In the Interest of: R.D., a Minor Appeal of: D.D.

• Court: Superior Court of Pennsylvania
• Decided: May 30, 2017
• Docket: In the Interest of: R.D., a Minor Appeal of: D.D. No. 44 MDA 2017
• Status: Unpublished

Opinion

J-S33002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.D., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: D.D., MOTHER No. 44 MDA 2017

Appeal from the Order Entered November 28, 2016 In the Court of Common Pleas of Lancaster County Juvenile Division at No(s): CP-36-DP-0000280-2016

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 30, 2017

D.D. (Mother) appeals from the order entered on November 28, 2016,

in a dependency proceeding that resulted in the finding that R.D. (Child),

born in December of 2014, is a dependent child and that the permanency

goal is adoption. On that same date, the court entered a separate order in

which it found that aggravated circumstances existed, thus, alleviating the

Lancaster County Children and Youth Social Service Agency (Agency) of the

necessity to make efforts toward unification. After review, we affirm the

order declaring Child dependent.

Mother raises the following issues for our review:

I. Was there sufficient evidence of record to find that “aggravated circumstances[,”] as defined by 42 Pa.C.S. [§] 6302, exist against Mother?

II. If aggravated circumstances do in fact apply, did the court abuse its discretion in setting the Permanency Goal as adoption, when the Agency had no child welfare concerns for the [C]hild, ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S33002-17

and [Child] would have, but for Mother’s incarceration[,] no[t] been found to be dependent?

Mother’s brief at 5.

Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.

§§ 6301-6375. Moreover, we note that :

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determination 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) (quoting In re A.B., 63

A.3d 345, 349 (Pa. Super. 2013)).

Before we are able to address any arguments Mother asserts in her

brief, we are compelled to point out that Mother’s notice of appeal indicates

that she is appealing from an order filed on November 28, 2016, despite the

fact that two orders were entered on the trial court’s docket that day, i.e.,

the dependency order and the order finding aggravated circumstances.

Notably, the notice of appeal does not indicate from which order Mother is

appealing. The order contained in Mother’s brief, situated immediately

following the statement of jurisdiction, is the order relating to the finding of

dependency.1 Thus, Mother’s first issue, which directly addresses the finding

____________________________________________

1 See Pa.R.A.P. 2115 (“Order or Other Determination in Question”) (“The text of the order or other determination from which an appeal has been taken or which is otherwise sought to be reviewed shall be set forth verbatim immediately following the statement of jurisdiction.”).

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of aggravated circumstances, could be considered waived in that we may not

address an issue relating to an order that is not under appeal. See Pennsy

Supply, Inc. v. Mumma, 921 A.2d 1184, 1194 n.13 (Pa. Super. 2007) (“As

a general rule, it is not wise to file a single appeal from multiple orders.”).

However, in K.H. v. J.R., 826 A.2d 863 (Pa. Super. 2003), our Supreme

Court stated:

Where a party specifies a particular part of a judgment or order in their notice of appeal, appellate review may nevertheless be extended to orders not identified in the notice of appeal if the specified and unspecified orders are connected, the intention to appeal the unspecified order is apparent, and the opposing party has not suffered prejudice and has had an opportunity to brief the issues.

Id. at 871. Therefore, pursuant to this statement, it appears that Mother’s

aggravated circumstances argument could be considered even though the

finding of aggravated circumstances was contained in a separate order.

Unfortunately, however, Mother has not preserved her aggravated

circumstances issue because she has failed to include it in her Pa.R.A.P.

1925(b) statement of errors complained of on appeal. See Baysmore v.

Baysmore, 771 A.2d 54, 56-57 (Pa. Super. 2001) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”)). Specifically,

Mother’s 1925(b) statement provides only that “[t]he Juvenile Court abused

its discretion by denying Mother a plan for reunification with her child when,

although subject to aggravated circumstances, there were no issues with her

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care of the child, other than and until her incarceration.” Mother’s 1925(b)

Statement. Accordingly, we must consider her first issue waived.

With regard to Mother’s second issue, we rely on the trial court’s

discussion of the reasons for its determination as to the permanency goal of

adoption for Child. We have reviewed the certified record, the briefs of the

parties, the applicable law, and the opinion authored by the Honorable Leslie

Gorbey of the Court of Common Pleas of Lancaster County, dated January

23, 2017. We conclude that Judge Gorbey’s thorough opinion properly

disposes of the issue raised by Mother. Thus, we adopt Judge Gorbey’s

opinion as our own and affirm the order appealed from on that basis.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/30/2017

-4- Circulated 05/16/2017 01:25 PM

~· i·· 1: IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY; PENNSYLVANIA JUVENILE DIVISION

IN RE: Docket No: CP- 36-DP-0000280-2016 RD., a minor, SUPER. CT. NO: 4~ MM cQOI 1

BY: GORBEY, J.

