
B.S., 923 A.2d 517, 521 (Pa. Super. 2007).
Id.
A dependent child is defined as one who, inter alia:
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[.]
42 Pa.C.S. § 6302 (emphasis added).
This Court has observed that clear and convincing evidence is evidence
that is “so clear, direct, weighty, and convincing as to enable the trier of
facts to come to a clear conviction, without hesitancy, of the truth of the
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3
42 Pa.C.S. § 6302 provides definitions applicable to the Juvenile Act.
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precise facts in issue.” In the Matter of C.R.S., 696 A.2d 840, 843 (Pa.
Super. 1997) (citation omitted).
In his first issue, the GAL asserts that the Child “in this case was
unsafe without Court and Agency oversight, and needed to be found
dependent to ensure his safety.” GAL’s Brief at 8. He avers that the trial
court erred in stating that it had not “heard anything about safety, direct
safety of” the Child. Id. at 9. We agree.
As set forth above, the court heard testimony from four different
people, including Mother and Father, that at least one incident of domestic
violence occurred in the presence of the Child. Although at one point Father
denied that he had hit Mother, Father later acknowledged that he and
Mother had “laid hands” on one another. Father never denied that Mother
had hit him. He noted that Mother had previously gone through some
mental health treatment, and acknowledged that he needed police presence
at least four other times “to keep the peace” between Mother and him.
Mother admitted that she had hit Father and testified that Father had hit
her. The trial court, thus, heard clear evidence that domestic violence had
occurred in the presence of the Child.
The trial court repeatedly stated that it was concerned about these
parents getting support to help them deal with the issue of domestic
violence. The court stated several times that it had concerns about the
possibility of the recurrence of domestic violence, which would put the safety
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of the Child at risk. The court explicitly indicated that it believed the Agency
needed to be involved to ensure the child’s safety and, in fact, stated that
the Agency would stay involved.4 Most significantly, the trial court explicitly
acknowledged domestic violence in the home has been shown to harm
children. See N.T. at 66.5
We, thus, conclude that the trial court had clear and convincing
evidence “to come to a clear conviction, without hesitancy, of the truth of
the precise facts in issue,” i.e. that domestic violence occurred in the
presence of the Child, and on at least one occasion while Father was holding
the Child; and that, as a result, the conduct of the parents placed the
“health, safety or welfare of the [C]hild at risk.” 42 Pa.C.S. § 6302; Matter
of C.R.S., supra at 843. Accordingly, the court erred as a matter of law
when it concluded that the Child was not dependent.
In light of the foregoing, we reverse the Order dismissing the
Dependency Petition, and remand for the court to adjudicate the Child
dependent pursuant to 42 Pa.C.S. § 6341 and to hold further proceedings in
order to make an appropriate disposition based upon a thorough inquiry into
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4
After the court’s determination, the Agency closed the case.
5
Although the trial court referred to exposure to domestic violence as
causing “indirect” harm, studies show that domestic violence causes mental
and emotional injury that directly harms the behavioral health of children.
See, e.g., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2872483.
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the best interests of the child pursuant to 42 Pa.C.S. § 6351(a). 6 We note
that the trial court, when determining whether to commit the Child to the
Agency, should consider, among other factors, the research on the
emotional and mental trauma that domestic violence can cause a child
exposed to domestic violence, Father’s lack of cooperation with the Agency,
and the parents’ success or lack of success in addressing their domestic
violence problems.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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6
In light of our disposition, we will not address GAL’s remaining issue.
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