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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INTEREST OF: A.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Y.T. :
:
:
:
:
: No. 2825 EDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000249-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JULY 25, 2023
Appellant, Y.T. (“Foster Mother”), appeals, pro se, from the order
granting the motion for judicial removal brought by the Department of Human
Services of the City of Philadelphia (“DHS”) and ordering that A.L., born in
2018 (“Child”), not be returned to Foster Mother’s home. We affirm.
On February 8, 2019, DHS filed an application for emergency protective
custody of Child, and a shelter care order was entered. Child was placed in
Foster Mother’s care in February 2019. A dependency petition was filed, and
Child was adjudicated as dependent on June 20, 2019. During the pendency
of these proceedings, a petition for termination of Child’s biological parents
was granted, and the permanency goal was changed to adoption. On August
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* Retired Senior Judge assigned to the Superior Court.
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12, 2022, Child was removed from Foster Mother’s home, and on August 24,
2022, DHS filed the instant motion for judicial removal.
A hearing was held on October 25, 2022, at which a DHS supervisor and
investigator testified. Foster Mother testified on her own behalf, and she also
called the director of A Second Chance, an agency that conducted home visits
after Child’s initial removal. The child advocate for Child also called Child’s
current community umbrella agency caseworker to testify.
The evidence presented by DHS showed that the agency first developed
concerns regarding Foster Mother in March 2021 when she requested respite
care for Child and Foster Mother then made “harassing” communications to
the respite caregiver during the approximate weeklong period when Child
resided outside Foster Mother’s home. N.T., 10/25/22, at 9-11, 26, 31. In a
subsequent home visit in July 2021, Child reported that Foster Mother spanked
her, which is contrary to agency policy. Id. at 11, 23, 34. Child was removed
from Foster Mother’s home on August 11, 2021, when, during a home visit
relating to Foster Mother’s fractious relationship with an older foster child for
whom she was caring, a firearm was observed by a caseworker under a couch
pillow. Id. at 12-13. The DHS supervisor also expressed concerns regarding
Foster Mother’s alcohol use at the time of removal based upon her smelling of
alcohol and erratic conversation style. Id. at 16-17.
Child was returned to Foster Mother’s home in November 2021, subject
to the requirement that Foster Mother submit to a mental health evaluation;
however, Foster Mother did not sign a release and allow DHS to access the
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evaluation until late February 2022. Id. at 18-19, 35-36. The evaluation
revealed that Foster Mother had begun therapy in May 2021, even though she
had denied being in counseling multiple times during that period; Foster
Mother ceased attending therapy sessions in May 2022 shortly after DHS was
put in contact with her therapist. Id. at 19-20, 25-26. Foster Mother was
also involved in an incident during a May 2022 dependency hearing when she
was escorted from the courtroom by four sheriffs. Id. at 21-22, 39.
Child’s ultimate removal occurred on August 12, 2022 when DHS
received a report of no utilities or food in Foster Mother’s home and her
declining mental health; while DHS’s visit revealed Foster Mother did have
utilities and food in the home, the agency discovered that she was still using
corporal punishment on Child by striking her on the head, back, and stomach.
Id. at 22-23, 38, 40, 54, 56, 61. DHS also requested at the time of removal
that Foster Mother submit to random drug screens, which she refused. Id. at
51, 57-58.
On October 25, 2022, the trial court entered the order granting DHS’s
motion for judicial removal and providing for Child’s permanent removal form
from Foster Mother’s home. Foster Mother then filed a timely notice of
appeal.1
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1 Foster Mother filed her concise statement of errors complained of on appeal
contemporaneously with her notice of appeal as required by Pa.R.A.P.
1925(a)(2)(i). The trial court filed an opinion on February 15, 2023.
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In the statement of questions section of her brief, Foster Mother raises
a single issue, concerning whether the trial court’s October 25, 2022 order
was “unjustified pursuant to Commonwealth v. Tither, [] 671 A.2d 1156,
1157 ([Pa. Super.] 1996)[.]” Foster Mother’s Brief at 8 (unpaginated).
