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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.C.K.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.S., MOTHER :
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: No. 1688 EDA 2021
Appeal from the Order Entered July 21, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001581-2015
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 5, 2022
K.S., the mother of six-year-old K.C.K.S. (“Child”), appeals from the
order suspending her right to visit with Child. Mother contends the court failed
to apply the required “grave threat” standard in evaluating the issue, and
further, failed to consider less restrictive alternatives before suspending visits
with Child. We affirm.
Initially, we observe that the order appealed from is not a final order
under our Rules of Appellate Procedure. See Interest of L.B., 229 A.3d 971,
975 (Pa. Super. 2020). Nevertheless, as Mother properly notes in her
statement of jurisdiction, this case involves a complete, indefinite suspension
of her right to visit Child, and therefore qualifies for interlocutory appellate
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* Former Justice specially assigned to the Superior Court.
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review. See id., at 976-977. We therefore proceed to address Mother’s
appeal.
Child was brought to the attention of Philadelphia Department of Human
Services (“DHS”) based on reports that Mother had verbally and physically
abused Child. Further, DHS had received reports that Child had inappropriately
touched adult women. The court subsequently found Child to be dependent
and placed him in foster care. In addition, the court found that aggravated
circumstances existed because Mother’s parental rights to four other children
had already been terminated. The court granted Mother supervised visits with
Child at the foster care agency, while directing her to participate in mental
health treatment and drug screenings.
Over the next 21 months, Mother failed to participate in mental health
treatment or drug screenings. While Mother’s visitation with Child eventually
became consistent, they were not without problems. Mother twice attempted
to abscond with Child at the end of visits. Further, concerns arose over Child’s
behavior after these visits. After receiving evidence at a permanency review
hearing that Child would display inappropriate sexual behavior and other
disturbed behavior after his visits with Mother, the court entered the order
suspending Mother’s visitation with Child. This timely appeal followed.
Both of Mother’s issues on appeal claim the court erred in suspending
Mother’s visitation rights. When reviewing dependency orders, we apply a
deferential standard of review. The trial court’s factual findings are binding
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unless we can find no support for them in the record. See L.B., 229 A.3d at
977. In contrast, we are not bound by the trial court’s inferences and legal
conclusions. See id. These we review for an abuse of discretion. See id.
We address Mother’s second issue first for readability purposes. Mother
contends the trial court failed to utilize the “grave threat” standard when
analyzing whether a complete suspension of visits was appropriate in this
case. See Appellant’s Brief, at 9. The “grave threat” standard would have
required DHS to prove that Mother was unfit to associate with Child. See L.B.,
229 A.3d at 974 n.3.
Whether the trial court was required to use the “grave threat” standard
depends on what the permanency goal was at the time visitation was
suspended. See In re C.J., 729 A.2d 89, 95 (Pa. Super. 1999). If the goal
was reunification, DHS was required to establish a “grave threat” to Child in
order to justify a suspension of visitation. See id. In contrast, if the goal was
no longer reunification, then suspension was justifiable if it was in the best
interests of Child. See id.
Here, the trial court explicitly utilized the best interests of Child as the
standard when it imposed the suspension of visitation. See Trial Court
Opinion, 9/17/21, at 8. The court did so even though the permanency goal at
the time was reunification. It justified this conclusion by noting that it
contemporaneously scheduled a goal change hearing when it filed the order
suspending visitation. See id.
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We agree with Mother that this was an error. While the trial court was
clearly ready to change the permanency goal for Child, it had not yet done so.
It merely scheduled a hearing on whether to change the goal, which is not the
legal equivalent of changing the permanency goal. As such, DHS was required
to establish that Mother posed a “grave threat” to Child in order to suspend
Mother’s visitation.
Nevertheless, this conclusion does not require reversal. The trial court
also concluded, in the alternative, that the evidence also supported a finding
of a “grave threat” to Child. See id., at 9. In doing so, the court credited the
testimony of the Community Umbrella Agency (“CUA”) case manager. See id.
The case manager testified Child “displays the most disturbed behavior … after
his supervised visit[s] … with mother. The behaviors are very extreme, very
sexual, sometimes can be very disrespectful, and all these behaviors are
prompted by encouragement of mom.” N.T., 7/21/21, at 8. The case manager
testified that Child had told her that Child acts out like this “even though he
knows it is wrong, because his mom asks him and tells him to do it, and he
doesn’t want to disappoint her.” Id.
The court also credited the testimony of Child’s foster mother. See Trial
Court Opinion, 9/17/21, at 9. The foster mother testified that once Mother
became consistent in visiting Child, Child’s behavior started deteriorating. See
N.T., 7/21/21, at 22. Specifically, Child became disrespectful towards his
foster parents and began acting inappropriately at his daycare. See id., at 22-
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24. She also noticed that Child often vomited after attending visits with
Mother. See id., at 28.
