In the Int. of: N.S., Appeal of: N.A.-H.

• Court: Superior Court of Pennsylvania
• Decided: June 9, 2023
• Docket: 2741 EDA 2022
• Status: Unpublished

Opinion

J-S11016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: N.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: N.A.-H., FATHER : : : : : No. 2741 EDA 2022

Appeal from the Order Entered September 26, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000237-2022,

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 9, 2023

N.A.-H. (“Father”) appeals from the order adjudicating as dependent his

child, N.S. (“Child”). We affirm.

In January 2022, the Philadelphia Department of Human Services

(“DHS”) received a General Protective Services (“GPS”) report alleging safety

concerns for three-week old Child due to Child’s mother’s (“Mother”)1 mental

health issues. N.T., 9/26/22, at 10. DHS determined the GPS report was valid

and placed Child with her maternal grandmother (“Maternal Grandmother”)

pursuant to a safety plan. Id. at 10-11, 31-32. At that time, Mother was

hospitalized for mental health treatment and DHS did not have contact

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1 Mother stipulated to the adjudication of Child and is not a party to this appeal. See N.T., 9/26/22, at 134. J-S11016-23

information for Father. Id. at 32. DHS subsequently filed a dependency

petition on behalf of Child, on March 10, 2022.

An adjudicatory hearing was initially scheduled for March 25, 2022, but

was continued several times. The hearing was eventually held on September

26, 2022. At that hearing, the court expressly incorporated by reference all

the testimony taken over the prior seven court dates. Id. at 42-44, 162-164.

Those prior hearings were on March 25, May 6, June 3, June 6, July 21, August

19, and September 14, 2022.

At the initial hearing on March 25, 2022, the court continued the case

because the court appointed Father’s counsel at the hearing, and DHS had not

served Mother with notice of the hearing. N.T., 3/25/22, at 10. Neither Mother

nor Father appeared at the hearing.

At the next hearing, on May 6, 2022, DHS requested a continuance

because Mother had not been served. N.T., 5/6/22, at 6. Father was

hospitalized at a mental health facility in Virginia. Id. at 12, 17. Prior to his

hospitalization, Father and Mother had been living together in New Jersey. Id.

at 6, 12.

Father appeared at the subsequent hearing, on June 3, 2022, and stated

that he did not want an attorney. N.T., 6/3/22, at 7. The court vacated the

order appointing Father’s counsel and appointed him new counsel. Id. at p.

9-10. Father became irate and stated that the court wanted “a fuckin’

electrocution” and that the case involved “a rape and baby death.” Id. at 7-

8. The court ordered the sheriff to remove Father from the courtroom due to

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his disruptive behavior and outburst. Id. at 8, 10. It also ordered DHS to

obtain an Order of Protective Custody (“OPC”) for Child so DHS would have

temporary legal custody of Child, and Maternal Grandmother would have

temporary physical custody. Id. at 11-12, 15.

At the next hearing, on June 6, 2022, the court was informed that DHS

had obtained an OPC. N.T., 6/6/22, at 4. The Community Umbrella Agency

(“CUA”) caseworker, Eileen Groark, testified that Father and Mother had

mental health issues and that although Mother had a Protection from Abuse

(“PFA”) order against Father, Father was not adhering to it. Id. at 12. Groark

stated that Maternal Grandmother was very fearful of Father, and he told her

he was going to kill the employees at Maternal Grandmother’s daycare. Id. at

11-12. The court issued a “stay away” order requiring Father to keep away

from Maternal Grandmother. Id. at 13, 20.

Mother and Father did not appear at the next hearing, on July 21, 2022.

Groark testified that Father was awaiting a bed at a mental health inpatient

hospital in York, Pennsylvania. N.T., 7/21/22, at 16. The court denied Mother

and Father’s request to participate in the hearing by phone for two reasons.

Id. at 5. First, the court was not equipped to accommodate both Mother and

Father by phone. Id. Second, the court explained that it would be unable to

manage Father if he participated by phone due to his outburst and removal

from the courtroom at the June 3 hearing. Id. at 5-6. The court granted

Father’s counsel’s request for a continuance due to Father’s hospitalization.

