In Re: X.J.N. Appeal of: B.S.N. and V.J.N. parents

• Court: Superior Court of Pennsylvania
• Decided: September 16, 2015
• Docket: 209 WDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: X.J.N., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

APPEAL OF: B.S.N. AND V.J.N., NATURAL PARENTS,

Appellants No. 209 WDA 2015

Appeal from the Order January 15, 2015 In the Court of Common Pleas of Butler County Domestic Relations at No(s): CP-10-DP-0000054-2012

IN RE: Z.M.N., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellants No. 210 WDA 2015

Appeal from the Order January 15, 2015 In the Court of Common Pleas of Butler County Domestic Relations at No(s): CP-10-DP-0000055-2012

IN RE: Z.M.N., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellants No. 222 WDA 2015 J-S52015-15

Appeal from the Decree January 15, 2015 In the Court of Common Pleas of Butler County Orphans’ Court at No(s): OA No. 43 of 2013

IN RE: X.J.N., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellants No. 223 WDA 2015

Appeal from the Decree January 15, 2015 In the Court of Common Pleas of Butler County Orphans’ Court at No(s): OA No. 44 of 2013

BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 16, 2015

B.S.N. (“Mother”) and V.J.N. (“Father”) (collectively, “Parents”) appeal

from two orders and two decrees entered January 15, 2015, in the Court of

Common Pleas of Butler County concerning their parental rights to their

minor children, Z.M.N., born in February of 2005, and X.J.N., born in

February of 2007 (collectively, “Children”).1 Because the sole issue

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1 The case docketed at 209 WDA 2015 is an appeal from the permanency review order relative to X.J.N.; 210 WDA 2015 is an appeal from the permanency review order relative to Z.M.N.; 222 WDA 2015 is an appeal from the decree terminating Parents’ parental rights to Z.M.N.; 223 WDA 2015 is an appeal from the decree terminating Parents’ parental rights to (Footnote Continued Next Page)

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remaining for appellate review was not properly preserved in the trial court,

it is waived. Accordingly, we affirm.

The salient facts are gleaned from the trial court’s orders and opinions

and from our independent review of the certified record.2 On April 9, 2012,

the Butler County Children and Youth Agency (“CYS”) received a call from

Butler City Police regarding allegations of illegal drug activity in Parents’

home. A search of the premises uncovered marijuana plants, growing

materials, Suboxone pills, and drug paraphernalia. It was later discovered

that Children would water the marijuana plants. Parents were charged with

felony drug charges and endangering the welfare of children. Trial Court

Opinion, 1/15/15, at 2.

On April 16, 2012, Parents signed over guardianship of Children to

Mother’s friend, S.M-K., who resided in Alabama. On that same day, CYS

closed its case with the family. Trial Court Opinion, 1/15/15, at 2.

On June 4, 2012, CYS reopened the case because Children were now

living with their maternal grandparents in Butler. Parents’ whereabouts

were unknown to the grandparents, who were having difficulties enrolling

_______________________ (Footnote Continued)

X.J.N. The appeals were consolidated sua sponte by per curiam order on February 25, 2015. 2 Honorable Kelley Streib presided over both the goal change proceedings in the Juvenile Division of the Court of Common Pleas of Butler County and the termination proceedings adjudicated in the Orphans’ Court Division. For simplicity, we employ the general term “trial court” in our discussion.

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Children in school and in obtaining medical treatment for them. Although

CYS searched for and discovered six different addresses for Parents, letters

sent to those addresses were returned. On June 19, 2012, Children were

officially detained and placed in the care of the maternal grandparents. Trial

Court Opinion, 1/15/15, at 3–4.

On July 24, 2012, Children were adjudicated dependent for lack of

proper parental care and control as a result of abandonment, and lack of a

parent, guardian, or legal custodian. Orders Adopting Master’s Adjudication,

7/24/12, at 1. Although the CYS caseworker made a number of attempts to

notify Parents, they did not appear at the adjudication hearing. Trial Court

Opinion, 1/15/15, at 3–4.

In October of 2012, CYS learned that both Parents were incarcerated

in Butler County. CYS communicated with Parents and informed them of the

physical location of the placement of Children. Mother responded and

inquired about procedures to be followed in order to send letters to the

Children. Mother and Father requested visitation with Children, but the

Butler County Prison did not allow visits with inmate’s children. Parents sent

numerous letters to Children while incarcerated. Trial Court Opinion,

1/15/15, at 4–5.

Petitions for involuntary termination of parental rights were filed

against Parents on September 25, 2013. A permanency review hearing was

held on October 8, 2013. Although the trial court found that Parents’

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exhibited minimal adherence to the permanency plan due to their

incarceration, the placement goal for Children remained reunification, with

adoption as a concurrent placement plan. Permanency Review Order,

10/28/13, at 1.

On November 5, 2013, CYS filed a motion for goal change. Citing non-

compliance with the recommendations to facilitate reunification, CYS

requested that the goal be changed from reunification to termination of

parental rights and adoption. CYS Motion, 11/5/13, at unnumbered 2.

