J-S46001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : : APPEAL OF: A.M., MOTHER : No. 3904 EDA 2017
Appeal from the Order Entered November 13, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002845-2015
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 30, 2018
A.M. (“Mother”) appeals from the order denying her motion for
reunification with her daughter S.M. We affirm.
S.M., who was born in 2007, lived with Mother until 2015, when the
Philadelphia Department of Human Services (“DHS”) received a report that a
sex offender was living in Mother’s home and filed a dependency petition. At
the subsequent hearing, DHS presented evidence that S.M.’s live-in stepfather
(“Stepfather”) had been convicted of possession and dissemination of child
pornography. The evidence further showed that Mother was aware of the
conviction, yet nonetheless allowed Stepfather to have unsupervised contact
with S.M. because Mother trusted him. Juvenile Court Opinion, 1/10/18, at 2.
As a result of the juvenile court’s concern about the nature of Stepfather’s
offense, the risk Stepfather posed to S.M., and Mother’s resistance to
complying with DHS’s safety plan, S.M. was adjudicated dependent and placed J-S46001-18
with her paternal grandparents, with Mother having supervised visitation.
S.M.’s permanency goal was “return to parent or guardian.” See, e.g.,
Permanency Review Order, 6/29/16, at 1.
S.M. was not properly cared for by paternal grandparents, and her
mental health needs1 overwhelmed a foster parent, resulting in subsequent
placement with her maternal grandmother. Meanwhile, Mother progressed to
unsupervised visits, with measures taken to ensure that Stepfather did not
have unsupervised contact with S.M., as a stay-away order prohibiting
Stepfather from having contact with S.M. had been entered in 2016. Id. at
5-6. While her visits with Mother went well, S.M. exhibited behavioral
problems at school despite receiving in-school services for emotional and
therapeutic support. Id.
At permanency review hearings, Mother maintained her position that
Stepfather was a father-figure to S.M., that S.M. had bonded with him, and
that S.M. desired to return to Mother’s home. Id. at 5. However, the juvenile
court maintained the stay-away order and refused to return S.M. to Mother.
Indeed, concluding that Mother’s home remained unsafe for S.M., the juvenile
court declined reunification and placed her with her biological father (“Father”)
in October 2017.
____________________________________________
1 S.M. was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, bi-polar disorder, and post-traumatic stress disorder, and took several medications including Adderall. Juvenile Court Opinion, 1/10/18, at 3-5.
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Mother sought reconsideration of the court’s denial of her request for
reunification, and a hearing was held on November 13, 2017. At that
proceeding, DHS and S.M.’s child advocate acknowledged that S.M. was
thriving in Father’s care. Id. at 6. S.M. testified in camera that she enjoyed
visiting Mother, but was happy residing with Father and wanted to continue to
live with him. Id. Concluding that “the dependency issues still existed in
Mother’s home” and that S.M.’s needs and welfare were best served by
remaining in Father’s home, the juvenile court denied Mother’s motion. The
court further “refused to allow Mother to have overnight visits with [S.M.] due
to its concern that Stepfather might have unsupervised contact with [her],
despite the existence of the stay-away order.” Id. at 7.
Mother filed a timely notice of appeal and statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The juvenile
court authored its opinion, and the matter is ripe for our review. Mother
presents this Court with the following questions.2
1. Did the [juvenile] court err and/or abuse its discretion by denying Mother and Child their U.S. and Pennsylvania constitutional and statutory rights in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied ___U.S. ___, 138 S. Ct. 925 (Jan. 21, 2018)? ____________________________________________
2 Mother raises additional complaints in the body of her brief, such as the juvenile court’s suggestion that Stepfather take a polygraph test to demonstrate his purported lack of arousal by children, and the use of a dependency proceeding to transfer custody to a child’s non-custodial parent. Mother’s brief at 22. These issues are not properly before us, as they were neither raised in Mother’s Rule 1925(a)(2)(i) statement nor included as questions presented in her appellate brief.
