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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.U., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.C., MOTHER
: No. 3237 EDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-DP-0001453-2016,
FID: 51 -FN -001560-2016
IN THE INTEREST OF: H.U., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.C., MOTHER
: No. 3390 EDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-DP-0001451-2016,
FID: 51 -FN -001560-2016
IN THE INTEREST OF: S.U., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.C., MOTHER
: No. 3391 EDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-DP-0001452-2016,
J -S23016-17
FID: 51 -FN -001560-2016
IN THE INTEREST OF: J.U., A MINOR : IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.C., MOTHER
: No. 3392 EDA 2016
Appeal from the Order Entered September 27, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-DP-0001450-2016,
FID: 51 -FN -001560-2016
BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 08, 2017
Appellant T.C. ("Mother") appeals from orders entered September 27,
2016, which continued the suspension of visits with her children, J.U. (born
2001), H.U. (born 2003), S.U. (born 2008), and A.U. (born 2013)
(collectively "Children"), pending a future hearing.' We affirm.
We adopt the facts as set forth by the trial court:
On June 6, 2016, the Department of Human Services
("DHS") received a Child Protective Services ("CPS") report
alleging that J.U. was raped by her stepfather, D.G. On June 7,
2016, D.G. was arrested and charged with rape by forcible
compulsion, inter a/ia. D.G. is currently incarcerated at Curran-
Fromhold Correctional Facility ("CFCF"). Thereafter, Mother
began working with the Philadelphia Housing Authority ("PHA")
' "All orders dealing with custody or visitation, with the exception of
enforcement or contempt proceedings, are final when entered." In re
H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (citation omitted).
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to obtain a different apartment and Mother obtained a Protection
from Abuse ("PFA") order against D.G. On June 27, 2016, DHS
visited the Mother's home, where the Children were determined
to be safe. (Statement of Facts: Petition to Determine
Dependency RE J.U.)
On July 13, 2016, DHS received a General Protective
Services ("GPS") report which alleged that Mother was not
cooperating with the criminal investigation against D.G.; Mother
would not allow J.U. to testify against D.G.; Mother planned to
reside with D.G. if he was released from incarceration; and that
a bench warrant was issued against Mother for contempt of court
in connection with her lack of cooperation in D.G.'s criminal
matter. When Mother was arrested on July 13, 2016 pursuant to
the bench warrant, police officers discovered correspondence
between Mother and D.G.; that J.U. was anxious to testify
against D.G.; and that Mother forced J.U. to speak with D.G. on
the phones; and Mother brought the Children to visit D.G. in
prison. On July 13, 2016, DHS obtained an OPC [(Order of
Protective Custody)] for the Children and the Children were
placed in a foster home through Jewish Family and Children
Services ("JFCS"). (Statement of Facts: Petition to Determine
Dependency RE J.U.). On July 25, 2016, a dependency hearing
was heard before the Honorable Judge Vincent Furlong and the
Children were adjudicated dependent and the Mother was
ordered not to speak with the Children about the ongoing
criminal investigation regarding D.G. and future visits between
Mother and Children were to be therapeutic and supervised.
(Statement of Facts: Petition to Determine Dependency RE J.U.)
On September 27, 2016, the Court held a permanency
review hearing to determine if T.C. ("Mother") should be allowed
to resume supervised visitation with the Children. Prior to said
hearing, CUA [(Community Umbrella Agency)], Mother and the
Child Advocate had entered into an agreement to suspend
visitation between Mother and the Children because [of]
Mother's violation of a Court Order which stipulated that her
visits with the Children be supervised. Mother was present and
represented by counsel during said hearing. After a full hearing
on the merits, the Court found clear and convincing evidence
that visitation between the Mother and Children was to remain
suspended because sufficient evidence had been presented as to
Mother's moral deficiency. The Court found Mother posed a
grave threat to the Children during and after the prior visitations
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and Mother had violated prior court orders to not visit the
Children without supervision. The Court found Mother continued
to send text messages to J.U. and continued to interfere with the
criminal investigation of D.G. despite Court Orders not to cause
such interference. The Court also found that Mother had met the
Children in secret without supervision and that Mother had
encouraged the Children to lie to their Foster Parent and
Therapists.
1 Mother is mute.
Trial Ct. Op., 12/9/16, at 2-4.
The orders entered on September 27, 2016, as a result of the hearing,
stated that Mother's visits are to remain suspended "until further order of
the court"; the Children shall remain in foster care and in the legal custody
of DHS; the Children may be placed outside of the county; Mother is to
continue mental health treatment and parenting classes; and Mother is
ordered to stay away from Children and their schools. The orders also stated
that the permanency goals for the Children are to return to their parent or
guardian, and that the next permanency hearing was to be held on
December 19, 2016.
