The opinion
J-A16002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.M., MOTHER :
:
:
:
: No. 149 EDA 2022
Appeal from the Order Entered December 7, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000072-2021
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 12, 2022
J.M. (“Mother”) appeals from the order adjudicating N.M. (“Child”), born
November 2020, dependent. Mother argues the trial court erred when it found
Child dependent and placed her in kinship care, erred in its evidentiary rulings,
and violated her Due Process rights. We affirm.
The trial court set forth the factual and procedural history, which we
adopt and incorporate herein. Trial Court Opinion, filed Jan. 26, 2022, at 1-10
(“Trial Ct. Op.”). We will provide a summary.
In 2017, prior to Child’s birth, Child’s five older siblings came into DHS’s
care due to concerns regarding domestic violence, substance abuse, mental
health, and housing. Id. at 2. In September 2019, DHS received a GPS report
that Mother tested positive for methadone when she gave birth to another of
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* Retired Senior Judge assigned to the Superior Court.
J-A16002-22
Child’s siblings. Id. Approximately 14 months later, in November 2020, Child
was born. Mother tested negative for substances at the time of Child’s birth,
but DHS received a report that she had tested positive for cocaine, PCP, and
fentanyl during her pregnancy. N.T., 8/17/2021, at 13-14. DHS received a
GPS report in January 2021, that Child had been admitted to St. Christopher’s
Hospital. Id. at 12-13. Child was transferred to CHOP. Mother was escorted
from CHOP after she threatened to remove Child against medical advice. Id.;
N.T., 8/17/2021, at 25. DHS obtained an order for protective custody in
January 2021, and, after a shelter care hearing, the court found Child
medically needed and ordered the temporary commitment to stand. Trial Ct.
Op. at 2-3.
The trial court held a multi-day adjudicatory hearing. At the first day of
the hearing, in June 2021, it heard from the Community Umbrella Agency’s
(“CUA”) case manager/supervisor Joshua Hage. He testified there were
concerns regarding Mother’s drug and alcohol history, mental health, domestic
violence, anger management, and housing. N.T., 6/16/2021, at 83. Although
Mother had drug screens through Gaudenzia, he was unable to confirm
whether they were random. Id. at 85-86. Hage testified Mother’s visits were
moved from supervised at the CUA to supervised at DHS due to Mother’s
erratic behavior and threats she made. Id. at 91-92.
The court resumed the proceedings in August 2021. DHS investigative
worker Erica Payne testified that Mother signed consent forms for Gaudenzia
and Best Behavioral Health but refused to sign releases for her prenatal care.
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N.T., 8/17/2021, at 14-15, 18. She further testified that Mother did not keep
the appointment for a home assessment. Id. at 20-21. Payne had concerns
regarding Mother’s mental health, impulse control, defensiveness, minimal
compliance with the investigation, and drug and alcohol history. Id. at 27-28.
Payne testified that Mother was in treatment and provided screens, but DHS
was unable to determine whether the screens were random. Id. at 28.
Hage resumed his testimony, stating he had concerns regarding
Mother’s mental health because of her failure to consistently attend treatment
at Best Behavioral Health and her mental health diagnoses, including post
traumatic stress disorder, anxiety, depression, and cocaine and opioid
dependency. Id. at 88, 99-100. Hage testified he did not think a mother-baby
program was appropriate due to concerns about Mother’s protective capacity.
Id. at 113-14. Hage further testified that Mother did not have suitable
housing. Id. at 101. She resided with maternal grandmother, who did not
want her home to be considered a reunification resource. Id. Mother’s visits
were supervised at DHS, due to her outbursts and the agency’s concerns for
safety. Id. at 104.
In November 2021, the court held the final day of the adjudicatory
hearing. CUA case manager Ericka Mitchell testified. She had been assigned
the case in September 2021 and had concerns regarding Mother’s mental
health, including her aggressive and erratic behavior. N.T., 11/19/2021, at
18-19. She testified Mother showed aggressive behavior throughout the case,
including threatening a case aide and the foster parents of Child’s sibling. Id.
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at 19, 23. She further testified Mother refused to sign mental health releases.
Id. at 25. She stated Mother obtained random drug screens from Gaudenzia
and the most recent was negative. Id. at 32. Further, Mother completed a
parenting course and Mitchell did not have concerns regarding Mother’s
parenting. Id. at 33-34. Mitchell further testified Mother attended five out of
seven individual therapy sessions since August 2021. Id. at 92. Mother was
approved for housing in Westmoreland County, but the housing was
conditioned on her being reunited with all seven children. Id. at 47-48. That
was no longer viable due to a pending termination petition for two of the
children. Id. at 95-96.
Mother’s OB/GYN, Dr. Michelle Duncan, testified on Mother’s behalf. She
testified that Mother tested negative for controlled substances at Child’s birth
and did not test positive for any substances while the doctor was treating
Mother in 2020. N.T., 8/17/2021, at 62-63, 84. The Director of the Gaudenzia
WINNER program also testified. The WINNER program is a mother-baby
program that had accepted Mother. Id. at 152-69.
Mother testified that she had been clean for two years and that she was
compliant with her mental health treatment, which she found helpful. N.T.,
11/19/2021, at 113, 117-18.
Child’s foster parent testified that she did not think Mother continued to
have substance abuse issues and, although Mother had mental health issues,
she did not believe they would impact her ability to care for Child. Id. at 172-
79.
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The trial court adjudicated Child dependent in December 2021. Mother
filed a timely notice of appeal.
Mother raises the following issues:
1. Was Mother, J.M., denied Due Process, in that the
evidence presented by DHS was largely inadmissible
hearsay?
2. Did DHS fail to prove grounds for dependency by “clear
and convincing” evidence?
3. Did the trial court err in ordering that the child remain in
state custody?
4. Did the court err by denying Due Process of Law to J.M.,
Mother, as guaranteed by the Constitutions of the
Commonwealth of Pennsylvania and of the United States of
America?
Mother’s Br. at 4.
We will address Mother’s first and fourth issues together. In her first
issue, Mother argues that DHS’s evidence was mostly inadmissible hearsay,
which impacted Mother’s ability to cross-examine adverse witnesses. In her
fourth issue, Mother argues she was denied due process because the decision
was based on inadmissible hearsay, and not on competent evidence. She
claims that “[b]y committing errors of law in conducting the proceedings which
led to termination of the parental rights of Mother,” the trial court “necessarily
violated her fundamental rights.” Mother’s Br. at 19.