Id. at 5; N.T., 8/19/22, at 9. The court also granted Father’s motion for

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discovery and ordered DHS to provide counsel with all documents and

witnesses it intended to produce at the adjudicatory hearing in accordance

with the Child Protective Services Law. N.T., 7/21/22, at 7-8.

At the following hearing approximately one month later, on August 19,

2022, Father was present and Mother participated by phone. However, the

case was continued because DHS had not turned over the court-ordered

discovery to Father. N.T., 8/19/22, at 12, 15. The court ordered DHS to

provide the discovery within seven business days. Id. at 15. Father’s counsel

expressed Father’s desire to have custody of Child and noted that the

dependency petition did not specifically allege that Father posed a danger to

Child. Id. at 27. The court stated that it was not going to change Child’s

placement until it heard all the facts and evidence. Id. at 28. The court noted

that no visitation schedule for Father had been established due to Father being

in and out of mental health hospitals and out-of-state at times. Id. at 28-31.

The court ordered that Father have supervised visits at DHS. Id. at 32, 34.

At the hearing the following month, on September 14, 2022, DHS

requested a continuance because the DHS caseworker was not available. N.T.,

9/14/22, at 9. DHS had also turned over to counsel 400 pages of discovery

the night before the hearing. Id. The Child Advocate joined DHS’s request for

a continuance because she had not had time to review all the discovery. Id.

at 11. Father’s counsel objected to the request for a continuance and

requested that Father have custody of Child. Id. The court granted the

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continuance, over Father’s objection. Id. at 20. The court then heard

permanency review testimony from Groark.

Groark testified she tried to reach Father to set up a visitation schedule,

but Father did not respond. Id. at 13-14. The court attempted to ask Father

directly about his availability for visitation, but his response was illogical. He

stated this was a “criminal case” and, “[Y]ou can remove my name from the

birth certificate because it was a fetal abduction and spousal [sic]. It is a rape

and freaking kidnapping. I don’t need to talk to DHS.” Id. at 14-15. The court

noted that Father’s lack of cooperation with DHS would preclude establishing

a visitation schedule and stated to Father, “[W]hat you have articulated on

the record is very concerning and would give me concern of returning this

child to your custody at this point.” Id. at 16, 17. Father responded that

keeping him away from Child was “treason” and he again requested that he

be removed from the birth certificate, stating, “I don’t want the child.” Id. at

30-31.

At the adjudicatory hearing on September 26, 2022, as noted above,

the court incorporated by reference the testimony from the previous seven

hearings. N.T., 9/26/22, at 42-44, 162-164. Father and Mother were both

present. DHS identified the safety threats in this case as mental health

concerns for Father and Mother, as well as concerns about domestic violence.

Id. at 86. Mother had two active PFA orders against Father in New Jersey,

which Father conceded. Id. at 130-31. Mother testified that she was afraid,

anxious, and in fear of her life because of Father and requested a stay away

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order for Father, which the court granted. Id. at 128-131. Both the DHS

investigator, Racquel Braham, and the CUA worker, Groark, testified that they

had tried to contact Father by phone many times but he was always upset,

hostile, and yelling. Id. at 18-19, 22-23, 23-28, 71-74. Groark opined that

Child would not be safe in Father’s care because of Father’s uncooperativeness

and hostility. Id. at 94-95. She stated that Father’s case objectives were to

obtain mental health treatment, attend parenting classes, maintain

communication with DHS, and visit with Child. Id. at 95-97.

Father testified that he wanted “a hundred percent” custody of Child and

visitation with Child but did not want to go through CUA. Id. at 137. He

claimed that the police were stalking him, he was “trafficked,” his mental

health hospitalizations were involuntary, and his email had been hacked by “a

criminal court, some random person, or another country.” Id. at 139-40, 151.

He said that he did not currently have a permanent residence and had been

living in hotels since October 2021, approximately one year before the

adjudicatory hearing, when he was evicted from his home. Id. at 161, 180-

81. Father stated, “I am facing homelessness and living in a shelter.” Id. at

182.

The court adjudicated Child dependent based upon Father’s and

Mother’s present inability to care for Child due to Father’s mental health issues

and lack of housing and Mother’s mental health issues. Id. at 164-65. The

court found the testimony of both the DHS and CUA caseworkers to be credible

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and that DHS had made reasonable efforts to prevent placement of Child. Id.

at 164, 165, 171. This appeal followed.

