In the Int. of: L.R., Appeal of: A.M.

• Court: Superior Court of Pennsylvania
• Decided: November 28, 2023
• Docket: 1041 EDA 2023
• Status: Unpublished

Opinion

J-S37001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: L.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.M., MOTHER : : : : : : No. 1041 EDA 2023

Appeal from the Order Entered March 27, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000228-2023

IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.M., MOTHER : : : : : No. 1042 EDA 2023

Appeal from the Order Entered March 27, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000229-2023

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 28, 2023

A.M. (“Mother”) appeals from the orders of adjudication and disposition

entered by the Philadelphia County Court of Common Pleas on March 27,

2023, with respect to her sons, L.R., born in December of 2011, and C.R.,

born in April of 2019 (collectively, “the Children”).1 We affirm. ____________________________________________

1 The Children’s father died of a drug overdose on a date unspecified in the

record. See N.T., 3/27/23, at 10. J-S37001-23

The certified record reveals that the Philadelphia Department of Human

Services (“DHS”) received a general protective services report as well as a

supplemental report on March 3, 2023, which raised concerns regarding

Mother’s “behavioral health.” N.T. at 6-7. On March 9, 2023, the DHS

investigator, Gabrielle Rivera, visited Mother and the Children in their home,

at which time Mother denied the concerns set forth in the report. Id. at 7-8.

However, Mother made concerning statements to Ms. Rivera, including

“stating that there w[ere] toys delivered to the home with cameras in them.

She also was reporting that people were breaking into her home and changing

her bleach and her son’s gel to aloe, and her eyelash glue to suntan lotion.”

Id. at 8. Further, Ms. Rivera testified that Mother “believed that someone was

messing with her and also hacking her phone.” Id. at 9.

Later that day, the trial court issued orders of protective custody with

respect to the Children, and DHS placed them in the home of their paternal

aunt. Id. at 10-11. The trial court held a shelter care hearing on March 10,

2023, which resulted in the court lifting the orders of protective custody and

ordering the temporary commitment of the Children to stand.

In addition, Mother was involuntarily committed to a mental health

hospital identified as Malvern Hospital on March 10, 2023. Id. at 9-10, 19.2

According to Fela Hope, the community behavioral health court

representative, Mother was discharged from the hospital on March 16, 2023, ____________________________________________

2 See Mental Health Procedures Act, 50 P.S. § 7302 (Involuntary examination

and treatment authorized by a physician).

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with the recommendation “that she do an [intensive outpatient program] and

medication management.” Id. at 19.

On March 14, 2023, DHS filed dependency petitions pursuant to the

Juvenile Act, 42 Pa.C.S. §§ 6301-6365. The subject proceeding occurred on

March 27, 2023. By this time, the Children were placed in “general foster

care” after their paternal aunt informed DHS on March 14, 2023, that she was

no longer willing to care for them. Id. at 11.

DHS presented the testimony of Ms. Rivera and Ms. Hope. Mother

appeared for the proceeding and was represented by counsel, but she did not

testify. Mother introduced a single piece of documentary evidence during the

hearing, which the court admitted — “a letter from Prevention Point

Philadelphia in regard to Mother being a participant in their stabilization-

treatment-engagement program (‘STEP’).” Trial Court Opinion (“TCO”),

6/26/23, at 7 (citing N.T. at 22).

By orders of adjudication and disposition dated and entered on March

27, 2023, the court adjudicated the Children dependent pursuant to 42 Pa.C.S.

§ 6302, found that allowing the Children to remain in Mother’s home would be

contrary to their welfare, and transferred legal custody of the Children to DHS.

Mother timely filed notices of appeal and concise statements of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which

this Court consolidated sua sponte. The trial court filed its Rule 1925(a)

opinion on June 26, 2023.

On appeal, Mother raises the following issues for review:

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1. Did the trial court err as a matter of law and abuse its discretion by adjudicating [the Children] to be “dependent children” pursuant to 42 Pa.C.S.[] § 6302 in the absence of clear and convincing evidence that [the Children] were presently “without proper parental care and control … as required by law?”

2. Did the trial court err as a matter of law and abuse its discretion by relying on inadmissible hearsay statements to adjudicate [the Children] to be “dependent children” pursuant to 42 Pa.C.S.[] § 6302?

3. Did the trial court err as a matter of law and abuse its discretion by committing [the Children] to the legal custody of [DHS] in the absence of clear and convincing evidence that removal from Mother was clearly necessary?