Mother waived these issues because she did not raise them with
sufficient detail in her statement of errors complained of on appeal pursuant
to Pennsylvania Rules of Appellate Procedure 1925(b). Rule 1925(b) requires
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J-A16002-22
the appellant to “concisely identify” in the statement “each error that the
appellant intends to assert with sufficient detail to identify the issue to be
raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Any issues not included in the
1925(b) statement, or not raised in accordance with the Rule, are waived.
Pa.R.A.P. 1925(b)(4)(vii).
In her 1925(b) statement, Mother raised the following issues:
1. Ruling that [Child] be adjudicated dependent
without holding an adjudicatory hearing.
2. Ruling that [Child] be committed to DHS, without
holding a dispositional hearing.
3. Ruling as stated above, without making findings,
determinations, and orders required by the Juvenile Act
and by court rules, including but not limited to,
Pa.R.J.C.P. 1401.
4. Failing to rule upon [Mother’s] Motion for
Reconsideration, thus forcing [Mother] to choose
between 1) losing her rights to obtain relief, and 2) filing
this Appeal, and divesting the Trial Court of jurisdiction
to take further action.
5. Denying Due Process of Law to [Mother], as
guaranteed by the Constitution of the Commonwealth of
Pennsylvania and of the United States of America.
6. [Mother] reserved the right to expand and to
supplement this Concise Statement, and to raise any
additional issues in her Appellant’s Brief, for the following
reasons:
a. Pursuant to Children’s Fast Track Rules, this
Concise Statement is being filed at the same time
as is the Notice of Appeal and Order for Transcript,
b. Therefore, this Concise Statement must be
prepared and filed without benefit of a copy of the
Transcript.
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Concise Statement of Matters Complained of on Appeal, filed Jan. 5, 2022.
Mother did not seek to amend her 1925(b) statement after receipt of the
transcript.
Here, Mother’s Rule 1925(b) statement did not elaborate on the
substance of her due process claim. As a result, the trial court did know the
nature of the alleged due process violation. See Trial Ct. Op. at 18-19 (noting
Mother’s “broad assertion does not state the basis of the denial of Mother’s
due process rights,” and that it “could not speculate what” was intended, and
noting that Mother was provided an opportunity to participate at each listing
and to present her evidence and testimony). The statement did not apprise
the judge of the issue it should discuss.
Although Mother attempted to “reserve” a right to raise new claims on
appeal because she filed the Rule 1925(b) statement without the benefit of a
transcript, this is not permissible. Nothing in the rule or in caselaw affords an
appellant an absolute right to amend a Rule 1925(b) statement without the
court’s permission. There was thus no right to “reserve.” Counsel could have
sought the trial court’s leave to amend the Rule 1925(b) statement, but did
not. See Pa.R.A.P. 1925(b)(2)(i) (permitting court, on application and for
good cause, to “permit an amended to supplemental Statement to be filed”).
Furthermore, it appears the due process claim is based at least in part on
alleged evidentiary errors. As counsel was present at the hearing and appears
to have based a separate claim on the evidentiary issues, such errors were
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known at the time of the filing of the Rule 1925(b) statement, without aid of
the transcript.
In her second issue, Mother claims DHS did not prove dependency by
clear and convincing evidence. She argues the evidence was mostly
inadmissible hearsay and, even if the hearsay is considered, it did not prove
dependency. The evidence concerned events that occurred two to three years
in the past and the events were not relevant to her current ability. She argues
that an adjudication of dependency must be based on her current conduct and
condition.
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”). “A determination that there is a lack
of proper parental care or control may be based upon evidence of conduct by
the parent . . . that places the health, safety or welfare of the child at risk,”
including evidence of the parent’s “use of alcohol or a controlled substance
that places the health, safety or welfare of the child at risk.” Id. The petitioner
must demonstrate by clear and convincing evidence that a child meets the
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statutory definition of a dependent child. In re G.T., 845 A.2d 870, 782
(Pa.Super. 2004).
The trial court concluded the testimony at the hearing supported the
adjudication, reasoning it had heard testimony that Child’s health and safety
were at risk because of Mother’s present inability to provide adequate care for
Child. It commended Mother for making progress to alleviate the dependency
issues but stated it continued to have concerns with Mother’s ability to provide
adequate care for Child. It noted the unavailability of provably random drug
screens, and issues with Mother’s housing, anger management, and mental
health. See 1925(a) Op. at 15. The court added that Mother’s visits are
supervised with increased security due to Mother’s threatening behavior. After
review of the briefs, trial court record, relevant law, and the well-reasoned
opinion of the Honorable Cateria R. McCabe, we affirm on the basis of the trial
court opinion. 1925(a) Op. at 12-16.
In her third issue, Mother asserts the court erred in ordering that Child
remain in DHS’s custody. She claims the court provided no analysis or mention
as to whether DHS made reasonable efforts, and no evidence of the same.
Where a child is adjudicated dependent, a court “may not separate that
child from his or her parent unless if finds that the separation is clearly
necessary.” In re G.T., 845 A.2d at 873. “Such necessity is implicated where
the welfare of the child demands that he . . . be taken from his parents’
custody.” Id. (quoting In Int. of J.M., 652 A.2d 877, 881 (Pa.Super. 1995)).
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The trial court concluded it heard credible testimony that outstanding
dependency issues existed that would affect Mother’s ability to provide
adequate care for Child. It acknowledged Mother had made progress but found
Mother’s mental health was not stable enough to reunify with Child. It further
pointed out it had heard credible testimony that Mother had threatened to
physically harm the foster parent of Child’s sibling. It noted Mother had not
signed mental health releases until November 2021, so it was unaware if
Mother’s current health treatment provider was addressing all of Mother’s
mental health issues and that the CUA was unable to assess Mother’s housing.
The court concluded reunification would create a health and safety risk for
Child and Child’s best interest would be met in kinship care.
We conclude the trial court did not abuse its discretion. After review of
the briefs, the trial court record, the relevant law, and the trial court opinion,
we affirm on the basis of the trial court opinion. See 1925(a) Op. at 17-18.1
Order affirmed.