Mother challenges the sufficiency of the testimony relied upon by the
trial court. Mother correctly notes that much of this testimony is hearsay in
nature. See, e.g., N.T. 7/21/21, at 16 (CUA case manager admitting that her
testimony about Mother’s conduct at supervised visits came from third
parties); id. at 17 (CUA case manager admitting that her testimony about
Child’s behavior at daycare came from foster parents, who heard it from
daycare workers).
Mother concedes that this hearsay evidence was admissible at the
permanency review hearing. See Appellant’s Brief, at 10 (citing 42 Pa.C.S.A.
§ 6341). Nonetheless, she argues that this evidence could not form the basis
for a finding that Mother posed a “grave threat” to Child, as she maintains
that hearsay evidence, while admissible, cannot constitute clear and
convincing evidence. See In Interest of Coast, 561 A.2d 762, 771-72 (Pa.
Super. 1989) (holding that a complete denial of visitation requires clear and
convincing evidence that the parent poses a grave threat to the child).
The trial court responds that Mother failed to preserve any objection to
the hearsay nature of the testimony. See Trial Court Opinion, 9/17/21, at 11.
We cannot agree that Mother has waived any objection to the nature of the
testimony. There is no indication in the record that Mother was advised, prior
to the hearing, that a complete denial of visitation was a possible result of the
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permanency review hearing. As Mother notes, hearsay testimony is
permissible at a permanency review hearing. See 42 Pa.C.S.A. § 6341(d). So,
if Mother had objected to the testimony on hearsay grounds, that objection
would likely have been overruled.
Nevertheless, we conclude that for the same reasons, the trial court did
not abuse its discretion in considering the hearsay evidence. Under Section
6341(c), after a child has been found to be dependent, the court must
schedule a prompt disposition hearing. See 42 Pa.C.S.A. § 6341(c). Section
6341(d) then provides that “in disposition hearings under subsections (b) and
(c) all evidence helpful in determining the questions presented, including oral
and written reports, may be received by the court and relied upon to the
extent of its probative value even though not otherwise competent in the
hearing on the petition.” 42 Pa.C.S.A. § 6341(d)(1)(i).
While orders that completely deny visitation are arguably akin to
findings of dependency, in that they are required to be made by clear and
convincing evidence, we conclude their true nature is still dispositional in
nature. They do not end a dependency matter. Section 6341 does not explicitly
address them. And they are likely to arise, like here, from permanency review
hearings, where hearsay evidence is likely to be admitted and considered.
Under these circumstances, we conclude that dependency courts can
consider hearsay evidence when considering whether a parent poses a grave
threat to the child. It may be the case that a finding of a grave threat based
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solely on hearsay evidence constitutes an abuse of discretion. But that is not
the case here.
The court also heard testimony that, other than visitation, Mother has
not complied with any of the goals set forth in the reunification plan. See N.T.,
7/21/21, at 10-11. Further, Mother has attempted to abscond with Child after
visits at least twice. See id., at 10. Mother has refused inspections of her
housing, see id., at 12, refused drug screens, see id., at 11, and failed to
successfully complete parenting classes, see id., at 10.
In addition, Child’s foster mother testified that, after Mother’s visitation
with Child became more consistent, she personally observed increased
disrespect from Child towards herself and her fiancé. See id., at 21-2, 27-8.
She has seen him searching through other people’s purses and taking food
from them. See id., at 28. Finally, she has noticed that Child often vomits
after visiting with Mother, and often returns from visits with food Mother has
given him. See id.
All of this evidence was not hearsay in nature, and clearly supports the
trial court’s conclusion that Mother poses a grave threat to Child’s health and
well-being. Even though the trial court also considered hearsay evidence in
making its finding, it clearly did not rely solely on hearsay evidence. In fact,
we conclude that even in the absence of the hearsay evidence, the non-
hearsay evidence was sufficient to support the trial court’s finding. Mother’s
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argument that the “grave threat” finding was supported by insufficient
evidence merits no relief on appeal.
Finally, we turn to Mother’s argument that the trial court erred by not
considering less restrictive alternatives. Before suspending visitation, a trial
court is required to consider less restrictive options such as therapeutic
visitation. See L.B., 229 A.3d at 977. Mother contends that therapeutic
visitation or some other, less restrictive visitation scheme should have been
considered by the trial court here. She highlights that no expert opinion was
presented to support the denial of visitation, and that there was no evidence
of what other supports were provided or could be provided to allow Mother to
continue to have some limited form of visitation with Child. See Appellant’s
Brief, at 8.
While the trial court does not explicitly address this argument in its
opinion, it is clear from the record that no therapeutic intervention or other
support will protect Child from Mother. As noted above, Mother has refused
all other therapeutic services offered by DHS and has refused to cooperate
with DHS in every possible manner. Based on this record, there is no reason
to believe that Mother would suddenly reverse course and welcome
therapeutic support or any other assistance DHS offered. Mother’s claim that
other, less restrictive options were available is unconvincing.
As none of Mother’s issues on appeal merit relief, we affirm the order
suspending Mother’s visitation rights.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2022
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