Mother’s Brief at 3-4.

Our standard of review for dependency cases is as follows: [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 R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).

A dependency hearing is a two-stage process governed by the Juvenile

Act (“Act”), 42 Pa.C.S. §§ 6301-6365. The first stage requires the trial court

to hear evidence on the dependency petition and to determine whether the

child is dependent. 42 Pa.C.S. § 6341(a). Section 6302 defines a “dependent

child,” in part, as one 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. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent’s, guardian’s or other

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custodian’s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]

42 Pa.C.S. § 6302. This Court has held that a child will only be declared

dependent when he is presently without proper parental care or control, and

when such care and control are not immediately available. In the Interest

of R.T., 592 A.2d 55, 57 (Pa. Super. 1991).

The Act provides, “[i]f the court finds from clear and convincing evidence

that the child is dependent,” then the second stage of the dependency process

requires that the court make an appropriate disposition based on an inquiry

into the best interests of the child pursuant to Section 6351(a) and (b). 42

Pa.C.S. § 6341(c); see also In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007).

This Court has defined “clear and convincing” evidence as testimony that is

“so direct and unambiguous as to enable the trier of fact to come to a sure

determination, without conjecture, of the truth of the exact facts at issue.” In

the Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997).

Regarding when a child should be removed from parental custody, this

Court has stated: The law is clear that a child should be removed from her parent’s custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child’s well- being. In addition, this [C]ourt had held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.

In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980) (citations omitted).

In addition, we have stated, “it is not for this [C]ourt, but for the trial court

as factfinder, to determine whether [a child’s] removal from her family was

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clearly necessary.” In the Interest of S.S., 651 A.2d 174, 177 (Pa. Super.

1994).

In her first issue, Mother argues that the statements she made to the

DHS investigator at the time of her visit were insufficient evidence to

adjudicate the Children dependent. See Mother’s Brief at 12-13. Further,

Mother argues that DHS did not present any evidence that her mental health

impacted her ability to provide proper parental care to the Children. See id.

Likewise, Mother argues that DHS did not present any evidence that she was

using illicit drugs or that her drug use impacted her ability to provide proper

parental care. See id. at 13. We disagree.

In its Rule 1925(a) opinion, the trial court found as follows, in part: While the Children were in Mother’s care, Mother was having hallucinations and displaying erratic behavior to the extent that she needed to be hospitalized. (N.T. … at 6-9). DHS’s investigator witnessed Mother’s paranoia and erratic behavior firsthand while at Mother’s home. (Id. at 6-10). Mother informed her that toys were delivered to the home with cameras in them. (Id. at 8). Mother also told the investigator that people had broken into the home and tampered with bleach and personal hygiene products in the home. (Id.) The investigator checked the bleach and personal hygiene products and did not find anything abnormal or concerning. (Id. at 16). Mother refused mental health treatment but admitted that “bad things have been happening to her” since 2018. (Id. at 8).

***

The hospital determined that Mother’s diagnosis is bipolar disorder, delusional disorder, and substance abuse and recommended that Mother participate in an intensive outpatient program and medication management. (N.T. … at 19). DHS has not received an update regarding Mother’s treatment and Mother has refused to sign any release of information. (Id. at 10). Additionally, Mother’s attorney admitted into evidence a letter

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from Prevention Point Philadelphia that included drug test results from September 2, 2022[,] which was six months prior to the adjudication hearing, thus, making them irrelevant to support her denial of substance use issues. (Id. at 24). … Because of the seriousness of Mother’s mental health concerns, Mother’s lack of treatment and [the court’s] lack of knowledge regarding Mother’s substance abuse/use, this [c]ourt does not believe Mother can keep the Children safe….

TCO at 9-10. The record supports the court’s findings.

Indeed, Ms. Hope testified that specialists at the mental hospital where

Mother was involuntarily committed approximately ten days before the subject

proceeding, that is, from March 10-16, 2023, diagnosed her with “unspecified

bipolar, delusional disorder, and substance abuse.” N.T. at 19. Ms. Hope

testified that Mother had a follow-up appointment on March 21, 2023, but she

was unable to confirm that Mother attended. Id.

