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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.M., MOTHER :
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: No. 149 EDA 2022
Appeal from the Order Entered December 7, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000072-2021
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 12, 2022
J.M. (“Mother”) appeals from the order adjudicating N.M. (“Child”), born
November 2020, dependent. Mother argues the trial court erred when it found
Child dependent and placed her in kinship care, erred in its evidentiary rulings,
and violated her Due Process rights. We affirm.
The trial court set forth the factual and procedural history, which we
adopt and incorporate herein. Trial Court Opinion, filed Jan. 26, 2022, at 1-10
(“Trial Ct. Op.”). We will provide a summary.
In 2017, prior to Child’s birth, Child’s five older siblings came into DHS’s
care due to concerns regarding domestic violence, substance abuse, mental
health, and housing. Id. at 2. In September 2019, DHS received a GPS report
that Mother tested positive for methadone when she gave birth to another of
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* Retired Senior Judge assigned to the Superior Court.
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Child’s siblings. Id. Approximately 14 months later, in November 2020, Child
was born. Mother tested negative for substances at the time of Child’s birth,
but DHS received a report that she had tested positive for cocaine, PCP, and
fentanyl during her pregnancy. N.T., 8/17/2021, at 13-14. DHS received a
GPS report in January 2021, that Child had been admitted to St. Christopher’s
Hospital. Id. at 12-13. Child was transferred to CHOP. Mother was escorted
from CHOP after she threatened to remove Child against medical advice. Id.;
N.T., 8/17/2021, at 25. DHS obtained an order for protective custody in
January 2021, and, after a shelter care hearing, the court found Child
medically needed and ordered the temporary commitment to stand. Trial Ct.
Op. at 2-3.
The trial court held a multi-day adjudicatory hearing. At the first day of
the hearing, in June 2021, it heard from the Community Umbrella Agency’s
(“CUA”) case manager/supervisor Joshua Hage. He testified there were
concerns regarding Mother’s drug and alcohol history, mental health, domestic
violence, anger management, and housing. N.T., 6/16/2021, at 83. Although
Mother had drug screens through Gaudenzia, he was unable to confirm
whether they were random. Id. at 85-86. Hage testified Mother’s visits were
moved from supervised at the CUA to supervised at DHS due to Mother’s
erratic behavior and threats she made. Id. at 91-92.
The court resumed the proceedings in August 2021. DHS investigative
worker Erica Payne testified that Mother signed consent forms for Gaudenzia
and Best Behavioral Health but refused to sign releases for her prenatal care.
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N.T., 8/17/2021, at 14-15, 18. She further testified that Mother did not keep
the appointment for a home assessment. Id. at 20-21. Payne had concerns
regarding Mother’s mental health, impulse control, defensiveness, minimal
compliance with the investigation, and drug and alcohol history. Id. at 27-28.
Payne testified that Mother was in treatment and provided screens, but DHS
was unable to determine whether the screens were random. Id. at 28.
Hage resumed his testimony, stating he had concerns regarding
Mother’s mental health because of her failure to consistently attend treatment
at Best Behavioral Health and her mental health diagnoses, including post
traumatic stress disorder, anxiety, depression, and cocaine and opioid
dependency. Id. at 88, 99-100. Hage testified he did not think a mother-baby
program was appropriate due to concerns about Mother’s protective capacity.
Id. at 113-14. Hage further testified that Mother did not have suitable
housing. Id. at 101. She resided with maternal grandmother, who did not
want her home to be considered a reunification resource. Id. Mother’s visits
were supervised at DHS, due to her outbursts and the agency’s concerns for
safety. Id. at 104.
In November 2021, the court held the final day of the adjudicatory
hearing. CUA case manager Ericka Mitchell testified. She had been assigned
the case in September 2021 and had concerns regarding Mother’s mental
health, including her aggressive and erratic behavior. N.T., 11/19/2021, at
18-19. She testified Mother showed aggressive behavior throughout the case,
including threatening a case aide and the foster parents of Child’s sibling. Id.
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at 19, 23. She further testified Mother refused to sign mental health releases.
Id. at 25. She stated Mother obtained random drug screens from Gaudenzia
and the most recent was negative. Id. at 32. Further, Mother completed a
parenting course and Mitchell did not have concerns regarding Mother’s
parenting. Id. at 33-34. Mitchell further testified Mother attended five out of
seven individual therapy sessions since August 2021. Id. at 92. Mother was
approved for housing in Westmoreland County, but the housing was
conditioned on her being reunited with all seven children. Id. at 47-48. That
was no longer viable due to a pending termination petition for two of the
children. Id. at 95-96.
