# In the Int. of: N.M., Appeal of: J.M.

> Superior Court of Pennsylvania · August 12, 2022

URL: https://www.frixlaw.com/law-library/cases/7800265

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** August 12, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** McLaughlin, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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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J-A16002-22

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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J-A16002-22

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.

____________________________________________

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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J-A16002-22

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2022

- 11 -
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 -
-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7800265. Public record. Not legal advice.