Father raises the following issues for our review:

1. Whether the trial court erred as a matter of law or abused its discretion in finding that the Philadelphia Department of Human Services met its burden to prove, by clear and convincing evidence, that [Child] was a dependent child[?]

2. Whether the trial court erred as a matter of law or abused its discretion in finding that the Philadelphia Department of Human Services met its burden to prove that it was clearly necessary to remove [Child] from her parents’ care[?]

3. Whether the trial court erred as a matter of law in making the pre-placement finding required by 23 Pa.C.S.A. § 6351(b)(2) of the Pennsylvania Juvenile Act, by determining that the Philadelphia Department of Human Services made reasonable efforts to prevent or eliminate the need for the removal of [Child] from her parents’ care[?]

4. Whether the trial court erred as a matter of law when it ordered that [Child] remain in the temporary custody of the Philadelphia Department of Human Services in violation of 42 Pa.C.S.A. Section 6335 where [Child] was held in temporary care for longer than ten days and where the requisite findings of Section 6335 were not made[?]

Father’s Br. at 3.

In his first issue, Father argues that the trial court erred by finding that

clear and convincing evidence supported the conclusion that Child lacked

parental care and control. Id. at 15. He asserts that DHS never assessed

Father to determine if he could care for Child, and he was left out of the

process from the beginning of the case. Id. at 17. He points out that the GPS

report did not reference Father, and Father was not invited to the initial safety

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plan meeting or offered a visitation plan. Id. Father also asserts that DHS

never assessed his home. Id. Father concedes that, at various times, he

received mental health treatment but argues that “receiving mental health

treatment is not a bar to caring for one’s child.” Id. at 18.

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”). Thus, a child will only be declared

dependent if the child “is presently without proper parental care and when

such care is not immediately available.” In re A.B., 63 A.3d 345, 349

(Pa.Super. 2013) (citation omitted). “This Court has defined ‘proper parental

care’ as ‘that care which (1) is geared to the particularized needs of the child

and (2) at a minimum, is likely to prevent serious injury to the child.’” Id.

(citation omitted).

The petitioner must demonstrate by clear and convincing evidence that

a child meets the statutory definition of a dependent child. In re G.T., 845

A.2d 870, 872 (Pa.Super. 2004). Clear and convincing evidence is evidence

that is “so clear, direct, weighty, and convincing as to enable the trier of facts

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to come to a clear conviction, without hesitancy, of the truth of the precise

facts in issue.” In re A.B., 63 A.3d at 349 (citation omitted).

The record supports the court’s determination that Father was presently

unable to parent Child due to his mental health issues and lack of housing and

that Child was therefore dependent. See 42 Pa.C.S.A. § 6302; In re A.B., 63

A.3d at 349. Although Father argues that DHS did not assess his home, he

readily admitted at the adjudicatory hearing that he did not have a permanent

residence and was “facing homelessness.” See N.T., 9/26/22, at 161, 182.

Furthermore, Father was hospitalized on multiple occasions for mental health

treatment and was uncooperative and hostile with DHS and CUA. Father also

had a history of domestic violence against Mother, as evidenced by the two

active PFA orders against him in New Jersey. Both Mother and Maternal

Grandmother stated that they were very fearful of Father, and the trial court

issued orders directing Father to stay away from them.

Further, the court was well within its purview when crediting the

testimony of the DHS and CUA caseworkers. The court also witnessed

firsthand Father’s in-court incoherent and angry outbursts. Accordingly, we

discern no abuse of discretion by the trial court in determining that DHS

presented clear and convincing evidence that Child was dependent.

Father’s second issue challenges the trial court’s determination that DHS

met its burden to prove that it was clearly necessary to remove Child from her

parents’ care. Father’s Br. at 18. He argues that the court failed to consider

alternative dispositions other than the removal of Child from her home. Id. at

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19. Father contends that there was no testimony that he was a safety threat

to Child or any “testimony regarding his home.” Id. According to Father, the

“trial court could have ordered a disposition that the Child remain with Father,

under the supervision of the agency.” Id.

After a child has been adjudicated dependent, “a court may not separate

that child from his or her parent unless it finds that the separation is clearly

necessary.” Interest of A.C., 237 A.3d 553, 563 (Pa.Super. 2020) (citation

omitted). “Such necessity is implicated where the welfare of the child demands

that he or she be taken from his or her parents’ custody.” Id. (citation

omitted).