OPINION SUR APPEAL PROCEDURAL HISTORY

RD. (uR"), now age 2, first came to the attention of Lancaster County Court on ...~, November 7, 2016, when a Petition for Temporary Custody was filed by the Lancaster

.,.; I County Children and Youth Social Service Agency ("Agency"). By Order dated

November 8, 2016, R was placed in the temporary custody of the Agency. R's maternal

· half siblings who resided with D. D. CUMother'') and N. D. ("Father") were transferred to i ••., the custody of their father. A Shelter Care hearing was postponed; and an Order

modifying R's placement, on the Agency's Motion, was entered on November 9, 2016;

t R wasplaced with her paternal uncle AD. ("Uncle") and aunt RD. (uAunt''), where R's

paternal half-brother AS. is also placed. Uncle and Aunt were in the process of being ...

t t approved as kinship resources. A November 14, 2016 Order, after the postponed

Shelter Care hearing, continued this placement in Agency care.

An adjudication/disposition hearing was held on November 28, 2016, with Mother

and Father in attendance. After that hearing, on November 28, 2016, the Court entered

an Order finding R to be a dependent child, and ordered that it was in the best interest r, .....

Qf R to continue her placement with Uncle and Aunt, and a placement plan was f/ ~} l;,. :::::,· ' (,) r r; • approved. The Court also entered an Order finding Aggravated Clrcumstan~s ~ "'le; /·/ ,.: Mother and Father, and directing that no efforts be made towards reunificati_iwi~c....i {;' ..__.... .......'>~ r; . . . . ._; ' r·, Mother or Father. :--~: :':' :·::. .... ··, 1 ..., .:-:,... ',. (:::, <, (, ., On December 27, 2016, Mother filed an appeal to the Pennsylvania Superior

Court from the November 28, 2016 Order; this Opinion is prepared in response. Father

did not appeal the decision. . . ·.. ~ FACTUAL HISTORY

R was born on December 5, 2014, and she lived with Mother and Father, along

with three half-brothers: Mother's sons B. M. (born 5/7/2008) and T. M. (born

10/18/2006) and Father's son AS. (born 11/25/2011). (Agency Ex. 1, N.T. at 6)

This family has extensive history with the Agency. Father's first wife, L. S., has

four children, including Father's son AS. Reports to the Agency. regarding L. S., date

back to 2002. including reports of drug abuse, domestic violence. and child neglect. A

S. was born in 2011 and exhibited symptoms of drug withdrawal; A S. was discharged .

to the care of his maternal grandmother and lived with her until age 3. For a period

after that age, A S. lived alternately with his maternal grandmother and his mother, L.

S., until March of 2016, when L. S" was incarcerated. AS. then moved in wi1h Father

and Mother (Step-Mother of A S.) where he remained until he was placed in the

custody of Agency. (See Petition and Adjudication/Disposition Order, In re A.S., CP-36-

DP-0000254-2016, attached for convenience and thoroughness)

r Mother became a caretaker to her step-son, AS. (N.T. at 18) A May, 2016

report of Mothers abuse of A S. was deemed unfounded because it could not be

substantiated. The report included the following: fingerprint-shaped bruising on A. S. by

Mother. potty-training of A S. by Mother by tying him to the toilet for hours, A. S. being I i washed by Mother with ice water when he soiled himself, and A S. being forced into his

bedroom for 8- to 12- hours per day by Mother. See Petition, In re A. S., C P~36-DP-

't 0000254-2016. In July of 2016, the Agency received more reports of physical abuse of ~ 2 A S., including obviously-inflicted cigarette bums, bruising and abrasions. (Agency Ex.