On her appeal from those orders, Mother raises the following issues:
1. Did the court err when suspending Mother's visitations, a
legislatively protected interest, when there was no competent
evidence presented as to Mother's mental or moral deficiency?
2. Did the court err when suspending Mother's visitations, a
legislatively protected interest, when there was no competent
evidence presented as to Mother's posing great threats to the
children during and after the visitations?
3. Did the court err when suspending Mother's visitations, a
legislatively protected interest, when there was no competent
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evidence presented as to DHS['] inability to provide Mother with
a practicable solution for visitations?
Mother's Brief at 2.
[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. Accordingly, we
review for an abuse of discretion.
In re L.V., 127 A.3d 831, 834 (Pa. Super. 2015) (quoted citation omitted).
"In dependency proceedings our scope of review is broad. . . . [W]e must
exercise our independent judgment in reviewing the court's determination,
as opposed to its findings of fact, and must order whatever right and justice
dictate." In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (quoted citation
omitted), appeal denied, 871 A.2d 187 (Pa. 2005).
We summarize Mother's arguments in support of her issues. First,
Mother argues that the trial court's conclusion that Mother has a mental or
moral deficiency which poses a grave threat to the Children is speculative,
because it is based on Mother's past actions. Mother's Brief at 7-8. Mother
claims she "can cease her actions based on the results of the ongoing
investigations. She can also cease her actions with the help of counseling
and therapy such as mandated in a dependency proceeding." Id. at 8.
Mother asserts that her communications with the younger children are
harmless, because they are not involved in the pending criminal case. Id.
Similarly, Mother contends that, "since there was no evidence of any clear
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and present danger of physical harms to the Children during the visitations,
the burden is on DHS to prove that the Mother's visitations left the Children
with serious emotional or psychological harms after the visitations." Id. at 9-
10.
Next, Mother argues that in In Re B.G., 774 A.2d 757 (Pa. Super.
2001), this Court held that children around the age of J.U. are required to
"police themselves" to some extent, despite poor lapses of judgment made
by their parents, and that suspension of visits can cause more psychological
harms to a child than placing some responsibility to self -regulate on the
child. Mother's Brief at 10-12 (citing B.G., 774 A.2d at 764). Mother
suggests that the fact that the Children became uncooperative with their
caseworker is only a typical manifestation of separation from their parents,
and that "courts do not abrogate the parental visitation rights on account of
these changes." Id. at 13 (citing B.G., 774 A.2d at 764).
Finally, Mother argues that the court erred in suspending visitation
because DHS did not prove that there is no practicable means of allowing
visitations without violation of its orders. Mother's Brief at 14-16 (citing In
re Rhine, 456 A.2d 608, 612 (Pa. Super. 1983)). According to Mother, the
court should have found Mother in contempt of court for violating its order,
rather than suspending visitations. Id. at 14-15. Mother argues that because
she is mute, DHS should be able to devise a way to have visitations occur
while still protecting the children. Id. at 16.
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Regarding our review of visitation restrictions, we have stated -
Where, as here, reunification still remains the goal of the family
service plan, visitation will not be denied or reduced unless it
poses a grave threat. . . .
The "grave threat" standard is met when the evidence clearly
shows that a parent is unfit to associate with his or her children;
the parent can then be denied the right to see them. This
standard is satisfied when the parent demonstrates a severe
mental or moral deficiency that constitutes a grave threat to the
child.
L.V., 127 A.3d at 839 (citations omitted). "[P]arents whose visitation is
opposed by the state constitute a grave threat to their child only where
there are no practicable visitation options that permit visitation and protect
the child." Rhine, 456 A.2d at 614. "Unless the state demonstrates with
clear and convincing evidence that even supervised visitation would severely
endanger the child, the court must deny the complete foreclosure of parental
visitation as being contrary to the Act's goal of family preservation." Id.;
accord In re Mary Kathryn T., 629 A.2d 988, 995 (Pa. Super. 1993),
appeal denied, 639 A.2d 32 (Pa. 1994).