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1 Mother argues that the trial court failed to make any findings regarding
reasonable efforts under 42 Pa.C.S.A. § 6351(b)(2). Section 6351(b)(2)
provides that prior to entering an order finding a child dependent the court
shall make findings as to “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.” Here, Child had not remained in the home pending the
disposition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2022
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Circulated 08/04/2022 10:28 AM
IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION - DEPENDENCY BRANCH
IN RE:
r.-
N.M. aminor, D/O/B: 11/12/2020 CP-5l-DP-0000072-2021
51-FN-000600-2016
cA
Superior Court No. 149 EDA 2022
APPEAL OF: J.M., Mother Superior Court No. 150 EDA 2022
OPINION
1. INTRODUCTION
J.M., ("Mother"), appeals from the Order for Adjudication entered by this Court on
December 7, 2021, pertaining to her child N.M.' Testimony for the Adjudicatory Hearing expands
across three (3) hearing dates: June 16, 2021, August 17, 2021, and November 19, 2021, attached
hereto as Court's Exhibit A, B, and C, respectively. Also essential to the trial court's
determinations were DHS Exhibits 1-14 entered during the 6/16/2021, 8/17/2021, and 11/19/2021
hearings, attached hereto as Court's Exhibit D, and Mother's Exhibits 1-19 from the 8/17/2021
and 11/19/2021 hearings, attached hereto as Court's Exhibit E. At the close of the evidentiary
hearings, the trial court left the record open for two weeks to allow Counsel for DHS and Mother's
counsel to submit amended exhibits. On December 7, 2021, once the record was closed, this Court
issued an Order adjudicating N.M. dependent based on Mother's present inability and committed
N.M. to the Philadelphia Department of Human Services ("DHS").
'N.M.'s has six siblings in DHS care whose cases are at the Goal Change/T'PR or Permanency Review stages in the
dependency proceedings. Any further references to N.M.'s siblings are to explain testimonial and evidentiary
information considered by the trial court.
1
II. FACTUAL and PROCEDURAL HISTORY
The relevant facts and procedural history of this case are as follows. DHS first became aware
of this family on July 27, 2017, prior to N.M.'s birth. DHS received aGeneral Protective Services
("GPS report") on July 27, 2017 alleging that Mother and N.M.'s siblings had been attacked by
three woman, one of which was the paramour of N.M.'s siblings' Father, Mr. Bush. The GPS
report was determined to be valid. There were also concerns regarding domestic violence as well
as Mother's substance abuse, mental health, and housing. On October 14, 2017, DHS obtained an
Order for Protective Custody ("OPC") for N.M.'s five siblings and placed them in foster care. On
September 5, 2019, DHS received aGPS report that Mother tested positive for methadone when
she gave birth to N.M.'s sixth sibling. N.M.'s six siblings all remain committed to DHS. On
March 13, 2020, Mother had apsychological evaluation conducted by Ms. Bernadette Hayburn,
in which she was diagnosed with post-traumatic stress disorder (PTSD), generalized anxiety
disorder, and major recurrent sever depressive disorder. ( See DHS-10).
On November 12, 2020, N.M. was born at Temple University Hospital (TUH). N.M. and
Mother tested negative for substances when N.M. was born. However, Mother tested positive for
cocaine, phencyclidine (PCP), and fentanyl during her pregnancy with N.M.
On December 10, 2020, N.M. was transferred to St. Christopher's Hospital for further treatment.
On January 14, 2021, DHS received aGPS report alleging that two-month old N.M. was admitted
to St. Christopher's Hospital. The transfer records indicated that Mother had ahistory of cocaine
use, and that all of N.M.'s siblings were in DHS placement. The report was determined to be valid.
On January 20, 2021, N.M, was discharged from St. Christopher's Hospital and transferred to the
Children's Hospital of Philadelphia (CHOP). The discharge summary indicated that N.M. was
2
born prematurely and had respiratory issues. On January 24, 2021, Mother was escorted from
CHOP by security after she threatened to remove N.M. against medical advice.
On January 25, 2021, DHS obtained an OPC for N.M. At the January 27, 2021 shelter care
hearing, this Court found that N.M. was medically needed. The OPC was lifted and this Court
ordered the temporary commit to DHS to stand. Upon discharge from CHOP on February 3, 2021,
N.M. was placed in amedical foster care home. (N.T. 8/17/2021, p. 30 at 7-15 ( Exhibit B)). On
May 10, 2021, N.M. was placed in akinship home, where she remains. (N.T. 6/1612021, p. 38 at
16-29 (Exhibit A)); (N.T. 8/17/2021, p. 30 at 21-23 ( Exhibit B)).
The Adjudicatory Hearing for N.M. began on June 16, 2021 when N.M.'s case was not yet
bifurcated from her siblings' cases. 2 N.M.'s case was continued due to time constraints, and this
Court incorporated the testimony from that hearing as to Mother into N.M.'s case. (N.T. 6/16/2021,
p. 21 at 6-19 (Exhibit A)). During the hearing, DHS entered DHS Exhibits 1-6: dependency
dockets for N.M.'s six siblings. (N.T. 6/16/2021, p. 67 at 22-25 (Exhibit A)). Community Umbrella
Agency ("CUA") Case Manager/Supervisor, Mr. Joshua Hage, testified that CUA's dependency
concerns were Mother's drug and alcohol history, mental health concerns, domestic violence,
anger management, as well as housing concerns. ( N.T. 6/16/2021, p. 83-87 ( Exhibit A)). Mr. Hage
testified that while Mother took drug screens through her outpatient program at Gaudenzia, he was
unable to confirm whether the screens were random. (N.T. 6/16/2021, p. 85 at 18-25; p. 86 at
1-10 (Exhibit A)). Mr. Hage further testified that Mother's visits were moved from supervised at
CUA to supervised at DHS due to Mother's erratic behaviors and threats being made to other CUA
Case Managers. (N.T. 6/1612021, p. 91 at 19-25; p. 92 at 1-5 ( Exhibit A)).
-' The Adjudicatory Hearing for N.M. was bifurcated from the Goal Change/TPR and Permanency Review Hearings
of her siblings to provide ample time for each contested hearing-
3
On August 17, 2021, the Court began testimony in N.M.'s Adjudicatory Hearing. Counsel for
DHS called their first witness, DIIS Investigative Worker, Ms. Erica Payne. (N.T. 8/17/2021,
p. 12-37 (Exhibit B)). Ms. Payne testified that DHS received aGPS report on January 14, 2021
alleging that Mother had ahistory of substance abuse and that Mother's conduct placed N.M. at
risk. (N.T. 8/17/2021, p. 12 at 17-23 (Exhibit B)). Ms. Payne visited N.M. at St. Christopher's
Hospital where she learned that while Mother and N.M. tested negative at birth, Mother tested
positive for PCP, cocaine, and heroin during prenatal care. (N.T. 8/17/2021, p. 13 at 2-17; p. 14 at
6-9 (Exhibit B)). When Ms. Payne spoke with Mother, Mother informed her that she was in drug
and alcohol treatment at Gaudenzia. (N.T. 8117/2021, p. 14 at 22-23 (Exhibit B)). While Mother
signed consent forms for Gaudenzia and Best Behavioral Health, she refused to sign releases for
her prenatal care at TUH. (N.T. 8/17/2021, p. 14 at 24-25; p. 15 at 1; p. 18 at 3-11. (Exhibit B)).