1, N.T. 4-5, 7) On July 23, 2016, Mother asked Aunt to take custody of AS., and the

extent of A S.'s Injuries, including the cigarette burns, bruises and abrasions, became ·l

apparent. See Adjudication/Disposition Order, In re A.S., CP-36-DP-0000254-2016. A

safety plan was implemented, requiring Father's contact with A S. to be supervised and

providing no contact between Mother and A. S. In re A.S .• CP-36-DP-0000254-2016. In September of 2016, the Agency filed for custody of AS. because the

concerns that prompted the safety plan had not been alleviated. See Petition, In re

A.S., CP-36-DP-0000254-2016. The report alleged that Mother, A S.'s step-mother,

bound his legs with a bedsheet in a game that she called Uthe mermaid game." (N.T. at

5 17-18) The report continued, alleging that Mother fed laxatives with hot sauce to A 1

S. and then denied him water and confined him to the bathroom to sit on the commode 'I for hours. (Id. at 5) A S. had numerous cigarette burns in various stages of healing on

his face, neck, torso, arm, and ankles. (Id. at 5) The report also contained information

about Mother hitting A S. with her hands and with books, and also of verbal abuse. (Id.

at 5-6) On October 31, 2016, the Court found A S. to be dependent, with Aggravated

Circumstances found as to Father and Mother, and finding them perpetrators of the

abuse of A. S. (Agency Ex. 1, N.T. at 7, 10) The Court credited the expert testimony of

' I l }: Cathy J. Hoshauer, M.D.; Dr Hoshauer's testimony included information that Mother

was providing daily care for A. S. and her other children as a stay-at-home mother.

re A.S., CP-36~DP-0000254~2016. Neither Mother nor Father attended that October In

31, 2016 Dependency/Disposition regarding A S., but they did attend the Shelter Care

hearing on September 26, 2016. A S. continued in placement with Uncle and Aunt at

that time. (N.T. at 15, 16)

3 .. This history prompted the police to execute the November 7, 2016 search ,·. warrant to search at the home shared by this family and arrest Mother and Father.

(Agency Ex. 1, N.T. at 7) Father was charged with criminal conspiracy, aggravated

assault and endangering the welfare of children. (Agency Ex. 1, N.T. at 8) Mother was

charged with five counts of aggravated assault, and individual counts of false

imprisonment, unlawful restraint, endangering the welfare of children, terroristic threats,

recklessly endangering another person, and harassment. (Agency Ex. 1, N.T. at 8)

These charges relate to the injuries sustained by A S. as a result of Mother's actions \ and Father's failure to act. (N.T. at 8) Mother and Father were incarcerated as a result

of the charges and unable to care for R. (Id. at 7, 8) As a condition of bail release, . ·. Mother and Father were not to have contact with any of the four children. (Id. at 9) ... · ... -.

t The Pennsylvania State Police took emergency custody of R, while T. M. and B.

M. were transferred to the care of their biological father, J. M. (Id. at 7, 8) R Joined A

S. in kinship care with Uncle and Aunt (Id. at 4, 9, 13, 18). The Agency filed the instant

Petition for Custody regarding R as a result of the abuse of A S., as well as Mother and

Father's incarceration and resulting inability to care for R. (Id. at 8-9, 17) The Agency's ,·

Petition includes a Motion for Finding of Aggravated Circumstances. (Id. at 10, 11)

The Agency's Permanency Plan did not include goals of reunification of either parent • I

with R. (Id. at 11)

ISSUE

1 .. Whether the Court erred in finding aggravating circumstances precluding

Mother from reunification with her own child where the Mother was a caregiver and

step-mother to another child (her own child's half-sibling), and where the Mother has

I been found to be a perpetrator of physical abuse of that step-child? 4 i ANALYSIS

On appeal, Mother suggests that because she is not the biological parent of A.

S. within the meaning of section 6302, her founded abuse of A. S. should not preclude

her from reunification with R, her biological child. .. The Juvenile Act provides that, "[i]f the county agency or the child's attorney •

alleges the existence of aggravated circumstances and the court determines that the

child has been adjudicated dependent, the court shall then determine if aggravated

circumstances exist" from clear and convincing evidence. 42 Pa.C.S. §6531(e)(2).

Aggravated circumstances are present where [t]he child is in the custody of a county 0

agency and ... (2) [t]he child or another child of the parent has been the victim of

physical abuse resulting in serious bodily injury. sexual violence or aggravated physical

neglect by the parent." 42 Pa.C.S. §6302.

In the matter at hand, Agency alleged the existence of aggravated circumstances

as to Mother and Father, in the dependency petition requesting that R be found to be a

dependent child. R's half-brother, A. S. has been the victim of extensive physical

abuse by Mother, (step-mother to A. S.), and Father, and this abuse resulted in serious

bodily injury and/or aggravated physical neglect. Mother and Father have been

criminally charged as a result of their treatment of A. S., and are incarcerated pending

trial.'