Mother’s OB/GYN, Dr. Michelle Duncan, testified on Mother’s behalf. She
testified that Mother tested negative for controlled substances at Child’s birth
and did not test positive for any substances while the doctor was treating
Mother in 2020. N.T., 8/17/2021, at 62-63, 84. The Director of the Gaudenzia
WINNER program also testified. The WINNER program is a mother-baby
program that had accepted Mother. Id. at 152-69.
Mother testified that she had been clean for two years and that she was
compliant with her mental health treatment, which she found helpful. N.T.,
11/19/2021, at 113, 117-18.
Child’s foster parent testified that she did not think Mother continued to
have substance abuse issues and, although Mother had mental health issues,
she did not believe they would impact her ability to care for Child. Id. at 172-
79.
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The trial court adjudicated Child dependent in December 2021. Mother
filed a timely notice of appeal.
Mother raises the following issues:
1. Was Mother, J.M., denied Due Process, in that the
evidence presented by DHS was largely inadmissible
hearsay?
2. Did DHS fail to prove grounds for dependency by “clear
and convincing” evidence?
3. Did the trial court err in ordering that the child remain in
state custody?
4. Did the court err by denying Due Process of Law to J.M.,
Mother, as guaranteed by the Constitutions of the
Commonwealth of Pennsylvania and of the United States of
America?
Mother’s Br. at 4.
We will address Mother’s first and fourth issues together. In her first
issue, Mother argues that DHS’s evidence was mostly inadmissible hearsay,
which impacted Mother’s ability to cross-examine adverse witnesses. In her
fourth issue, Mother argues she was denied due process because the decision
was based on inadmissible hearsay, and not on competent evidence. She
claims that “[b]y committing errors of law in conducting the proceedings which
led to termination of the parental rights of Mother,” the trial court “necessarily
violated her fundamental rights.” Mother’s Br. at 19.
Mother waived these issues because she did not raise them with
sufficient detail in her statement of errors complained of on appeal pursuant
to Pennsylvania Rules of Appellate Procedure 1925(b). Rule 1925(b) requires
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the appellant to “concisely identify” in the statement “each error that the
appellant intends to assert with sufficient detail to identify the issue to be
raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Any issues not included in the
1925(b) statement, or not raised in accordance with the Rule, are waived.
Pa.R.A.P. 1925(b)(4)(vii).
In her 1925(b) statement, Mother raised the following issues:
1. Ruling that [Child] be adjudicated dependent
without holding an adjudicatory hearing.
2. Ruling that [Child] be committed to DHS, without
holding a dispositional hearing.
3. Ruling as stated above, without making findings,
determinations, and orders required by the Juvenile Act
and by court rules, including but not limited to,
Pa.R.J.C.P. 1401.
4. Failing to rule upon [Mother’s] Motion for
Reconsideration, thus forcing [Mother] to choose
between 1) losing her rights to obtain relief, and 2) filing
this Appeal, and divesting the Trial Court of jurisdiction
to take further action.
5. Denying Due Process of Law to [Mother], as
guaranteed by the Constitution of the Commonwealth of
Pennsylvania and of the United States of America.
6. [Mother] reserved the right to expand and to
supplement this Concise Statement, and to raise any
additional issues in her Appellant’s Brief, for the following
reasons:
a. Pursuant to Children’s Fast Track Rules, this
Concise Statement is being filed at the same time
as is the Notice of Appeal and Order for Transcript,
b. Therefore, this Concise Statement must be
prepared and filed without benefit of a copy of the
Transcript.
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Concise Statement of Matters Complained of on Appeal, filed Jan. 5, 2022.
Mother did not seek to amend her 1925(b) statement after receipt of the
transcript.
Here, Mother’s Rule 1925(b) statement did not elaborate on the
substance of her due process claim. As a result, the trial court did know the
nature of the alleged due process violation. See Trial Ct. Op. at 18-19 (noting
Mother’s “broad assertion does not state the basis of the denial of Mother’s
due process rights,” and that it “could not speculate what” was intended, and
noting that Mother was provided an opportunity to participate at each listing
and to present her evidence and testimony). The statement did not apprise
the judge of the issue it should discuss.