Ms. Payne testified that when she visited N.M. in the NICU, N.M. was on oxygen and had
respiratory concerns. (N.T. 8/17/2021, p. 16 at 4-8 (Exhibit B)). Mother refused to provide any
information regarding N.M.'s father. (N.T. 8/17/2021, p. 18 at 12-23. (Exhibit B)). Ms. Payne
further testified that she scheduled ahome assessment with Mother. but Mother did not keep the
appointment. Due to Mother's refusal, Ms. Payne was unable to assess Mother's housing situation
(N.T. 8/17/2021, p. 20 at 15-25; p. 21-22; p. 23 at l-9; p. 33 at 1-12 (Exhibit B)).
Ms. Payne testified that DHS received reports that on January 24, 2021, Mother was escorted
from CHOP by police after attempting to remove N.M. against medical advice. (N.T. 8/17/2021,
p. 24 at 13-25; p. 25 at 1-25. (Exhibit B)). Ms. Payne further testified that an OPC was necessary
at this point to ensure N.M.'s safety, wellbeing, and that she received the necessary medical
treatment. (N.T. 8/17/2021, p. 25 at 1-5; p. 26 at 24-25; p. 27 at 1-3. ( Exhibit B)). Ms. Payne
testified that she had concerns regarding Mother's mental health, specifically Mother's poor
4
impulse control, defensiveness, and minimal compliance with the DHS investigation.
(N.T. 8/17/2021, p. 27 at 9-20. (Exhibit B)). Ms. Payne also testified that she had concerns
regarding Mother's drug and alcohol history. Although Mother was engaged in drug and alcohol
treatment at Gaudenzia, and provided screens, she could not confirm whether they were random.
(N.T'. 8/17/2021, p. 28 at 11-24. (Exhibit B)).
This Court then allowed Mother to call her first witness, Dr. Michelle Duncan, out of order.
(N.T. 8/17/2021, p. 46-85 ( Exhibit B)). Mother's Counsel sought have Dr. Duncan qualified as an
expert witness in parents who are drug- addicted giving birth. (N.T. 8/1712021, p. 46 at 23-25 -
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p. 47 at 1-3 (Exhibit B)). Dr. Duncan testified that she is currently employed as an OB/GYN at
TUH. She testified that she has experience with high- risk pregnancies and has worked with many
mothers who had ongoing substance abuse issues during pregnancy. (N.T. 8/17/2021, p. 48-52
(Exhibit B)). On cross-examination, Dr. Duncan testified that she has never published any studies
regarding mothers with drug and alcohol issues giving birth, nor has she ever been qualified as an
expert in acourt of law. (N.T. 8/17/2021, p. 53 at 13-25; p. 54 at 1-4 (Exhibit B)). This Court did
not qualify Dr. Duncan as an expert in parents who are drug-addicted giving birth, but allowed
Dr. Duncan to continue testifying as afact witness. ( N.T. 8/17/2021, p. 61 at 4-9 (Exhibit B)).
Dr. Duncan then testified that Mother tested negative for substances in an October 2020 drug
screen and at N.M's birth. (N.T. 8/17/2021, p. 62 at 25; p. 63 at 1-14; p. 84 at 3-13 (Exhibit B))
(See M-2). Dr. Duncan further testified that Mother did not test positive for any substances
throughout the time she was treating Mother in 2020. (N.T. 8/17/2021, p. 85 at 10-12 (Exhibit B)).
Counsel for DHS called their next witness, CUA Case Manager/Supervisor, Mr. Joshua Hage.
(N.T. 8/17/2021, p. 86-144 (Exhibit B)). Mr. Hage testified that he was previously the assigned
Case Manager on this case from November 2019 to November 2020, and was reassigned this case
5
in May 2021. (N.T. 8/17/2021, p. 87 at 7-11 (Exhibit B)). Mr. Hage stated that he had concerns
regarding Mother's mental health due to her inconsistent treatment at Best Behavioral Health and
concerns that Mother's medication may not be effective. (N.T. 8/17/2021, p. 88 at 7-17
(Exhibit B)). Mr. Hage testified that he obtained Mother's records from Best Behavioral
Healthcare, and that Mother felt she was misdiagnosed with schizoaflective disorder because she
had been "under the influence" at the time of the evaluation. (N.T. 8/
17/2021, p. 93 at 6-25
(Exhibit B)) (See DHS-9). Mr. Hage also testified that Mother underwent a psychological
evaluation on March 13, 2020, in which Mother was diagnosed with opioid dependence, cocaine
use disorder, chronic PTSD, major generalized anxiety disorder, and recurrent and severe major
depressive disorder. (N.T. 8117/2021, p. 99 at 1-25; p. 100 at 1-9 (Exhibit B)) (See DHS-10).
Following the evaluation, it was recommended that Mother receive PTSD treatment with atrauma
specialist, medication to treat her mental health symptoms, and to continue IOP treatment and
random drug screens. (N.T. 811712021, p. 100 at 9-18 (Exhibit B)). Mr. Hage further testified that
he felt amother-baby program was not appropriate due to concerns about Mother's protective
capacity given her inconsistent mental health treatment and Mother having unsupervised contact
with N.M. (N.T. 8/17/2021, p. 113 at 10-21; p. 114 at 8-17; p. 115 at 3-5 (Exhibit B)).
Mr. Hage testified that Mother did not currently have suitable housing for N.M.
(N.T. 8/17/2021, p. 101 at 3-8 (Exhibit B)). At the time, Mother resided with maternal
grandmother. (N.T. 8/1712021, p. 101 at 22-25 ( Exhibit B)). On July 14, 2021, he attempted to
assess Mother's home, but maternal grandmother stated that her home could not be considered a
reunification resource. (N.T. 8/17/2021, p. 101 at 9-21 (Exhibit B)). Additionally, Mr. Hage
testified that his main concerns regarding Mother's drug history were because Mother had been
inconsistent with her sobriety. (N.T. 8/17/2021, p. 104 at 1-5 (Exhibit B)). Mr. Hage also testified
6
that Mother produced negative drug screens from Gaudenzia, but he could not confirm that any of
the screens were random. (N.T. 8/
17/201, p. 103 at 12-21 (Exhibit B)). Regarding visitation,
Mr. Hage testified that Mother's visits with N.M. were moved from supervised at the agency twice
per week to supervised at DHS due to Mother's behavioral outbursts and concerns for the safety
of CUA staff. (N.T. 8/17/2021, p. 14 at 6-18 (Exhibit B)).
Mother then called her next witness, Director of Gaudenzia WINNER program,
Ms. Krystal Marie Caraballo. Counsel for Mother called Ms. Caraballo to testify about the
Gaudenzia WINNER program, a mother-baby program that accepted Mother, which would
address substance abuse and mental health concerns. (N.T. 8/
17/2021, p. 152-169 (Exhibit S)).