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2. Did the [juvenile] court err and/or abuse its discretion by denying Mother’s Motion for Reunification in light of the holding in Commonwealth v. Muniz, supra, which holding removed the purported legal basis for the adjudication of dependency pursuant to the Pennsylvania Juvenile Act, 42 Pa.C.S. [§] 6301 et seq., and the Pennsylvania Child Protection Services Act, 23 Pa.C.S. § 6301 et seq.?
Mother’s brief at 4.
We begin with our standard of review. “In dependency matters, we
review the trial court’s order pursuant to an abuse of discretion standard of
review.” In Interest of H.K., 172 A.3d 71, 74 (Pa.Super. 2017). “As such,
we must accept the court’s findings of fact and credibility determinations if
they are supported by the record, but we need not accept the court’s
inferences or conclusions of law.” Id.
Mother’s arguments are based upon our Supreme Court’s decision in
Muniz. In that case, the Court held that the requirements set forth by our
legislature in the Sex Offender Registration and Notification Act (“SORNA”)
were punitive, and thus could not be applied retroactively given the
Pennsylvania constitution’s prohibition against ex post facto laws. It is
Mother’s contention that the effect of Muniz “is to nullify the purported basis
for S.M.’s adjudication of dependency, and no other dependency issues exist.”
Mother’s brief at 21. We disagree.
The dependency petition that commenced this case alleged, inter alia,
that Mother has a history of drug use, was taking double her prescribed dosage
of oxycodone, and was not always able to meet S.M.’s dietary and hygiene
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needs; and that Stepfather was arrested in 2001 and charged with twenty
counts of possession of child pornography and six counts of dissemination of
photographs or films of children in sex acts, pled guilty to some of the charges,
and was ordered to serve jail time and register under Megan’s Law.
Dependency Petition, 10/29/15, at ¶¶ a, o. The juvenile court expressed
concern about Mother’s substance abuse and Mother’s ability to provide
parental care given her insistence that S.M. be allowed to have unsupervised
contact with a person convicted of child pornography offenses. N.T.
Adjudication, 1/11/16, at 60-61. The record reflects that S.M. was
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J-S46001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : : APPEAL OF: A.M., MOTHER : No. 3904 EDA 2017
Appeal from the Order Entered November 13, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0002845-2015
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 30, 2018
A.M. (“Mother”) appeals from the order denying her motion for
reunification with her daughter S.M. We affirm.
S.M., who was born in 2007, lived with Mother until 2015, when the
Philadelphia Department of Human Services (“DHS”) received a report that a
sex offender was living in Mother’s home and filed a dependency petition. At
the subsequent hearing, DHS presented evidence that S.M.’s live-in stepfather
(“Stepfather”) had been convicted of possession and dissemination of child
pornography. The evidence further showed that Mother was aware of the
conviction, yet nonetheless allowed Stepfather to have unsupervised contact
with S.M. because Mother trusted him. Juvenile Court Opinion, 1/10/18, at 2.
As a result of the juvenile court’s concern about the nature of Stepfather’s
offense, the risk Stepfather posed to S.M., and Mother’s resistance to
complying with DHS’s safety plan, S.M. was adjudicated dependent and placed J-S46001-18
with her paternal grandparents, with Mother having supervised visitation.
S.M.’s permanency goal was “return to parent or guardian.” See, e.g.,
Permanency Review Order, 6/29/16, at 1.
S.M. was not properly cared for by paternal grandparents, and her
mental health needs1 overwhelmed a foster parent, resulting in subsequent
placement with her maternal grandmother. Meanwhile, Mother progressed to
unsupervised visits, with measures taken to ensure that Stepfather did not
have unsupervised contact with S.M., as a stay-away order prohibiting
Stepfather from having contact with S.M. had been entered in 2016. Id. at
5-6. While her visits with Mother went well, S.M. exhibited behavioral
problems at school despite receiving in-school services for emotional and
therapeutic support. Id.