Here, the record demonstrates that Child’s removal from her parents’

custody was clearly necessary. Child was removed from Mother’s care as

Mother conceded that she was not presently able to care for Child. Father’s

argument that Child should have “remain[ed]” with him is misguided since

Child was never in Father’s care. Moreover, contrary to Father’s contention

that there was no testimony regarding his housing, Father himself testified

that he presently had no permanent home. Given the young age of Child, the

trial court had ample evidence to conclude that Child’s removal from her

parents’ care was clearly necessary.

Father next argues that the court erred when it determined that DHS

made reasonable efforts to prevent Child’s removal from her parents’ care.

Father’s Br. at 20. He contends that “the trial court here provided no analysis

of whether DHS made any efforts to prevent the placement of the Child.” Id.

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Father again maintains that DHS did not invite Father to the safety plan

meeting, provide him with a visitation plan, or assess his home. Id. According

to Father, “the fact that [he] was not invited to or involved with the safety

plan [that] was considered to keep the family together, especially after the

GPS report only mentioned issues with Mother, belies the finding that DHS

made reasonable efforts.” Id. at 23.

Prior to entering an order of disposition that removes a dependent child

from his or her home, “the court shall enter a finding concerning 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 [or her] home, or if

preventive services were not offered due to the necessity for an emergency

placement, whether such lack of services was reasonable under the

circumstances[.]” Interest of K.C., 156 A.3d 1179, 1185 (Pa.Super. 2017)

(citation and internal quotation marks omitted).

Here, the record contradicts Father’s assertion that the trial court failed

to address whether DHS made reasonable efforts to prevent Child’s

placement. The court specifically made a finding of reasonable efforts at the

adjudicatory hearing and in the adjudication order. At the hearing, the court

stated, “[The c]ourt is going to find that DHS did make reasonable efforts to

prevent placement. Initially, DHS sought to implement a safety plan in

Maternal Grandmother’s home with Mother and Maternal Grandmother, and

that was not successful.” N.T., 9/26/22, at 171. The order of adjudication

similarly found, “[T]he [c]ourt hereby finds that to allow this child to remain

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in the home would be contrary to the child’s welfare, and that the Philadelphia

Department of Services made Reasonable Efforts to prevent or eliminate the

need for removal of this child from the home.” Order, 9/26/22, at 1-2.

There was sufficient evidence to support the finding that DHS made

reasonable efforts. Father’s argument about the failure to include him in the

preparation of the safety plan is misplaced. At the time of the safety plan

meeting, DHS did not have contact information for Father. As for his

complaints that DHS did not provide him with a visitation plan or assess his

home, the caseworkers testified that they repeatedly attempted to contact

Father, and he was always angry, yelling, and uncooperative. Father’s

argument is without merit.

Lastly, Father contends that the court violated the Juvenile Act when it

ordered that Child remain in the temporary custody of DHS, as Child was held

in temporary care for longer than 10 days. Father’s Br. at 23. Citing Section

6335, Father argues that if a child is placed in protective custody pending a

dependency adjudication, the trial court must schedule the dependency

hearing within 10 days of the filing of the petition. Id. at 24 (citing 42

Pa.C.S.A. § 6335(a)). He contends that Child was taken into temporary care

on June 3, 2022 and was not adjudicated dependent until September 26,

2022, and the court did not make the requisite findings for keeping a child in

temporary care for more than ten days. Id. at 24-25.

Father’s final argument is waived. “To preserve a claim of error for

appellate review, a party must make a specific objection to the alleged error

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before the trial court in a timely fashion and at the appropriate stage of the

proceedings; failure to raise such objection results in waiver of the underlying

issue on appeal.” PCS Chadaga v. Torres, 252 A.3d 1154, 1157 (Pa.Super.

2021).

Here, Father did not raise this claim at any point in the trial court. He

only made one objection to the various requests for continuances in the case

and he did not cite the 10-day requirement under Section 6335(a) as the basis

for his objection. See N.T., 9/14/22, at 11. Accordingly, Father’s claim is

waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived

and cannot be raised for the first time on appeal”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2023

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