On November 19, 2021, the court concluded testimony in N.M.'s Adjudicatory Hearing. After
the last court date, August 17, 2021, Ms. Ericka Mitchell became the CUA Case Manager.
(N.T. 11/19/2021,.p. 17 at 9-13 (Exhibit C)). Ms. Mitchell stated that she was assigned to this case
on September 13, 2021. (N.T. 11/19/2021, p. 18 at 12-19 (Exhibit C)). Ms. Mitchell testified that
her main concern was Mother's mental health, specifically concerns regarding her aggressive and
erratic behaviors. (N.T. 11/19/2021, p. 18 at 25; p. 19 at 1-5 ( Exhibit Q. Ms. Mitchell further
testified that Mother displayed aggressive behaviors throughout the life of the case. This included
threating CUA staff members and foster parents of N.M.'s sibling. (N.T. 11/19/2021, p. 19 at
15-25; p. 20 at 1-2 ( Exhibit C)). Ms. Mitchell testified that there was an incident in April 2021 in
which Mother threatened a case aide who was supervising a visit. (N.T. 11/1912021, p. 20 at
12-25; p. 21 at 1-25; p. 22 at 1-19 (Exhibit C)) (See DHS-12). Ms. Mitchell also testified about a
recent incident on November 17, 2021, where Mother allegedly threatened the resource parent for
N.M.'s sibling and stated that she "would blow the foster parent's head off " (N.T. 11/19/2021,
p. 21 at 20-25; p. 22 at 1-25; p. 24 at 1-3 (Exhibit C)). Ms. Mitchell further testified that she had
7
been unable to obtain Mother's mental health records due to Mother's refusal to sign mental health
releases. (N.T. 11/19/2021, p. 24 at 20-25; p. 25 at 1-25; p. 26 at 1-3 (Exhibit C)).
On cross-examination by the Child Advocate, Ms. Mitchell testified that Mother lived with
maternal grandmother. Ms. Mitchell testified that because she was unable to perform a home
assessment, she was unsure if the home was appropriate for N.M. (N.T. 11/
19/2021, p. 31 at 9-13
(Exhibit Q. Ms. Mitchell stated that she still had concerns liar Mother's mental health and anger
management despite Mother completing an anger management program. (N.T. 11/19/2021, p. 32
at 7-9; p. 33 at 6-19 ( Exhibit Q. Ms. Mitchell testified that Mother obtained random drug screens
through her treatment program at Gaudenzia. Ms. Mitchell testified that Mother's most recent
screen from November 5, 2021 was negative. (N.T. 11/19/2021, p. 32 at 10-24 (Exhibit C)).
Ms. Mitchell also testified that Mother completed aparenting course, and that she did not have
concerns regarding Mother's parenting at this time. (N.T. 11/
19/2021, p. 34 at 9-14 (Exhibit C)).
On cross-examination by Mother's Counsel, Ms. Mitchell testified Mother was approved for
housing in Westmoreland County, but that the home was conditioned on Mother being reunified
with all seven children. (N.T. 11/19/2021, p. 47 at 20-23; p. 21-24 (Exhibit C)). On redirect
examination, Ms. Mitchell testified that the Westmoreland County home was not aviable housing
option anymore given Mother's ongoing Goal Change Termination hearing for N.M.'s two
siblings. (N.T. 11/1912021, p. 95 at 25; p. 96 at 1-24 (Exhibit C)). Additionally, Mother submitted
various certificates of completion including Gaudenzia Outreach, anger management, and
parenting education. (N.T. 11/19/2021, p. 55-58 (Exhibit C)) ( See M-8, M-9, M-10). 3 Mother also
submitted various negative drug screens from 2020 and 2021. While Ms. Mitchell was able to
'All Counsel stipulated as to Mother's completion of parenting education. anger management, and Gaudenzia
Outreach. (N.T. Il/19/2021, p. 60 at 1-8 ( Exhibit C)). Counsel for DHS did not stipulate to any drug screens submitted
by Mother's counsel. ( Id. at 9-14).
8
confirm that Mother's drug screens from Gaudenzia and Quest Diagnostics were random, she
could not confirni whether any other screens submitted by Mother were random. (N.T. 11119/2021,
p. 32 at 17-21; p. 88 at 23-25; p. 89 at I (Exhibit C)). (See M-4, M-11, M-12, M-14).
On redirect examination, Ms. Mitchell testified that Mother's mental health as well as her
aggressive and erratic behaviors may affect her ability to parent N.M. and could jeopardize N.M.'s
safety. (N.T. 11/19/2021. p. 89 at 24-25; p. 90 at 1-3; p. 91 at 1-16; p. 97 at 25; p. 98 at 1-6 (Exhibit
C)). Regarding Mother's mental health treatment at The Wedge Recovery Centers ("The Wedge"),
Ms. Mitchell testified that Mother completed intake on August 19, 2021. She attended five out of
seven individual therapy sessions since the intake. (N.T. 11/19/2021, p. 92 at 3-21 (Exhibit C)).
Following the testimony of Ms. Mitchell, Mother took the witness stand. (N.T. 1111 9/202 1,
p. 108-168 (Exhibit C)). Mother denied using or testing positive for any substances during her
pregnancy with N.M. (N.T. 11/19/2021, p. 110 at 8-10 (Exhibit C)). Mother also testified that she
is not currently using any substances and has been clean for two years. (N.T. 11/19/2021, p. 113
at 2 (Exhibit C)). Mother denied the November 17, 2021 incident, in which she allegedly
threatened N.M.'s sibling's foster parent. (N.T. 11/19/2021, p. 34 at 19-23 (Exhibit C)).
Additionally, Mother testified that she is compliant with her mental health treatment and finds it
helpful. (N.T. 11/19/2021,p. 117 at 20-25; p. 1-3 (Exhibit C)).
Mother's Counsel called her final witness, kinship parent for N.M., Ms. Bridget Powell.
(N.T. 11/19/2021, p. 171-185 ( Exhibit Q. Ms. Powell testified that she is to allow Mother and
N.M. to reside with her on asafety plan. (N.T. 11/1912021, p. 172 at 13-25 (Exhibit C)). She also
testified that she does not have concerns about Mother's substance use, citing that Mother has
made great progress since the time she had been using. (N.T. 11119/2021, p. 173 at 11-24
(Exhibit C)). Ms. Powell also testified that she understands how N.M. came into care, but does not
9
believe Mother had any substance use issues at the time N.M. was placed. (N.T. 11/19/2021,
p. 178 at 20-22; p. 179 at 3-8 (Exhibit C)). Ms. Powell stated that while she acknowledges that
Mother has mental health concerns, she does not feel that Mother's mental health would impact
her ability to care for N.M. (N.T. 11/19/2021, p. 179 at 9-18 (Exhibit Q.
