J. S58014/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
H.T. A/K/A H.D., A MINOR : PENNSYLVANIA
:
APPEAL OF: : No. 753 MDA 2017
C.D., BIOLOGICAL MOTHER :
Appeal from the Order Dated April 4, 2017,
in the Court of Common Pleas of Lackawanna County
Juvenile Division at No. CP-35-DP-0000015-2017
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 19, 2017
C.D. (“mother”) appeals from the April 4, 2017 order entered in the
Court of Common Pleas of Lackawanna County that adjudicated her
biological daughter H.T. a/k/a H.D. (“minor child”) dependent and, due to
the presence of aggravated circumstances, ordered that no further efforts to
preserve or reunify the minor child with mother were necessary. We affirm.
The trial court set forth the following factual and procedural history:
Minor child came into the [Lackawanna County
Office of Youth and Family Services’ (“Agency”)]
custody following her discharge from the hospital
subsequent to her birth on February [], 2017.
Initially, the Agency was seeking immediate custody
due to [mother]’s history with the Agency in regards
to domestic violence, drug and alcohol use,
homelessness, mental health issues, psychiatric
hospitalizations, and inability to understand how to
care for a child. [Mother] has been involved with the
Agency since 2010, at which time [mother] gave
birth to a child. [Mother]’s rights were voluntarily
terminated on that child on September 11, 2012.
J. S58014/17
[Mother] has an IQ score of 64. Case worker
Jennifer Dunston (hereinafter “Ms. Dunston”)
testified that [mother] has been diagnosed with PDD
(pervasive developmental disorder), intellectual
disability, depression, ODD (oppositional defiant
disorder), and ADHD (attention-deficit/hyperactivity
disorder). Since being involved with [mother], the
Agency has had concerns about [mother]’s cognitive
and emotional delays. For example, at one time
[mother] reported to that Agency that she was living
with two (2) friends but did not know their names or
where she was living. In 2010, [mother] met
someone on the Internet, took a cab to Pittsburgh,
and upon arrival in Pittsburgh did not have the
$400.00 to pay the taxi driver.
Subsequently, [mother] gave birth to another
child on February [], 2014 and the Agency again
became involved. It was reported that [mother] was
not taking her required medications, and that minor
child was placed into custody with the Agency
following a domestic violence incident with her
paramour with whom she resided, [V.S.]. When that
child was in custody with the Agency, [mother] was
inconsistent with services and scheduled visits with
the child. Following the placement of the minor
child, [mother] was again homeless and unable to
maintain housing. Ms. Dunston testified that the
record notes that [mother] did not have an
understanding of the child’s development.
[Mother]’s rights were involuntarily terminated with
respect to that child on September 17, 2015.
[Mother] was not present for that hearing, and her
whereabouts were unknown.
[Mother]’s rights were voluntarily terminated
on a third child on June 2, 2016. [Mother] was again
homeless, and inconsistent with services provided by
the Agency and visits with that minor child.
Subsequently, [mother] gave birth to a fourth child,
J.T., who was placed in custody of the Agency on
June 10, 2016. [Mother]’s fourth minor child is
currently in kinship with his paternal aunt and uncle.
-2-
J. S58014/17
Regarding minor child J.T., the Agency was granted
aggravated circumstances on September 19, 2016
by the Honorable Judge Chester Harhut, with no
attempts of reunification. Stephanie Herne, the
caseworker that worked specifically with [mother]
and minor child J.T., testified that [mother] could
have attended twenty-two (22) visits with J.T. but
only showed to fourteen (14). Ms. Herne further
testified that [mother] displayed low empathy,
required prompts to care for the basic needs of the
minor child during every visitation, and struggled
with her own hygiene. Since September, [mother]
made no progress in terms of her ability to care for
the minor child. [Mother] consistently missed
parenting assessments, and is only at the beginning
stages with the child at issue.
The Agency has continued to offer [mother]
with services. The Agency was aware of [mother]’s
pregnancy with the child at issue in our case in
September of 2016, and attempted to prepare
[mother] for said child by offering parenting services
and through working with Scranton Counseling
Center. While [mother] did participate in a few
visitations with minor child J.T., she was very
inconsistent and unable to care for the child on her
own. [Mother] was not compliant with any services
until March of 2017. In March 2017, [mother] began
attending parenting sessions through the Agency and
Scranton Counseling Center, attended a medication
management appointment and a therapy
appointment, and completed an intake assessment
at PATH for drug and alcohol. While [mother]
completed an intake for drug and alcohol, she was a
no-call no-show for her first appointment at PATH.
The minor child at issue is [mother]’s fifth
child, and at the time the Agency took custody, the
father was unknown. Paternity has since been
established to be [V.S.]. The Agency still must
assess [V.S.’s] parenting to assure that he is capable
to care for the minor child properly. [V.S.] also has
a history of domestic violence against [mother], and
was incarcerated for the same in 2014 for a period of
-3-
J. S58014/17
one (1) year. The Agency is seeking to reunify the
minor child with [V.S.], and is not looking to find
aggravated circumstances against [V.S.]. [V.S.] was
to begin supervised visitation through the Agency in
late April.
Minor child is currently in placement in kinship
foster care with [mother]’s cousins [T. and S.B.].
The minor child is also residing with a biological
sibling who will be adopted by the [kinship foster
caretakers]. Minor child was born premature at
thirty-four (34) weeks, was on a feeding tube and
could not breathe on her own. Minor child was
discharged from the hospital on February 28, 2017,
and placed on vitamins and iron due to being born
premature. While in the NICU at the hospital,
[mother] had unlimited access to the minor child but
had not visited with the minor child since
February 20, 2017. Currently, minor child does not
have any medical issues.
