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[U] In re J.J.

Superior Court of Pennsylvania

July 23, 2013

IN THE INTEREST OF: J.J., a Minor, APPEAL OF: R.J., Natural Father, Appellant IN THE INTEREST OF: J.J., a Minor, APPEAL OF: R.J., Natural Father, Appellant IN THE INTEREST OF: D.J., a Minor, APPEAL OF: R.J., Natural Father, Appellant IN THE INTEREST OF: D.J., a Minor, APPEAL OF: R.J., Natural Father, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on January 15, 2013 in the Court of Common Pleas of Blair County, Domestic Relations Division, No. CP-07-DP-0000059-2012, CP-07-DP-0000058-2012, CP-07-DP-0000057-2012, CP-07-DP-0000056-2012.

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

R.J. ("Father") appeals from the Orders finding that aggravated circumstances existed in regard to Jad. J., one of Father's four dependent children, and establishing the placement goal of adoption for the four dependent children. We affirm.

Father is the natural father of two sons, Da. J. (born March 12, 2004) and Jar. J. (born February 28, 2006) and two daughters, Do. J. (born September 16, 2001) and Jad. J. (born July 14, 2008).

In June 2012, all four of the children were removed from Father's custody. Subsequently, Blair County Children Youth and Families ("CYF") filed Petitions for adjudications of dependency for each of the four children. The family had been involved with CYF at various times since 2005 and CYF and other agencies had provided a number of services to the family. Dependency Petitions, 5/17/12; N.T., 6/8/12, at 3-63. All of the children had behavioral issues, some of which were severe. See N.T., 6/8/12, at 7, 30-36, 43-44, 48-51.

On August 30, 2012, the trial court made an adjudication of dependency for each child. N.T., 8/30/12, at 2. The trial court also suspended contact of each child with both Father and their mother ("Mother") due to an investigation of allegations, made by the children during counseling, of physical and sexual abuse. Id. at 3. The trial court deferred establishing a placement goal until after completion of the investigation. Id.

The result of the investigation was an indicated finding[1] of sexual abuse against Father with regard to Jad. J, and against Fred Banks ("Banks") with regard to Da. J.[2] See Petitioner's Exhibits 2, 3. On October 11, 2012, the Guardian ad Litem ("GAL") for the children filed a Motion for an in camera pre-hearing with the trial judge. The GAL indicated that he was "of the opinion that the emotional pressure placed upon the children in testifying at a Review Hearing could be detrimental to their emotional well-being and could involve non-therapeutic contact of the children with their parents." Motion for In Camera Pre-Hearing, 10/11/12.

On November 9, 2012, CYF filed a Motion for Finding of Aggravated Circumstances as to both Mother[3] and Father, alleging that sexual abuse allegations were indicated for Father against Jad. J., and a male household member against Da. J.[4] The trial court conducted a permanency review hearing on November 29, 2012, at which testimony was admitted concerning whether the children were available to testify in court. The trial court determined that the children were not available to testify pursuant to 42 Pa.C.S.A. § 5986. See N.T., 11/29/12, at 56-58.

A further hearing was held on January 10, 2013, at which various witnesses testified, and the trial court permitted the admission of hearsay statements of the children. On January 15, 2013, the trial court issued Orders regarding all four children, in which the court (1) determined that the indicated finding of sexual abuse against Jad. J. was founded; (2) found aggravated circumstances against Father with regard to Jad. J.; and (3) established a placement goal of adoption for all four children. Orders, 1/15/13. Father filed a timely appeal from the January 15, 2013 Order, and a Concise Statement of matters complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i), (b).

Father raises the following issues on appeal:
1. Whether or not the trial court erred by admitting hearsay statements of the children?
2. Whether or not the trial court applied the correct legal standard?
3. Whether or not the trial court erred in ruling the indicated finding was founded?
4. Whether or not the trial court erred in changing the [placement] goal to adoption?
5. Whether or not the trial court erred in finding aggravated circumstances?

Brief for Appellant at 31.

Father first contends that the trial court erred by allowing hearsay testimony. Father asserts that the evidence against him was primarily produced through testimony given by Millie Baker ("Baker"), the children's counselor, as to statements made by the children. Father alleges that this evidence did not have sufficient indicia of reliability, and the children were not "unavailable" as witnesses as required by the applicable statute, 42 Pa.C.S.A. § 5986(1)(ii). See Brief for Appellant at 35.[5]

Our standard of review of this claim is as follows:
[T]he admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law.