The "grave threat" standard is met not only where a parent poses a
physical threat to their child, but when the child is in danger of emotional
abuse. See, e.g., C.B., 861 A.2d at 294 (where a father's visits to his son
were suspended based on the father's heinous sexual abuse of the son's
half-sister in his son's presence, affirming that such "clearly established
moral depravity" poses a grave threat, justifying suspension of visitation
rights). Moral deficiency constituting a grave threat can also be based on a
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parent's failure to protect a child from previous abuse by the other parent,
or a parent's continued association with an abusive parent. L.V., 127 A.3d at
840. In L.V., for example, we affirmed the termination of visits with an
infant's mother where it was shown that the infant suffered physical abuse
at the hands of his father, the mother either knew or should have known of
that abuse, and the mother continued to associate with the father even after
the abuse had been discovered and the father imprisoned. Id. at 833-36,
840.
However, prior poor judgment by a parent, when not indicative of a
child's danger of future harm, does not constitute a grave threat. See B.G.,
774 A.2d at 762-63 (Mother did not pose a grave threat where she exercised
poor judgment during two visits by supplying her 14 -year -old daughter with
cigarettes and by telling her the location of her prior abuser, where there
was no evidence of physical or emotional ill effects resulting from the visits);
Mary Kathryn T., 629 A.2d at 991-96, (trial court's conclusion that parents
posed a grave threat was not supported by the evidence, where testimony
established that both parents had engaged in therapy to improve their
parenting skills).
"In rare instances, we have approved restricting or temporarily
suspending visitation even though there has been no showing of such severe
mental or moral deficiencies in the parent as would constitute a grave threat
to the child's welfare." In re Damon B., 460 A.2d 1196, 1198 (Pa. Super.
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1983) (emphasis in original). In Damon B., we affirmed a reduction in
visitation, not based on the mother's moral deficiency, but because of the
psychological ill-effects the visits caused to her son. Id. We stressed,
however, that "[o]ur decision in this case is influenced by the fact that this is
a temporary reduction in visits rather than a long-term cessation of visits. In
the latter case, of course, the trial court must find, by clear and convincing
evidence, that visitation poses a grave threat to the child." Damon B., 460
A.2d at 1198 n.1 (emphasis in original). In Damon B., the trial court was
scheduled to review the determination within the next seven months. Id. at
1198.
In the case at hand, the trial court concluded that "the testimony of
the DHS worker and the documentation presented to the Court provided
clear and convincing evidence that Mother's continued visitation with the
Children constituted a grave threat" and that "continued visitation by the
Mother caused significant emotional effects to the Children." Trial Ct. Op. at
5-7 (unpaginated). The trial court based its conclusion on both the actions
by Mother and their effects on the Children. The court found that Mother
violated the court's order not to communicate with the Children regarding
the criminal investigation of D.G. and the court's order that all
communications and visitations be supervised; Mother did this by meeting
with the Children without the knowledge of DHS, providing a cell phone, and
secretly texting the Children. Id. at 5-6. Moreover, in her text messages,
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Mother encouraged the Children to lie to their foster parent and therapists in
order to interfere with both the placement of the Children and the
prosecution of D.G. Id. The court also found that these secret and
unsupervised interactions had emotional effects on the Children: they
caused J.U. to have suicidal ideations and to be placed in a mental
healthcare facility, and led all of the Children to become secretive and
defensive in their interactions with DHS. Id. The trial court based most of its
factual findings on the testimony of the DHS case manager, which, the court
stated, "was deemed credible and accorded great weight." Id. at 6.2
We find that the trial court's conclusions are well -supported by the
record. Before the Children were put into placement, Mother continued to
associate with D.G.; prevented J.U. from testifying against D.G. at the
preliminary hearing on his rape charges; and made J.U. speak to D.G., her
alleged rapist, on the telephone. After the Children were put in placement
and Mother was ordered to have supervised visits only, Mother did not just
violate the court's order by seeing the Children and communicating via
secret text messages, but Mother actually told the Children to lie in court,3
2
The case manager who testified at the hearing works for the CUA
placement center used by DHS. N.T., 9/27/16, at 4.
3 Mother asked her Children to act "dramatic, crying, and begging" in their
interactions with the District Attorney. N.T. at 14.
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to DHS,4 to their foster parent,5 and to their therapists.6 Evidence of these
conversations was introduced through screen shots of the text messages
from Mother found on one of the Children's cell phones. Additionally, Mother
provided expired sleeping pills to her daughter, unbeknownst to her
caretakers. Id. at 21. The immediate results of Mother's words and actions
were that her oldest daughter, J.U., was placed in a mental healthcare
4Mother asked the Children to lie if anyone asked whether a former foster
mother assisted in one of Mother's unsupervised visits. N.T. at 16.
5 Mother asked J.U. to lie about whether Mother had visited her at school.
N.T. at 21-23.