An adjudication hearing was held on April 4,
2017, wherein this Court found minor child
adjudicated dependent, custody placement
remaining with the Agency. This Court found clear
and convincing evidence that the parental rights of
[mother] have been involuntarily terminated with
respect to another child of [mother], and voluntarily
terminated with respect to two (2) other children of
[mother]. This Court also found that this is
[mother]’s fifth child, and that she has not followed
recommendations of the Agency for the last
seven (7) years. Therefore, aggravated
circumstances exist with minor child []. The Court
held that [mother] is not obligated to accept, nor is
the [A]gency obligated to provide, services to
[mother].
[Mother] filed the current appeal of our April 4,
2017 Order on May 4, 2017. [Mother]
simultaneously filed a concise statement of
errors/matters complained of on appeal pursuant to
[Pa.R.A.P. 1925(b)] alleging that following a finding
of aggravated circumstances, this Court erred as a
-4-
J. S58014/17
matter of law and manifestly abused its discretion in
determining that the Agency is not required to make
efforts to reunify [mother] and minor child.
Trial court opinion, 6/1/17 at 1-5 (citations to notes of testimony omitted).
Mother raises the following issue for our review: “Whether following a
finding of aggravated circumstances, the trial court erred as a matter of law
and/or manifestly abused its discretion in determining the Agency is not
required to make efforts to reunify biological mother and the [minor] child?”
(Mother’s brief at 6 (capitalization omitted).)
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.
R.P. v. L.P., 957 A.2d 1205, 1211 (Pa.Super. 2008) (internal citations,
quotation marks, and brackets omitted).
Our Supreme Court, in In re M.L., 562 Pa. 646, 757
A.2d 849, 850-51 (Pa. 2000), stated that a court:
is empowered by 42 Pa.C.S.[A.]
§ 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
-5-
J. S58014/17
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.[A.] § 6351 (a).
Id. (citation omitted).
A dependent child is 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(1).
Id. (brackets in original).
The Juvenile Act, 42 Pa.C.S.[A.] §§ 6301-65, which
was amended in 1998 to conform to the federal
Adoption and Safe Families Act (“ASFA”), 42 U.S.C.
§ 671 et seq., controls the adjudication and
disposition of dependent children. The policy
underlying these statutes aims at the prevention of
children languishing indefinitely in foster care, with
its inherent lack of permanency, normalcy, and
long-term parental commitment. Furthermore, the
1998 amendments to the Juvenile Act, as required
by ASFA, place the focus of dependency proceedings
on the child. Safety, permanency, and the
-6-
J. S58014/17
well-being of the child must take precedence over all
other considerations, including the rights of the
parents.
Id. at 1217 (internal citations to case law omitted).
Under the definitions section of the Juvenile Act, an aggravated
circumstance is defined, among other circumstances, as when “[t]he
parental rights of the parent have been involuntarily terminated with respect
to a child of the parent.” 42 Pa.C.S.A. § 6302 (definition of “aggravated
circumstances,” Subsection (7)).
Pursuant to the Juvenile Act, if a court finds that
aggravated circumstances exist in a given case, the
court must then “determine whether or not
reasonable efforts to prevent or eliminate the need
for removing the child from the home or to preserve
and reunify the family shall be made or continue to
be made . . . .” 42 Pa.C.S.A. § 6341(c.1). A court
may end reasonable efforts at its discretion.” See
In re A.H., 2000 PA Super 357, 763 A.2d 873, 878
(Pa. Super. 2000).
In the Interest of L.V., 127 A.3d 831, 839 (Pa.Super. 2015); accord R.L.,
957 A.2d at 1217 (finding that the existence of an aggravated circumstance
permits a trial court to suspend efforts at reunification).
Here, mother neither disputes the trial court’s dependency
adjudication nor its aggravated circumstance finding. Mother’s sole
contention is that the trial court abused its discretion in determining that the
Agency is not required to make reunification efforts. We disagree.
Following a hearing on this matter, where two Agency caseworkers
and mother testified, the trial court explained its findings of dependency and
-7-
J. S58014/17
aggravated circumstances and its decision to order that no further efforts to
preserve or reunify the minor child with mother were necessary, as follows:
Based upon my review of the testimony that was
provided here today, there’s no question that the
Agency has met by clear and convincing evidence
that an aggravating circumstance does exist, that
being [mother] had one other child wherein her
parental rights were involuntarily terminated.
The next step would be as to what we do subsequent
to that. And the Court has made additional findings
as part of the record here today, that being that
there’s a seven year history that the Agency has with
[mother].
[Minor child] is her fifth child and made reference to
the fact that one child, her rights were involuntarily
terminated. There were two others where her rights
were voluntarily terminated, and a 4th child, [J.T.]
the third, who was born on May [], 2016, that
aggravating circumstances existed in that particular
case with no efforts to reunify child with mother.
Also, that there is evidence that mother has a history
of mental illness, which she admitted to on the stand
today. That there is inconsistent stable housing,
even though there were periods that there were, but
there’s still over the seven year period that there’s
[sic] inconsistencies with regards to stable living
conditions.
There’s also a history wherein [mother] did not or
could not follow the recommendations of the Agency
over the past seven years. Albeit that there has
been some effort over the last month. I don’t think
that’s enough with regards to this particular case
involving [minor child].
Notes of testimony, 4/4/17 at 79-80.
-8-
J. S58014/17
We have carefully reviewed the record in this case. As the record
supports the trial court’s factual findings, we discern no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
-9-