Counsel made arguments on November 19, 2021, and the record was kept open for two weeks
to allow Counsel for DHS and Mother's Counsel to submit amended exhibits.' (N.T. 11/
19/2021,
p. 186 at 6-12 (Exhibit C)). The Court continued the Adjudicatory Hearing until January 13, 2022,
and stated that it would give its ruling at that time. However, because this adjudication had been
deferred for several months and in the interest of judicial economy, this Court ruled earlier. Upon
receiving the amended exhibits. this Court issued an Order adjudicating N.M. dependent based on
present inability and committing the Child to DHS on December 7, 2021. (See Trial Court Order
12/7/21). Mother timely filed this Notice of Appeal and aConcise Statement of Errors Complained
of on Appeal on January 5, 2021. 5
III. STATEMENT OF MATTERS COMPLAINED ON APPEAL
in the Pa. R.A.P. 1925(b) Statement of Matters Complained of on Appeal, the Appellant
identifies the following issue(s):
1. The Trial Court erred in ruling that N.M. be adjudicated dependent without
holding an adjudicatory hearing.
2. The Trial Court erred in ruling that N.M. be committed to DHS, without holding
adispositional hearing.
aThe record was kept open because some exhibits were illegible, pending authentication, or needed to be submitted
in color.
`Regarding N.M.'s adjudication of dependency, Mother's Counsel filed this Notice of Appeal on behalf of her client.
Mother also filed her own Notice of Appeal pro se despite being represented by counsel. Mother's Counsel was
informed that she would be required to withdraw one of the Notices of Appeal. However, when this Court filed its
Opinion, Mother had not yet done so. Mother's filing ofa prose Notice of Appeal while being represented by counsel
was in contravention of the appellate rules. See Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). Therefore, this
Court only addressed the issues raised in the Notice of Appeal filed by Mother's Counsel. This Court respectfully
requests that Mother's pro se appeal be quashed.
10
3. The Trial Court erred in ruling as stated above, without making findings,
determinations, and orders required by the Juvenile Act and by court rules,
including but not limited to, Pa. R.J.C.P. 1401.
4. The Trial Court erred in failing to rule upon Appellant's Motion for
Reconsideration, thus forcing Appellant to choose between 1) losing her rights
to obtain relief, and 2) tiling this Appeal, and divesting the Trial Court of
jurisdiction to take further action.
5. The Trial Court erred in denying Due Process of Law to Appellant J.M.,
Mother, as guaranteed by the Constitutions of the Commonwealth of
Pennsylvania and of the United States of America.
6. Appellant J.M., Mother, reserves the right to expand and to supplement this
Concise Statement, and to raise additional issues in her Appellant's Brief for
the following reasons:
a. Pursuant to Children's Fast Track Rules, this Concise Statement is being
filed at the same time as is the Notice of Appeal and Order for
Transcript.
b. Therefore, this Concise Statement must be prepared and filed without
benefit of acopy of the Transcript.
For the purposes of this opinion, Mother's issues 1through 6will be consolidated to read: Did the
trial court err when it found N.M. dependent based on DHS meeting their burden of proof. Did the
trial court err or abuse its discretion by removing N.M. from Mother's care and placing her in
kinship care? Did the trial court deny Mother of her right to due process of law?
IV. STANDARD OF REVIEW
The proper standard of review when considering atrial court's determination of apetition to
terminate parental rights is abuse of discretion. This standard of review requires an appellate court
to accept the findings of fact and credibility determinations of the trial court if they are supported
by the record. In re R.JT, 608 Pa. 9A.3d 1179, 1190 (2010). "'An abuse of discretion is not merely
an error of judgment; if, in reaching aconclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly unreasonable or the product of'
partiality, prejudice, bias or ill will, discretion has been abused." Bulgarelli v. Bulgarelli. 934 A.2d
107, 111 (Pa. Super. 2007).
11
Our standard of review of dispositional orders in juvenile proceedings is settled. The Juvenile
Act grants broad discretion to juvenile courts in determining appropriate dispositions. In re C.A.U..
89 A.3d 704, 709 (Pa. Super.2014). Indeed, the Superior Court will not disturb the lower court's
disposition absent amanifest abuse of discretion. In the Interest of J.D., 798 A.2d 210, 213 (
Pa.
Super. 2002). Appellate review of aweight of the evidence claim is limited to areview of the
judge's exercise of discretion. See Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997), and
Commonwealth v. Brown, 648 A.2d 1177, 1189-1192 (Pa. 1994).
V. DISCUSSION
A. The Trial Court Properly Adjudicated N.M. Dependent Pursuant to 42 Pa.C.S.A.
0302(1)" and 42 Pa.C.S.A. $6341 (a), (c), and Of of the Juvenile Act.
Mother alleges in her Concise Statement of Matters Complained of on Appeal, that this Court
erred when it found that there was clear and convincing evidence to adjudicate N.M. dependent.
This Court disagrees.
e42 Pa.C.S.A. § 6302- Definitions- The following words and phrases when used in this chapter shall have, unless the
context clearly indicates otherwise, the meanings given to them in this section: "Dependent child." A child who: ( 1)
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 alack 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, includin- evidence of the parent's, guardian's or other custodian's use of alcohol or a
controlled substance that places the health, safety or welfare of the child at risk.
7 42 Pa.C.S.A. § 6341. Adjudication -( a) General rule. -- After hearing the evidence on the petition the court shall
make and file its findings as to whether the child is adependent child. If the petition alleges that the child is delinquent,
within seven days of hearing the evidence on the petition, the court shall make and file its findings whether the acts
ascribed to the child were committed by him. This time limitation may only be extended pursuant to the agreement of
the child and the attorney for the Commonwealth. The court's failure to comply with the time limitations stated in this
section shall not be grounds for discharging the child or dismissing the proceeding. If the court finds that the child is
not adependent child or that the allegations of delinquency have not been established it shall dismiss the petition and
order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
(e) Finding of dependency.--] fthe court finds from clear and convincing evidence that the child is dependent, the
court shall proceed immediately or at apostponed hearing, which shall occur not later than 20 days after adjudication
if the child has been removed from his home, to make aproper disposition of the case.