At permanency review hearings, Mother maintained her position that
Stepfather was a father-figure to S.M., that S.M. had bonded with him, and
that S.M. desired to return to Mother’s home. Id. at 5. However, the juvenile
court maintained the stay-away order and refused to return S.M. to Mother.
Indeed, concluding that Mother’s home remained unsafe for S.M., the juvenile
court declined reunification and placed her with her biological father (“Father”)
in October 2017.
____________________________________________
1 S.M. was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, bi-polar disorder, and post-traumatic stress disorder, and took several medications including Adderall. Juvenile Court Opinion, 1/10/18, at 3-5.
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Mother sought reconsideration of the court’s denial of her request for
reunification, and a hearing was held on November 13, 2017. At that
proceeding, DHS and S.M.’s child advocate acknowledged that S.M. was
thriving in Father’s care. Id. at 6. S.M. testified in camera that she enjoyed
visiting Mother, but was happy residing with Father and wanted to continue to
live with him. Id. Concluding that “the dependency issues still existed in
Mother’s home” and that S.M.’s needs and welfare were best served by
remaining in Father’s home, the juvenile court denied Mother’s motion. The
court further “refused to allow Mother to have overnight visits with [S.M.] due
to its concern that Stepfather might have unsupervised contact with [her],
despite the existence of the stay-away order.” Id. at 7.
Mother filed a timely notice of appeal and statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The juvenile
court authored its opinion, and the matter is ripe for our review. Mother
presents this Court with the following questions.2
1. Did the [juvenile] court err and/or abuse its discretion by denying Mother and Child their U.S. and Pennsylvania constitutional and statutory rights in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied ___U.S. ___, 138 S. Ct. 925 (Jan. 21, 2018)? ____________________________________________
2 Mother raises additional complaints in the body of her brief, such as the juvenile court’s suggestion that Stepfather take a polygraph test to demonstrate his purported lack of arousal by children, and the use of a dependency proceeding to transfer custody to a child’s non-custodial parent. Mother’s brief at 22. These issues are not properly before us, as they were neither raised in Mother’s Rule 1925(a)(2)(i) statement nor included as questions presented in her appellate brief.
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2. Did the [juvenile] court err and/or abuse its discretion by denying Mother’s Motion for Reunification in light of the holding in Commonwealth v. Muniz, supra, which holding removed the purported legal basis for the adjudication of dependency pursuant to the Pennsylvania Juvenile Act, 42 Pa.C.S. [§] 6301 et seq., and the Pennsylvania Child Protection Services Act, 23 Pa.C.S. § 6301 et seq.?
Mother’s brief at 4.
We begin with our standard of review. “In dependency matters, we
review the trial court’s order pursuant to an abuse of discretion standard of
review.” In Interest of H.K., 172 A.3d 71, 74 (Pa.Super. 2017). “As such,
we must accept the court’s findings of fact and credibility determinations if
they are supported by the record, but we need not accept the court’s
inferences or conclusions of law.” Id.
Mother’s arguments are based upon our Supreme Court’s decision in
Muniz. In that case, the Court held that the requirements set forth by our
legislature in the Sex Offender Registration and Notification Act (“SORNA”)
were punitive, and thus could not be applied retroactively given the
Pennsylvania constitution’s prohibition against ex post facto laws. It is
Mother’s contention that the effect of Muniz “is to nullify the purported basis
for S.M.’s adjudication of dependency, and no other dependency issues exist.”
Mother’s brief at 21. We disagree.
The dependency petition that commenced this case alleged, inter alia,
that Mother has a history of drug use, was taking double her prescribed dosage
of oxycodone, and was not always able to meet S.M.’s dietary and hygiene
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needs; and that Stepfather was arrested in 2001 and charged with twenty
counts of possession of child pornography and six counts of dissemination of
photographs or films of children in sex acts, pled guilty to some of the charges,
and was ordered to serve jail time and register under Megan’s Law.
Dependency Petition, 10/29/15, at ¶¶ a, o. The juvenile court expressed
concern about Mother’s substance abuse and Mother’s ability to provide
parental care given her insistence that S.M. be allowed to have unsupervised
contact with a person convicted of child pornography offenses. N.T.