Mother presented a single document, a one-page letter dated March 17,

2023, from Prevention Point Philadelphia, stating that she was a participant in

the STEP program which included “medically assisted treatment and case

management services.” Exhibit M-1. Attached to the letter was a lab report

from Mother’s drug screen on September 2, 2022, more than six months

before Mother was involuntarily committed as well as six months before the

subject proceeding, which was negative for illicit substances. In addition, the

letter stated Mother had “an appointment with psychiatric services at JFK for

April 21st [at] 10:30 a.m. to ensure she is receiving wrap-around services.”

Exhibit M-1.

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Thus, the trial court was presented with competent evidence that Mother

suffered from mental illness with symptoms that included hallucinations.

Mother was also diagnosed with substance abuse the same month that the

dependency hearing occurred, and the court was presented with no evidence

to contradict this diagnosis. Although Mother was participating in the above-

described STEP program and had a future appointment scheduled for

psychiatric services, there was no evidence with respect to the stability of

Mother’s mental health at the time of the hearing. Further, Ms. Rivera testified

that the Children needed “to be connected to therapy and also grie[f]

counseling. Also [L.R.] was diagnosed with dyslexia, so he needs to be

connected to the services as well.” N.T. at 12. Based on this evidence, we

discern no abuse of discretion by the trial court’s conclusion that the Children

are without proper parental care or control necessary for their physical,

mental, or emotional health. See 42 Pa.C.S. § 6302.

In her second issue, Mother argues that the court abused its discretion

and/or erred by relying on inadmissible hearsay statements from Ms. Rivera

and Ms. Hope in adjudicating the Children dependent. Specifically, she asserts

that Ms. Rivera adduced inadmissible hearsay testimony relating to the

allegations set forth in the general protective services report, and Mother’s

involuntary commitment to the mental health hospital. See Mother’s Brief at

18 (citing N.T. at 6-7, 9-10). Mother also claims that Ms. Hope espoused

inadmissible hearsay testimony relating to the diagnoses and recommended

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treatment received by Mother as a result of her involuntary commitment. See

id. at 18-19 (citing N.T. at 19). We disagree.

It is well-settled that, “decisions on admissibility are within the sound

discretion of the trial court and will not be overturned absent an abuse of

discretion or misapplication of law. In addition, for a ruling on evidence to

constitute reversible error, it must have been harmful or prejudicial to the

complaining party.” Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014)

(citation omitted).

The Pennsylvania Rules of Evidence define hearsay as a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Pa.R.E. 801(c).

This Court has explained: As a general rule, hearsay is inadmissible, because such evidence lacks guarantees of trustworthiness fundamental to our system of jurisprudence. The rule against admitting hearsay evidence stems from its presumed unreliability, because the declarant cannot be challenged regarding the accuracy of the statement. Notably, it is elemental that, [a]n out of court statement which is not offered for its truth, but to explain the witness’ course of conduct is not hearsay.

In re K.A.T., 69 A.3d 691, 702 (Pa. Super. 2013).

First, with respect to Ms. Rivera’s testimony regarding the concerns

raised in the general protective services report, we conclude that it was not

offered for the truth of the matter asserted, but to explain how the Children

became known to DHS. Therefore, it did not constitute hearsay.

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We also conclude that Ms. Rivera’s testimony regarding Mother’s being

involuntarily committed did not constitute inadmissible hearsay because Ms.

Rivera requested that “mobile crisis” visit Mother on March 9, 2023, which

resulted in Mother’s involuntary commitment. See N.T. at 9-10, 19. As the

DHS investigator in this case, there is no indication in the record that Ms.

Rivera’s testimony regarding Mother being involuntarily committed is disputed

or otherwise untrustworthy. Rather, Mother’s involuntary commitment is a

well-established matter of record pursuant to Ms. Rivera’s personal knowledge

of these matters. See, e.g., Commonwealth v. Johnson, 838 A.2d 663,

673 (Pa. 2003) (holding that where a declarant’s testimony is based upon the

individual’s “personal knowledge” and not a mere “repetition of hearsay

declarations” then such testimony is permissible and does not constitute

hearsay). Furthermore, the fact of Mother’s involuntary commitment is

corroborated by the trial court’s March 10, 2023 protective custody orders.

Second, the relevant testimony by Ms. Hope is as follows on direct

examination by DHS’s counsel: A. As far as mom’s mental health, I do have that she was admitted on a 302 to [the mental health hospital] on 3/10. She was discharged on 3/16. They did recommend that she do an [intensive outpatient program] and medication management….