The Superior Court has held that, ufor purposes of defining 'parent' in the context

of 'aggravated circumstances/ the doctrine of in loco parenfis is appropriately applied."

In re C.B., 861 A.2d 287, 297 (2004), appeal denied 582 Pa. 692 (2005). '•The status of

1 See Common Pleas Dockets numbered 36-CR-6231-2016 and 36-CR-6230-2016, respectively at Unified Judicial System of Pennsylvania.

' j 5 ., in loco parentis embodies two ideas; first, the assumption of a parental status, and,

second, the discharge of parental duties. The rights and liabilities arising out of an in

loco parentis relationship are, as the words imply, exactly the same as between parent

and child." Id. at 296. This doctrine focuses on families "where the child has

established strong psychological bonds with a person who, although not a biological

parent, has lived with the child and provided care) nurture, and affection, assuming in

the child's eye a stature like that of a parent. Another important aspect of this doctrine

is 'whether the third party lived with the child and the natural parent in a family setting,

irrespective of its traditional or nontraditional composition, and developed a relationship

with the child as a result of the participation and acquiescence of the natural parent."

Id. at 296, citations omitted.

Here, Mother assumed parental status and discharged parental duties. Mother

stayed at home with the children and provided regular, daily care and nurturing for both

AS. and R because they were not school-aged while Father worked. This testimony is

uncontroverted. Mother was providing regular care such that the events like the

'mermaid game,' the laxatives-and-hot-sauce feedings, and the tying-onto-the-

commode happened. It was Mother who contacted Aunt in July of 2016, asking Aunt to

i take over the care of AS. Mother lived with A S. and Father in a family setting, with A.

S.'s half-sister Rand A S.'s two step-brothers, with participation of Father. Mother was

clearly acting in loco parentis as to A. S., and the Court properly considered her a

parent for the purposes of the "aggravated circumstances" determination. Accordingly,

because R is in the custody of the Agency and because A. S., step-child of Mother, has

been the victim of serious physical abuse resulting in serious bodily injury, the existence

of 'aggravated circumstances' as to Mother in the case at bar is not in doubt.

6 11 lf the court finds from clear and convincing evidence that aggravated

circumstances exist, the court shall determine whether or not reasonable efforts to

prevent or eliminate the need for removing the child from the child's parent, guardian or

custodian or to preserve and reunify the family shall be made or continue to be made

and schedule a hearing" unless there has been an "(A) an adjudication of dependency

at which the court determined that aggravated circumstances exist and that reasonable .. efforts to prevent or eliminate the need to remove the child from the child's parent,

guardian or custodian or to preserve and reunify the family need not be made or

continue to be made." 42 Pa.C.S. §6351 (e)(2) and (3)(ii)(A).

There Is no legal mandate under the Juvenile Act that, once aggravated

circumstances are found to exist, that the placement plan must provide for the child's

return home; this provision gives courts a choice in deciding whether or not to provide

or to continue efforts to return the children home. "Prior to entering any order of

disposition under subsection (a) that would remove a 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 ... (5) if the child has a sibling who is subject to removal from his home,

I whether reasonable efforts were made prior to the placement of the child to place the

siblings together or whether such joint placement is contrary to the safety or well-being

of the child or sibling." 42 Pa.C.S. §6351 (b)(1) and (5).2

If ' z.The court shall not enter findings under paragraph (2), (3) or (4) if the court previously determined that aggravated circumstances exist and no new or additional reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family are required." 42 Pa.C.S. §6351(b).

7 I Here, the Court found clear and convincing evidence that allowing R to remain at

home with her parents would be contrary to her welfare, safety and health, because her

parents were incarcerated and also because they were founded perpetrators of

sustained child abuse over a period of time as to A. S.1 R's half-brother. That Mother

was not found to have abused or neglected R does not excuse her mistreatment of her

step-child. A. S. It is in the best interests of Rand A. S., as half-siblings, to be placed

together in a stable and safe kinship home.

CONCLUSION

For the reasons set out above, the Court affirms its decision that R. D. is a

dependent child, and that the evidence appropriately indicates that it was in her best

interest to remove her from Mother's home because of aggravated circumstances found

at to Mother's because of serious physical abuse of R.'s half-brother.

BY THE COURT:

DATED:d~z'3. 7-0'7 LESLIE GORBEY, JUDGE

Attest:

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