However, this question does not correspond to the issue Foster Mother
presents in the argument section of her brief. Moreover, Tither has no
application to this matter as it involved an appeal from the denial of a
suppression motion in a driving under the influence criminal prosecution.
Accordingly, we proceed to review the issue Foster Mother raises in the
argument section of her brief.2
Foster Mother argues that the trial court violated her procedural due
process rights by denying her the ability to present evidence to the court “in
the form of a copy of her evaluation by her therapist which the [c]ourt refused
to enter in as evidence under the pretext that the documents were not self-
authenticated.” Id. at 12. She asserts that these “procedural pretexts” were
an insufficient basis to deprive her of her procedural rights and that the court
should have afforded her the “opportunity to address these procedural
technicalities.” Id. at 12-13. She also contends that the trial court’s decision
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2 While a party’s failure to present an issue in the statement of questions will
generally result in waiver of that issue, see Pa.R.A.P. 2116(a); Werner v.
Werner, 149 A.3d 338, 341 (Pa. Super. 2016), we do not find waiver here
where the defect does not impede our ability to address the merits of the issue
Foster Mother does seek to raise. Werner, 149 A.3d at 341.
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to preclude the admission of the document constituted a clear abuse of
discretion. Id. at 13.
Procedural due process requires, at a minimum, that litigants receive
adequate notice of the litigation, an opportunity to be heard, and a chance to
defend oneself before a fair and impartial tribunal with jurisdiction to hear the
case. In the Interest of S.L., 202 A.3d 723, 729 (Pa. Super. 2019); S.T. v.
R.W., 192 A.3d 1155, 1161 (Pa. Super. 2018). “Significantly, the in-court
presentation of evidence is a fundamental component of due process.” S.L.,
202 A.3d at 729; see also M.O. v. F.W., 42 A.3d 1068, 1072 (Pa. Super.
2012). Whether a due process violation occurred raises a question of law for
which our standard of review is de novo, and our scope of review is plenary.
S.L., 202 A.3d at 729.
Generally, a foster parent is not deemed a party to and lacks standing
to fully participate in dependency proceedings. 42 Pa.C.S. § 6336.1(a); In
the Interest of M.R.F., III, 182 A.3d 1050, 1055 (Pa. Super. 2018).
Specifically, under the Juvenile Act, a foster parent is entitled to notice of a
hearing and the right to be heard regarding the child’s “adjustment,
progress[,] and condition,” but the foster parent does not have full standing
to participate as a party in the proceeding nor is a foster parent entitled to the
statutory rights inherent to a party under the Act. 42 Pa.C.S. § 6336.1(a),
(b)(1); M.R.F., III, 182 A.3d at 1055-56; see also 42 Pa.C.S. §§ 6337, 6338.
“Nevertheless, our case law has carved a narrow exception to permit the
limited participation of a foster resource who has attained prospective-
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adoptive status: prospective adoptive parents have standing to contest the
child welfare agency’s decision to remove a child it placed with them in
anticipation for adoption.” M.R.F., III, 182 A.3d at 1056; see also In re
Griffin, 690 A.2d 1192, 1201 (Pa. Super. 1997). Here, because Foster Mother
was indisputably a prospective adoptive parent of Child and the motion for
judicial removal sought to permanently ensure the removal of Child from
Foster Mother’s care, she had standing in the below proceeding for the limited
purpose of challenging the removal. M.R.F., III, 182 A.3d at 1056; Griffin,
690 A.2d at 1201.
Here, there is no question that Foster Mother was able to participate in
the hearing on the motion for judicial removal, as she was represented by
counsel of her choice,3 she was permitted to present evidence and argument,
and she cross-examined the witnesses offered against her. Also, the record
reflects the Foster Mother was served with the motion for judicial removal,
which detailed DHS’s factual allegations as to why Child should be
permanently removed from her home, as well as the notice setting the date
and time of the hearing on the motion.