Adjudication, 1/11/16, at 60-61. The record reflects that S.M. was
adjudicated dependent based upon the following finding: “The child is without
the proper care or control, subsistence, education as required by law, or other
care or control necessary for [her] physical, mental, or emotional health, or
morals.” Order of Adjudication, 1/11/16, at 1.
Contrary to Mother’s contention, S.M. was not adjudicated dependent
simply because Stepfather was required to register under SORNA at the time,
nor based upon any finding of abuse under the Child Protective Services Law.
23 Pa.C.S. § 6303 (including within the definition of child abuse leaving a child
unsupervised with someone known to be required to register as a Tier II or
Tier III sexual offender under SORNA). Therefore, Mother’s contention that
Muniz’s invalidation of Stepfather’s SORNA responsibilities destroyed the
entire foundation of the dependency action, or negated the dependency
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court’s jurisdiction, or somehow violated Mother’s fundamental parental
rights, is simply not grounded in fact.
The remaining issue is whether the juvenile court abused its discretion
in denying Mother’s motion for reunification.3 Mother argues that “the juvenile
court found that even though there were no dependency issues in [Mother’s]
home[,] reunification would not be allowed, thus refusing to fully reinstate
Mother’s fundamental right to the care, custody[,] and control of S.M. without
any evidence of past harm or future threat.” Mother’s brief at 23.
Again, Mother’s position is detached from reality. Whether or not
Stepfather has to register as a sex offender, he has an admitted history of
child sexual abuse. See 18 Pa.C.S. § 6312 (identifying crimes of possession
and dissemination of child pornography as constituting sexual abuse of
3 Mother includes in this argument a contention that S.M.’s due process rights were violated because the court did not appoint an attorney separate from her guardian ad litem to represent her wishes. Mother’s brief at 25 (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)). The issue decided in L.B.M. was “whether 23 Pa.C.S. § 2313(a), which mandates the appointment of counsel for children involved in contested involuntary termination of parental rights (‘TPR’) proceedings, is satisfied by the appointment of a guardian ad litem (‘GAL’) provided that the GAL is an attorney.” L.B.M., supra at 174. At the time of the proceedings at issue in the instant appeal, L.B.M.’s holding had not been extended beyond TPR proceedings. However, while this appeal was pending, this Court extended the requirements of L.B.M. and its progeny to dependency actions generally. See In re J'K.M., ___ A.3d ___, 2018 WL 3121360 (Pa.Super. June 26, 2018) (reversing order denying appointment of a separate counsel for dependency proceedings where there was a conflict between the child’s best interests and legal interests). Accordingly, if the juvenile court determines there is a conflict between S.M.’s wishes and her best interests, S.M. must have separate legal counsel to advocate for those disparate interests in future proceedings.
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children). Her stubborn insistence that “there is no legal or factual basis
anymore” for S.M. not to be left alone with Stepfather itself validates the
juvenile court’s decision that the circumstances that led to the initial
adjudication of dependency still exist in Mother’s home. See N.T.
Reconsideration, 11/13/17, at 15; Juvenile Court Opinion, 1/10/18, at 9
(indicating that Mother’s home remains unsafe because a sex offender is still
residing there).
Given that the child advocate and DHS have continuing concerns that
Mother will allow Stepfather to have unsupervised contact with S.M., see N.T.
Reconsideration, 11/13/17, at 14-15, and that S.M. is happy and thriving in
her current placement with Father, id. at 6, the juvenile court’s findings are
supported by the record. Further, Mother has not demonstrated that the
decision “was manifestly unreasonable, that the court disregarded the law, or
that its action was a result of partiality, prejudice, bias or ill will.” In Interest
of L.T., 158 A.3d 1266, 1276 (Pa.Super. 2017) (internal quotation marks
omitted). Accordingly, we hold that the juvenile court did not abuse its
discretion in denying Mother’s motion for reunification.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/30/18
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