Mother and Father were released from incarceration in November and

December, respectively, of 2013. At that time, Parents requested visitation

with Children. During a January 14, 2014 hearing, the court denied their

request because petitions for termination of parental rights already had been

filed, and Children had not seen Parents since April of 2012. The court also

ordered bonding assessments before allowance of visitation and consolidated

the visitation issue with the termination hearing. Trial Court Opinion,

1/15/15, at 5.

The court-appointed bonding evaluator, Dr. Jeffrey Wolfe, met with

Parents on May 5, 2014, and June 7, 2014. He also conducted an

interactional observation of Parents and Children together on June 16, 2014.

On June 18, 2014, Dr. Wolfe met with the maternal grandparents after

which he saw Parents for a fourth time. On July 3, 2014, Dr. Wolfe

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conducted an interactional observation between Children and the maternal

grandparents. Trial Court Opinion, 1/15/15, at 5.

The trial court held hearings on the termination petitions on July 29,

2014, August 27, 2014, and September 26, 2014. Additionally, Dr. Wolfe

was deposed on September 8, 2014, and the transcript of the deposition was

admitted into evidence at the September 26, 2014 hearing. N.T., 9/26/14,

at 20.

On January 15, 2015, the trial court filed findings of fact supporting its

permanency review goal-change orders and two opinions and decrees

explaining its decision to terminate Parents’ parental rights under 23 Pa.C.S.

§ 2511(a)(1) and (b). Parents timely appealed.

On February 4, 2015, Mother and Father filed Pa.R.A.P. 1925(b)

statements of errors complained of on appeal raising five issues. 3 However,

in their appellate brief, Mother and Father concede all but one of the issues

raised in their 1925(b) statements. The remaining issue is whether the trial

court committed an error when it “ruled that the written expert report

detailing the methodology and reasoning used by Dr. Wolf[e] in completing

the bonding assessment was inadmissible?” Parents’ Brief at 7. More

specifically, Parents argue in their brief that the trial court should have ____________________________________________

3 On April 20, 2015, the trial court issued memoranda in compliance with Pa.R.A.P. 1925(a). We note that Parents failed to append a copy of the trial court’s April 20, 2015 opinion to its appellate brief as required by Pa.R.A.P. 2111(b).

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admitted Dr. Wolfe’s written expert report under the business records

exception to the hearsay rule. Id. at 20–25.

We employ a deferential standard when reviewing a trial court’s

evidentiary rulings; we will not reverse the court’s decision on admission of

evidence absent a clear abuse of discretion. In re Adoption of R.K.Y., 72

A.3d 669, 675 (Pa. Super. 2013). Furthermore, “[i]n order to preserve

application of a hearsay exception for appellate review, that specific

exception must first be raised before the trial court.” Commonwealth v.

Smith, 47 A.3d 862, 866 (Pa. Super. 2012) (holding that failure to point to

an applicable hearsay exception is a waiver). At no point during the course

of the relevant proceedings did Parents argue that the business records

exception applied. When counsel for CYS sought to admit Dr. Wolfe’s

written report into evidence at the deposition, the guardian ad litem

objected. Deposition of Dr. Jeffrey Wolfe, 9/8/14, at 43. At the conclusion

of the deposition, the guardian ad litem represented that he wanted to

preserve his objection to the admission of the written report. Id. at 101.

Counsel for Parents did not offer any argument that the report was

admissible. Subsequently, at the September 26, 2014 termination hearing,

the guardian ad litem again raised his objection to the admission of

Dr. Wolfe’s written report because it was “cumulative and unnecessary.”

N.T., 9/26/14, at 17. Parents’ counsel counter-argued that the report was

admissible because the trial court “should have every piece of

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documentation possible to make your decision, and there is a lot of

background explanatory information in that report that you would need, that

you cannot get just from the deposition.” Id. The trial court ruled that the

written report was inadmissible because it was hearsay, and perhaps

cumulative. Id. at 18. At this point, Parents’ counsel reminded the trial

court that she had objected to Dr. Wolfe’s testimony via deposition and

contended that if he testified at the hearing, the report could have been

authenticated and the hearsay problem would have been alleviated. Id. at

19. The trial court responded that authentication of the report was not

crucial to the hearsay issue, explaining instead that: “An expert’s report is

always hearsay. It is an out-of-court statement offered for the truth of the

matter asserted. And there is no exception under the hearsay rule to that.”

Id. Parents’ counsel offered no further argument propounding admission of

the report.

We conclude, therefore, that Parents waived their argument pertaining

to the business records exception. Parents never asserted this particular

claim during Dr. Wolfe’s deposition or before the trial court during argument

on the guardian ad litem’s objection to the report’s admission. Additionally,

Parents did not invoke the business records exception in their Pa.R.A.P.

1925(b) statements. Issues may not be raised for the first time on appeal.

Pa.R.A.P. 302(a); see also Fazio v. Guardian Life Insurance Company

of America, 62 A.3d 396, 412 (Pa. Super. 2012) (holding that insured’s

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claim that letters written by attorney should have been admissible under

business records hearsay exception was not properly before appellate court,

where insured did not raise hearsay exception before trial court).

Accordingly, we affirm the goal change orders and the decrees terminating

Parents’ parental rights as to Children.

Orders Affirmed. Decrees Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/16/2015

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