Instead, Foster Mother’s due process argument narrowly focuses on her
attempt to introduce a mental health evaluation by her therapist at the trial
court hearing. N.T., 10/25/22, at 86-87. DHS objected to its admission on
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3 Foster Mother was represented by privately retained counsel at the hearing,
but her counsel withdrew after the court granted the motion for judicial
removal, citing Foster Mother’s decision to represent herself in this appeal.
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authentication grounds, and the trial court sustained the objection. Id. at 87.
We conclude that there was no due process violation as Foster Mother was not
precluded from admitting evidence to support her case; instead, the court
simply ruled that the proffered evidence was inadmissible under the
Pennsylvania Rules of Evidence. Foster Mother’s due process rights do not
trump our rules of evidence.
To the extent Foster Mother challenges the trial court’s evidentiary
ruling barring the admission of the evaluation, we note that authentication
generally entails a relatively low burden of proof and requires only, as stated
in Rule of Evidence 901, that the proponent “produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Pa.R.E.
901(a); see also Commonwealth v. Jackson, 283 A.3d 814, 818 (Pa.
Super. 2022); Zuk v. Zuk, 55 A.3d 102, 112 (Pa. Super. 2012). Rule 901
provides that “the testimony of a witness with personal knowledge that a
matter is what it is claimed to be may be sufficient to authenticate or identify
the evidence.” Gregury v. Greguras, 196 A.3d 619, 633 (Pa. Super. 2018);
see Pa.R.E. 901(b)(1). An evidentiary item may also be authenticated based
on its “appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances.” Pa.R.E.
901(b)(4). “A proponent of a document need only present a prima facie case
of some evidence of genuineness in order to put the issue of authenticity
before the factfinder.” Gregury, 196 A.3d at 633-34. The proponent may
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authenticate a document through direct proof or exclusively through
circumstantial evidence. Id. at 633; Zuk, 55 A.3d at 112.
When Foster Mother sought to mark the mental health evaluation
completed by her therapist, Dr. Poole, as an exhibit, counsel for DHS objected,
stating that Foster Mother “has no way to authenticate it. If that’s Dr. Poole’s
evaluation, [Foster Mother] needs Dr. Poole here.” N.T., 10/25/22, at 87.
Foster Mother’s counsel stated that he “was just going to have [Foster Mother]
say that this was the evaluation that was given to her. She would be able to
authenticate” it. Id. The trial court ruled that Foster Mother “can’t self-
authenticate” the evaluation and did not admit the document or allow Foster
Mother to present any evidence related to authentication. Id.
We conclude that the trial court abused its discretion in not permitting
Foster Mother to attempt to authenticate the evaluation document. M.R.F.,
III, 182 A.3d at 1056 (we apply an abuse of discretion standard of review
when reviewing trial court evidentiary rulings). To the extent the trial court
ruled that the testimony of the author of the document, Dr. Poole, was
necessary for its authentication, this was an incorrect statement of the law.
Rule 901 and our caselaw interpreting the rule do not require that the author
of a document personally testify as to the genuineness of a document for it to
be authenticated.4
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4 See, e.g., Pa.R.E. 901(b)(1) (requiring only testimony of a witness with
knowledge for authentication); Gregury, 196 A.3d at 634 (trial court abused
(Footnote Continued Next Page)
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Furthermore, the fact that Foster Mother could not self-authenticate the
evaluation, as the trial court stated at the hearing, N.T., 10/25/22, at 87, does
not end the authentication inquiry. Although the evaluation does not fall
within any of the types of self-authenticating evidence set forth in Rule of
Evidence 902 that do not require extrinsic evidence for authentication, see
Pa.R.E. 902(1)-(15), Foster Mother could still have attempted to authenticate
the document under the general authentication standard set forth under Rule
901. For example, Foster Mother could have provided testimony that she
requested that Dr. Poole complete the evaluation document and Dr. Poole
personally handed it to her, which could have met Foster Mother’s burden of
showing that the document “is what [she] claims it is.” Pa.R.E. 901(a). The
trial court’s refusal to allow Foster Mother any opportunity to authenticate the
evaluation through her testimony constituted an abuse of discretion.