6
Mother's text messages to J.U. instructed:
[W]hen you start therapy, dominate every session. All you want
to talk about is seeing your mom and going home with your
brothers. Make them listen. Let them know I did not make you
talk to [D.G.] so we could communicate. It's a habit for you to
answer my phone when it rings. And that's what you did.
I would hang up, but [D.G.] would call back. And you felt like
that's your dad calling to answer. Play these people how they try
to play you.. . .
You are far too intelligent to let these people get you got. You
can dominate this entire situation. You are your mother's child.
You're a little me. So, I know you're capable. If you can
manipulate them instead of them doing it to you, and we can be
back together before Christmas if we work on this together.
N.T. at 27-28.
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facility due to suicidal ideations, Id. at 7, 10,7 and the other Children
became secretive and uncooperative with their caseworker. Id. at 29-30.
We therefore find, contrary to Mother's assertions in her first two
issues, that clear and convincing evidence was presented that Mother has
moral deficiencies and that these deficiencies pose a grave threat to her
Children. Like the mother in L.V., 127 A.3d at 833-36, 840, Mother does not
pose a direct physical threat to her Children, but continually exercises
judgment that puts the Children in harm's way through such things as
continued interactions with D.G., encouraging the Children to deceive their
caretakers regarding their whereabouts, and providing secret (and expired)
medication. Mother's actions are not the minor lapses in judgment exhibited
by the Mother in B.G., 774 A.2d at 762-63, but exhibit a persistent intent to
interfere with the Children's ability to engage in honest communication with
their therapists and caretakers.
We are troubled by the great lengths to which Mother has gone in an
attempt to influence her daughter's testimony, despite being ordered not to
do so. The record substantiates that such interference from a parent is
bound to place undue stress on a child, and we agree with the trial court
that under these circumstances, suspension of visitation is the most
appropriate response. And, while most of Mother's actions have thus far
J.U.'s mental state was attributed to stress regarding Mother getting into
trouble for communicating with her. N.T. at 10.
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been directed at her two older children,8 and have caused the most tangible
harm to her eldest child, the trial court understandably was concerned by
the impact that Mother's moral deficiencies would have during visitation with
her younger children as well.
Moreover, like Damon B., 460 A.2d at 1198 n.1, this case involves
only a temporary restriction on visitation. The child advocate requested that
visits be suspended until Mother completed parenting classes and therapy.
N.T. at 34, 40. The trial court ordered an early relisting of the case, inviting
Mother to present evidence that she completed parenting classes and no
longer posed a danger to her Children. N.T. at 41. The court scheduled the
next hearing to take place before three months had passed. Id. The trial
court did not abuse its discretion in ordering such a temporary cessation of
visits in its attempt to protect the Children from their Mother. Cf. Damon
B., 460 A.2d at 1198 (holding no abuse of discretion where the court was
scheduled to review the determination within the next seven months).
Mother's arguments fail to recognize that almost all predictions of
future behavior are based on past behavior, and that the trial court properly
took into consideration Mother's ability to change by short -listing a hearing
to review its determination. Further, with respect to Mother's contention that
8 The record reflects that Mother sent text messages to J.U. and H.U., and
that the text messages between Mother and H.U. had been deleted before
the Children's caseworker could see them. N.T. at 8-9, 29.
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her communications with H.U. were harmless, we acknowledge that nothing
in the record has established whether H.U. will be asked to testify at D.G.'s
trial. But, as have stated, suspension of visitation is not appropriate merely
to protect the criminal case against D.G. from tampering, but to protect the
Children from the stress and moral dilemma they may face as a result from
their Mother's attempts to interfere with that criminal case. Mother's
insistence that there was no evidence of serious psychological harms misses
the point: the trial court properly evaluated whether Mother poses a grave
threat of such harm. The same evidence that demonstrates the harm
already done to Mother's eldest daughter evinces the grave threat of harm
Mother also poses to her younger children, whom she continues to
manipulate. Mother's suggestion that J.U. was required to "police" herself to
prevent Mother's poor lapses of judgment does not excuse the trial court's
finding that Mother's unsupervised and unauthorized actions have caused
J.U. such significant psychological harm as to warrant medical intervention,
and pose a grave threat to the Children's emotional stability.
Under the facts of this case, the trial court's temporary suspension of
Mother's visitation rights was appropriate. Mother's visitation was not
suspended merely because she disobeyed the court, but because the
unsupervised visits and communications that she had with the Children
exhibited a wonton moral deficiency that had already begun to cause harm
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to her Children. The record does not establish any practicable viable
alternatives other than a temporary suspension.
Having discerned no abuse of discretion, we affirm the order below.
See L.V. , 127 A.3d at 834.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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