Q. [W]hat were mom’s diagnoses at [the mental hospital]?

A. Mom —

[Mother’s counsel]: Objection, hearsay.

THE COURT: Overruled.

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A. Mom’s diagnosis is unspecified bipolar, delusional disorder, and substance abuse (inaudible).

N.T. at 19.

With respect to Ms. Hope’s testimony regarding Mother’s specific

diagnoses, Mother does not indicate that this information is untrustworthy or

based upon a hearsay declaration. Our review of the record indicates that Ms.

Hope’s testimony is based upon her personal knowledge, which she gathered

as a result of being the community behavioral health representative in the

underlying matter. See, e.g., Johnson, 838 A.2d at 673.

Even assuming, arguendo, that Ms. Hope’s testimony constituted

inadmissible hearsay, we would conclude that any erroneous admission would

be harmless. It is clear that the trial court did not base its dependency finding

upon these diagnoses but upon Ms. Rivera’s direct observations of Mother.

See TCO at 9 (“Mother was having hallucinations and displaying erratic

behavior to the extent that she needed to be hospitalized. DHS’s investigator

witnessed Mother’s paranoia and erratic behavior firsthand while at Mother’s

home.”) (citing N.T. at 6-10). Thus, even if Ms. Hope’s testimony adduced in

this respect was inadmissible hearsay, we would deem it to be harmless error.

Next, concerning Ms. Hope’s testimony about Mother’s treatment

recommendations, we conclude Mother’s argument that it was inadmissible

hearsay is waived due to her counsel’s failure to object during the proceeding.

See In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (stating, “[i]n order

to preserve an issue for appellate review, a party must make a timely and

specific objection at the appropriate stage of the proceedings before the trial

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court. Failure to timely object to a basic and fundamental error will result in

waiver of that issue.”) (citation omitted); see also N.T. at 19. Even if not

waived, we would conclude that it is meritless.

Indeed, Mother introduced, and the court admitted into evidence, the

above-described letter from Prevention Point Philadelphia, stating that she

was a participant in the STEP program which included “medically assisted

treatment and case management services.” Exhibit M-1. In addition, the

letter stated Mother had “an appointment with psychiatric services at JFK for

April 21st [at] 10:30 a.m. to ensure she is receiving wrap-around services.”

Id. Based on this evidence, there is no dispute that Mother needed mental

health services, but the exact nature of the treatment and the extent of her

mental health instability was not revealed during the hearing. Therefore, even

if Mother did not waive this argument, we would conclude that it is meritless.

In her third and final issue, Mother argues that the evidence was

insufficient for the court to remove the Children from her home. Specifically,

she asserts that DHS did not consider “whether alternative services such as

in-home services and court ordered supervision could meet the Children’s

current needs.” Mother’s Brief at 23. We disagree.

As best we can discern, Mother’s argument involves the following

provision of the Act, in relevant part:

§ 6351 Disposition of dependent child.

... (b) Required preplacement findings. — Prior to entering any order of disposition under subsection (a) that would remove a

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dependent child from his home, the court shall enter findings on the record or in the order of court as follows:

(1) that continuation of the child in his home would be contrary to the welfare, safety or health of the child; and

(2) 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; or

(3) if preventive services were not offered due to the necessity for an emergency placement, whether such lack of services was reasonable under the circumstances; or….

42 Pa.C.S. § 6351(b)(1)-(3).

In this case, the trial court found that allowing the Children to be

returned to Mother’s home would be contrary to their welfare. Section

6351(b)(3), not (b)(2), is applicable because the Children were initially

removed from Mother by an order of protective custody. As such, preventive

services were not offered to Mother when the Children were placed on March

9, 2023. By adjudicating the Children and placing them in foster care, the

court found that the lack of preventive services was reasonable, and the

Children’s placement in foster care was clearly necessary, in light of the

testimony of Ms. Rivera.

Specifically, as detailed above, Ms. Rivera observed Mother’s paranoia

and erratic behavior on March 9, 2023, and she was involuntarily committed

the next day. Further, Mother’s exhibit M-1 demonstrated that her mental

health condition necessitates “medically assisted treatment and case

management services,” the details of which were not presented to the trial

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court. We will not disturb the court’s conclusion that it was necessary to

remove the Children from Mother. Accordingly, we affirm the orders.

Orders affirmed.

Date: 11/28/2023

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