While the trial court improperly barred Foster Mother from presenting
testimony to authenticate the evaluation, she suffered no prejudice from the
erroneous ruling and therefore she is entitled to no relief on appeal. An
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discretion by ruling that handwritten, unsigned documents by proponent’s
deceased father were unauthenticated where son testified that the writing on
the documents matched that of the decedent and the stationary was the type
that the decedent used); Zuk, 55 A.3d at 112-13 (maps were properly
authenticated through testimony of joint property owner in spite of the fact
that surveyor who prepared the map did not testify and proponent did not
even know the name of the surveyor); see also Commonwealth v.
Williams, 241 A.3d 1094, 1102 (Pa. Super. 2020) (document may be
authenticated through, inter alia, “the testimony of a witness who saw the
author sign the document” or “proof that the document or its signature is in
the purported author’s handwriting”).
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evidentiary ruling constitutes grounds for reversal only if the complaining
party was prejudiced by the ruling, with prejudice found where the trial court
error could have affected the judgment. Wright v. Residence Inn by
Marriott, Inc., 207 A.3d 970, 974 (Pa. Super. 2019); Reott v. Asia Trend,
Inc., 7 A.3d 830, 839 (Pa. Super. 2010), affirmed, 55 A.3d 1088 (Pa. 2012).
Even if Dr. Poole’s evaluation of Foster Mother were admitted, there is no
showing that its contents would have been admitted for their truth under the
rules of evidence,5 nor does it appear that Foster Mother intended to delve
into Dr. Poole’s diagnosis and evaluation during her testimony. See N.T.,
10/25/22, at 20 (Foster Mother’s counsel objecting to question posed to DHS
supervisor regarding substance of her conversations with Dr. Poole). Instead,
it appears that Foster Mother solely sought to introduce the document to
demonstrate that she provided the mental health evaluation to DHS in
February 2022 as requested, a fact to which she still testified despite the trial
court’s ruling, and that a DHS supervisor confirmed during her own testimony.
Id. at 19, 36-37, 44, 86, 88. Therefore, it appears that the admission of the
evaluation as an exhibit would have added no value to Foster Mother’s case,
and she avers to no prejudice in her brief aside from the mere fact of the
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5 It does not appear that any of the relevant hearsay exceptions apply to the
evaluation. See Pa.R.E. 803, 803.1, 804; see also Pa.R.E. 802, Comment.
Notably, the evaluation would not have been admissible under the business
records exception as no testimony was offered by a document custodian and
the document contained statements of diagnosis or opinion, which are not
admissible under that exception. See Pa.R.E. 803(6) & Comment; In re
A.J.R.-H., 188 A.3d 1157, 1167-69 (Pa. 2018).
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document’s preclusion. Accordingly, as Foster Mother was not harmed by the
trial court’s erroneous evidentiary determination, she is entitled to no relief.
Having found no merit to Foster Mother’s appellate issue, we affirm the
trial court’s October 25, 2022 order granting DHS’s motion for judicial removal
and barring Child’s return to Foster Mother’s care.6
Order affirmed.
Judge Kunselman joins the memorandum.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2023
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6 The statement of the case portion of Foster Mother’s brief includes multiple
argumentative assertions regarding various supposed errors occurring over
the course of the dependency proceedings. See, e.g., Foster Mother’s Brief
at 9-10 (Child’s removal was “based on false statements”; the DHS supervisor
committed perjury in a prior proceeding; DHS violated federal health care
privacy law; DHS supervisor committed perjury in prior proceeding; DHS
failed to provide discovery; and Foster Mother was denied the right to counsel
and to participate in prior proceedings in this case). In addition to the
inclusion of such argument in the statement of the case being in violation of
our appellate rules, see Pa.R.A.P. 2117(b), none of these additional claims of
error are sufficiently developed such that we could conduct a review on their
merits.
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