(d) Evidence on issue of disposition. --( IXi) In disposition hearings under subsections ( b) and (c) all evidence helpful
in determining the questions presented, including oral and written reports, may be received by the court and relied
upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. ( ii)
Subparagraph ( i) includes any screening and assessment examinations ordered by the court to aid in disposition, even
though no statements or admissions made during the course thereof may be admitted into evidence against the child
on the issue of whether the child committed adelinquent act. (2) The parties or their counsel shall be afforded an
opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports.
Sources of information given in confidence need not be disclosed.
12
The burden of proof in adependency proceeding is on the petitioner to demonstrate by clear
and convincing evidence that achild meets the statutory definition of dependency. In re G. T, 845
A.2d 870, 872 (Pa. Super. 2004). Clear and convincing evidence has been defined as testimony by
credible witnesses who clearly relate facts that are so clear, direct, weighty, and convincing as to
enable the trier of fact to come to aclear conviction without hesitance of the truth of precise facts
in issue. In Interest of J.M., 166 A.3d 408, 427 (Pa. Super. 2017) (citing In re Novosielski, 992
A.2d 89, 107 (Pa. 2010)). Under 42 Pa.C.S.A. § 6302(1) adependent child is defined as achild
who:
(1) 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 alack 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 custodian's use of
alcohol or acontrolled substance that places the health, safety or
welfare of the child at risk; 42 Pa.C.S.A. § 6302.
A dependency trial is atwo-part process. The first part requires the trial court to hear evidence
and to detennine, by clear and convincing evidence, that the child is without proper parental care,
control, or subsistence necessary for the child's physical, mental, moral, or emotional health. In re
A.B., 63 A.3d 345, 349 (Pa Super. 2013). If the trial court finds the child dependent, the trial court
may then move to the second part, in which it must make an appropriate disposition based upon
an inquiry into the best interest of the child. In re LC'., 11, 900 A.2d 378, 381 (Pa. Super. 2006).
See In re A. E., 722 A.2d 213, 215 ( Pa. Super. 1998).
Pennsylvania law makes it clear that afinding of dependency can be made based on prognostic
evidence and such evidence is sufficient to meet the strict burden of proof necessary to declare a
child dependent. In re R.W.J., 2003 PA Super 208, 11, 826 A.2d 10, 14 (Pa. Super. Ct. 2003)
(citing In Interest of'Black, 273 Pa. Super. 536, 417 A.2d 1178 ( 1980)). Pennsylvania Superior
13
Court found that when determining whether aparent is providing aminor with proper care and
control, they believe that the caretaker's acts and omissions should weigh equally. In Interest of
.IOV, 686 A.2d 421, 423 ( 1996). The parental duty extends beyond mere restraint from actively
abusing achild; rather, there exists aduty to protect the child from the harm that others may inflict.
Id.
The testimony offered at the Adjudicatory Hearing clearly supports this Court's order. This
Court heard clear and convincing evidence from DHS Investigator, Ms. Erica Payne, and CUA
Case Managers, Mr. Joshua Hage and Ms. Ericka Mitchell, that N.M.'s health and safety were at
risk due to Mother's present inability to provide adequate care for N.M. During the Adjudicatory
IIearing on August 17, 2021, Ms. Payne testified that she had concerns regarding Mother's history
of substance abuse as well as mental health. Ms. Payne testified that while Mother and N.M. tested
negative at birth, Mother tested positive for PCP, cocaine, and fentanyl during her pregnancy with
N.M. Specifically, Ms. Payne testified that she had concerns regarding Mother's poor impulse
control, defensiveness, and minimal compliance with the DHS investigation. Additionally,
Ms. Payne testified that although Mother provided drug screens from her treatment program at
Gaudenzia, neither she could not confirm whether they were random. Ms. Payne stated that
removing the Child from Mother's care was necessary to ensure N.M.'s safety, wellbeing, and that
she received the necessary medical treatment.
Ms. Payne's testimony was corroborated by CUA Case Managers, Mr. Hage and Ms. Mitchell.
On August 17, 2021 ;Mr. Hage testified that he had concerns regarding Mother's mental health,
inconsistency with sobriety, and housing. At the August 17, 2021 hearing, Mr. Hage testified that
Mother did not have appropriate housing. Ms. Mitchell also testified on November 19, 2021, that
she had been unable to assess Mother's home, and could not determine whether Mother had
14
appropriate housing for N.M. Additionally, Mr. Hage had concerns with Mother having
unsupervised contact with N.M. due to Mother's visits with N.M. being supervised at DHS with
increased security because of Mother's outbursts and threats to CUA staff. Ms. Mitchell still had
concerns regarding Mother's aggressive and erratic behaviors on November 19, 2021. Specifically,
Ms. Mitchell testified about an incident occurring on November 17, 2021, in which Mother
allegedly threatened "to blow the head off" the foster parent of N.M.'s sibling. Ms. Mitchell further
testified that she believed Mother's mental health and aggressive behavior could affect her ability
to parent N.M. and could jeopardize N.M.'s safety.
This Court commends Mother for making progress to alleviate the dependency issues which
brought N.M. into care. Ilowever, this Court still has concerns with Mother's ability to provide
adequate care for N.M. The record reflects the following issues that led to an adjudication of
dependency and commitment to DHS. While CUA Case Manager, Ms. Mitchell, confirmed that
Mother's drug screens from Gaudenzia and Quest Diagnostics were random, she could not confirm
whether any other screens submitted by Mother were random. (See M-4, M-11, M-12, M-14).
Additionally, because CUA has been unable to assess Mother's current housing, it is unclear
whether Mother has appropriate housing for N.M. Mother's mental health stability and anger
management remain barriers to reunification at this time. Mother has previously refused to sign
mental health releases, thus this Court is not aware if Mother's current mental health provider, The
Wedge, has a full picture of Mother's mental health history and diagnoses. This Court heard
testimony about Mother's aggressive and erratic behaviors despite completing an anger
management program. There were credible allegations that Mother threatened physical violence
against the foster parent of N.M.'s sibling as recently as November 17, 2021. Additionally,
Mother's visits with N.M. are supervised with increased security due to Mother's threatening
15
behavior. This Court finds that Mother's mental health impacts her ability to provide adequate
parental care to N.M., and could place N.M.'s safety and wellbeing at risk.
It is well-settled that "afinding of dependency can be made on the basis of prognostic evidence
and such evidence is sufficient to meet the strict burden of proof necessary to declare achild
dependent." In re R. W..,I., 826 A.2d 10, 14 (Pa.Super.2003). The facts and circumstances which
led to N.M.'s siblings coming into care, Mother's lack of compliance with her Single Case Plan
(SCP) objectives, as well as her progress towards reunification in those cases is relevant and
admissible for N.M.'s case. Mother currently has six other children in DI IS care. When N.M. came
into care, Mother's compliance with her SCP objectives in those cases was minimal. This Court
was able to consider evidence relating to N.M. as well as N.M.'s siblings in its decision to
adjudicate N.M. dependent.