Although Mother attempted to “reserve” a right to raise new claims on
appeal because she filed the Rule 1925(b) statement without the benefit of a
transcript, this is not permissible. Nothing in the rule or in caselaw affords an
appellant an absolute right to amend a Rule 1925(b) statement without the
court’s permission. There was thus no right to “reserve.” Counsel could have
sought the trial court’s leave to amend the Rule 1925(b) statement, but did
not. See Pa.R.A.P. 1925(b)(2)(i) (permitting court, on application and for
good cause, to “permit an amended to supplemental Statement to be filed”).
Furthermore, it appears the due process claim is based at least in part on
alleged evidentiary errors. As counsel was present at the hearing and appears
to have based a separate claim on the evidentiary issues, such errors were
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known at the time of the filing of the Rule 1925(b) statement, without aid of
the transcript.
In her second issue, Mother claims DHS did not prove dependency by
clear and convincing evidence. She argues the evidence was mostly
inadmissible hearsay and, even if the hearsay is considered, it did not prove
dependency. The evidence concerned events that occurred two to three years
in the past and the events were not relevant to her current ability. She argues
that an adjudication of dependency must be based on her current conduct and
condition.
We review orders entered in dependency cases for an abuse of
discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the
findings of fact and credibility determinations if they are supported by the
record, but we are not required to accept the trial court’s inferences or
conclusions of law. Id.
A “dependent child” includes a child 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.” 42
Pa.C.S.A. § 6302 (“Dependent child”). “A determination that there is a lack
of proper parental care or control may be based upon evidence of conduct by
the parent . . . that places the health, safety or welfare of the child at risk,”
including evidence of the parent’s “use of alcohol or a controlled substance
that places the health, safety or welfare of the child at risk.” Id. The petitioner
must demonstrate by clear and convincing evidence that a child meets the
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statutory definition of a dependent child. In re G.T., 845 A.2d 870, 782
(Pa.Super. 2004).
The trial court concluded the testimony at the hearing supported the
adjudication, reasoning it had heard testimony that Child’s health and safety
were at risk because of Mother’s present inability to provide adequate care for
Child. It commended Mother for making progress to alleviate the dependency
issues but stated it continued to have concerns with Mother’s ability to provide
adequate care for Child. It noted the unavailability of provably random drug
screens, and issues with Mother’s housing, anger management, and mental
health. See 1925(a) Op. at 15. The court added that Mother’s visits are
supervised with increased security due to Mother’s threatening behavior. After
review of the briefs, trial court record, relevant law, and the well-reasoned
opinion of the Honorable Cateria R. McCabe, we affirm on the basis of the trial
court opinion. 1925(a) Op. at 12-16.
In her third issue, Mother asserts the court erred in ordering that Child
remain in DHS’s custody. She claims the court provided no analysis or mention
as to whether DHS made reasonable efforts, and no evidence of the same.
Where a child is adjudicated dependent, a court “may not separate that
child from his or her parent unless if finds that the separation is clearly
necessary.” In re G.T., 845 A.2d at 873. “Such necessity is implicated where
the welfare of the child demands that he . . . be taken from his parents’
custody.” Id. (quoting In Int. of J.M., 652 A.2d 877, 881 (Pa.Super. 1995)).
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The trial court concluded it heard credible testimony that outstanding
dependency issues existed that would affect Mother’s ability to provide
adequate care for Child. It acknowledged Mother had made progress but found
Mother’s mental health was not stable enough to reunify with Child. It further
pointed out it had heard credible testimony that Mother had threatened to
physically harm the foster parent of Child’s sibling. It noted Mother had not
signed mental health releases until November 2021, so it was unaware if
Mother’s current health treatment provider was addressing all of Mother’s
mental health issues and that the CUA was unable to assess Mother’s housing.
The court concluded reunification would create a health and safety risk for
Child and Child’s best interest would be met in kinship care.
We conclude the trial court did not abuse its discretion. After review of
the briefs, the trial court record, the relevant law, and the trial court opinion,
we affirm on the basis of the trial court opinion. See 1925(a) Op. at 17-18.1
Order affirmed.
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1 Mother argues that the trial court failed to make any findings regarding
reasonable efforts under 42 Pa.C.S.A. § 6351(b)(2). Section 6351(b)(2)
provides that prior to entering an order finding a child dependent the court
shall make findings as to “whether reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need for removal of the
child from his home, if the child has remained in his home pending such
disposition.” Here, Child had not remained in the home pending the
disposition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2022
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