Mother's Counsel alleges that this Court adjudicated N.M. dependent and committed her to
DHS without holding adjudicatory and dispositional hearings. The record is clear that adjudicatory
hearings for this case occurred on June 16, 2021, August 17, 2021, and November 19, 2021. This
Court heard extensive testimony on those dates. Mother's position that this Court adjudicated N.M.
dependent without holding adjudicatory or dispositional hearings is without merit.
After hearing the evidence presented. this Court found that DHS met its burden by clear and
convincing evidence that N.M. was adependent child pursuant to 42 Pa.C.S.A. § 6302(1) and was
without proper parental care. Such proper parental care was not immediately available due to
Mother's ongoing mental health, anger management, and housing issues. The testimony heard was
clear and convincing that N.M.'s health and safety were at risk, and N.M, was adjudicated
dependent.
16
B. The Trial Court did not Abuse its Discretion in Finding that DHS met its Burden to
Remove N.M. from Mother's Care and Placing Her in Kinship Care.
Mother alleges the Court erred in ordering the continued removal of N.M. from Mother's care
and committing N.M. to DHS. This Court disagrees.
Once achild is adjudicated dependent, the issues of custody and continuation of foster care are
determined by the child's best interests. In re Sweeney, 574 A.2d 690, 691 (Pa. Super. 1990). The
trial court may remove achild from the care of the child's parents only upon showing of clear
necessity. In re E.P., 841 A.2d 128, 132 ( Pa. Super. 2003). Before the trial court can enter any
order of disposition that would remove a dependent child from their home, the court must
determine that prior to placement, reasonable efforts were made to prevent or eliminate the need
for removal of child from the home. 42 Pa.C.S.A § 6351(b)(2). The burden of proof in a
dependency proceeding is on the petitioner. In re C R.S., supra at 842-843.
The purpose of the Juvenile Act is to preserve the unity of the family whenever possible.
42 Pa.C.S.A. § 6301(b)(1). Nonetheless. achild will be adjudicated dependent when the child is
presently without proper parental care and the care is not immediately available. In re R.T., 592
A.2d 55, 57 (Pa. Super. 1991) (citing In Re LaRue, 366 A.2d 1271 (Pa. Super. 1976)). Superior
Court has defined proper parental care as the care which is geared to the particularized needs of
the child and, at aminimum, is likely to prevent serious injury to the child. In re C. R.S., 696 A.2d
840, 843 (Pa. Super. 1997) (citing In Interest ofJustin S , 543 A.2d 1192, 1200 (Pa. Super. 1988)).
The court heard credible testimony from DHS Investigator, Ms. Payne, as well as CUA Case
Managers ;Mr. Hage and Ms. Mitchell, that there are outstanding dependency issues which affect
Mother's ability to provide adequate care for N.M. This Court recognizes that Mother has made
some progress and hopes she continues to make progress towards reunification. However, this
Court is greatly concerned about Mother's mental health, anger management, and ability to safely
17
care for N.M. at this time. This Court does not believe Mother's present mental health is stable
enough for her to reunify with N.M. Additionally, this Court heard credible allegations that on
November 17, 2021. Mother threatened to physically harm the foster parent of N.M.'s sibling.
Because Mother did not sign mental health releases until November 19, 2021, this Court is unaware
if Mother's current mental health treatment at The Wedge is addressing all her mental health issues.
Additionally. because CUA has been unable to assess Mother's current housing ; it is unknown
whether Mother's has appropriate housing for N.M. This Court is also concerned about Mother's
history of substance use given her inconsistency with sobriety, and because Mother tested positive
For substances during her pregnancy with N.M. Therefore, this Court found that Mother lacked the
ability to immediately provide adequate care for N.M. should she be returned to her. This Court
determined that areturn to Mother at this point would create ahealth and safety risk for N.M., and
it would be in the best interests of the Child for her to remain in kinship care.
Based on the credible evidence presented during the Adjudicatory hearings, this Court found
that N.M. should remain placed in kinship care and committed to DHS. This Court found clear and
convincing evidence to support the finding that the reasons and conditions which necessitated the
placement of N.M. had not been alleviated and that it would be contrary to N.M.'s welfare and
best interest to reunify her with Mother at that time.
C. The Trial Court Did Not Violate Mother's Right to Due Process of Law.
Mother alleged in her Concise Statement of Matters Complained of on Appeal that this Court
violated her right to Due Process of Law as guaranteed by the Constitution of the Commonwealth
of Pennsylvania. This Court disagrees.
Due process requires nothing more than adequate notice, an opportunity to be heard, and the
chance to defend oneself in an impartial tribunal having jurisdiction over the matter." In re J.N.F.,
887 A.2d 775, 781 (Pa. Super. 2005). Due process is flexible and calls for such procedural
18
protections as the situation demands. In re Ado 7tion of Dale A., 11, 683 A.2d 297,300 (Pa. Super.
1996) {citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
This broad assertion does not state the basis of the denial of Mother's due process rights, and
this Court cannot speculate what Mother's counsel intended this assertion to mean. Mother was
appointed counsel to represent her at each listing. At each listing, and specifically at the
Adjudicatory Hearings on June 16, 2021, August 17, 2021, and November 19, 2021, Mother had
the opportunity to participate and testify, as well as present evidence and witnesses on her own
behalf. Mother participated at the hearings and testified. Mother's Counsel cross-examined
witnesses and presented evidence. Due process requires notice, an opportunity to be heard, and the
opportunity to defend oneself in an impartial tribunal; Mother's due process rights were not
violated. Mother's assertion that this Court violated her right to Due Process of law is meritless.
19
Nil. CONCLUSION
For these reasons. this Court respectfully requests that the Order dated December 7. 2021.
Adjudicating N.M. Dependent and committing her to DHS. be AFFIRMED.
BY THE COURT:
Date:
Cateria R. McCabe. Judge
20
CERTIFICATE. OF SERVICE
Ihereby certify that atrue and correct copy of the foregoing ORDER has been filed and
served upon the following parties. as set forth below:
PACFILE
Guardian Ad Litem:
Tracey Chambers Coleman, Esquire
6150 N Broad St.. #49105
Philadelphia. Pennsylvania 19141
Counsel for Mother:
Linda G. Walters. Esquire
PO Box 168
Flourtown. PA 190 ' 1
Counsel for Department of Human Services:
Luisa Garcia. Esquire
Law Department. Child Welfare Unit
151 5Arch Street. 16 °iFloor
Philadelphia. PA 19102
74 AZ2
ateria R. McCabe. Judge
21