In re B.L.L., 787 A.2d 1007, 1011 (Pa. Super. 2001) (citations omitted).

Section 5986, relating to hearsay statements of child victims and witnesses, provides in pertinent part as follows:

§ 5986. Hearsay

(a) General rule.--A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child's family, if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
  1. the child either:

    (i) testifies at the proceeding; or

    (ii) is found by the court to be unavailable as a witness.

(b) Emotional distress.--In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

42 Pa.C.S.A. § 5986 (emphasis added).

In the present case, the trial court heard testimony from Baker, the children's therapist, as to whether the children were "unavailable, " as provided in section 5986.[6] Baker testified as to her therapy sessions with each of the children. N.T., 11/28/12, at 20-53. In connection with Baker's testimony, the trial court admitted exhibits that contained Baker's summary of the therapy sessions with each child, describing each child's behavior and statements. See N.T., 1/10/13, at 14-15; Ex. A-1 (Do. J.); B-1 (Da. J.), C-1 (Jar. J.), and D-1 (Jad. J.).

Baker testified that, most of the time, she saw the children separately for their therapy sessions. N.T., 11/28/12, at 22. Baker described the methods she used to prompt the children to talk, which did not involve leading questions. Id. at 23-24. Baker stated that she had conducted 16-20 sessions with each child, and that each child's separate testimony essentially corroborated that of the other children. Id. at 34-35. In addition, Baker testified that none of the children's allegations of abuse arose when the foster parents were present. Id. at 45. Baker further stated that she took written notes during the therapy sessions with the children, and that she has received training in how to interview children about allegations of abuse. Id. at 49, 51-52.

Baker testified that the children had begun the healing process after having suffered sexual abuse. N.T., 11/29/12, at 20-40. Baker stated that further questioning of the children about the abuse allegations would be "so damaging, " it would "undo everything" the children had accomplished during their counseling. Id. at 36. In addition, Baker testified that, if the children were forced to testify, they would "shut down, " and would suffer emotional distress to the point that they would not be able to communicate the facts related to the abuse. Id. at 37-40, 52-54.

In finding the testimony containing the children's statements to be admissible, the trial court reasoned as follows:

[T]he [c]ourt is being asked to determine whether [CYF] has been able to establish the criteria required by 42 Pa.C.S.A. section 5986 regarding hearsay …. So, my role here today is to say is there sufficient testimony to convince me that the children … made statements under reliable circumstances that would lead this [c]ourt to believe that it is possible that what they said is true and, second of all, if they were forced to testify, would it be damaging to them? So, my first ruling [is] in regards to the circumstances under which these children gave information …. The testimony I have in that regard is that the statements were made to the counselor [Baker] in a treatment setting where the children built a level of trust and that the information that the children shared individually with her is corroborated by each other and that creates a reliable situation for this Court to accept ….

N.T., 11/29/12, at 56-58. The trial court concluded that the children's statements were made in a reliable setting, and that based on the testimony of record, it would be harmful to the children's well-being to have to testify in court about the alleged abuse. Id. at 58-59. Thus, the trial court concluded that the children were unavailable to testify as provided in section 5986. Id.

After reviewing the record, we conclude that the trial court's findings are supported by the record, and that the trial court did not abuse its discretion in allowing admission of the evidence of the children's out-of-court statements.[7]

Father next contends that the trial court failed to apply the correct legal standard in holding that the indicated finding of sexual abuse by Father was founded. Father asserts that the trial court failed to apply the clear and convincing evidence standard in making this determination.

Pursuant to statute, an indicated report of child abuse must be supported by substantial evidence. 23 Pa.C.S.A. § 6303(a) (definitions). Substantial evidence is defined as "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Id.

However, allegations of aggravated circumstances in relation to a dependent child must be supported by clear and convincing evidence. 42 Pa.C.S.A. 6341(c.1). "Clear and convincing" evidence consists of "testimony that is 'so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).

Since aggravated circumstances have been alleged herein, we conclude that the proper standard of proof is clear and convincing evidence.[8] Applying that standard, Father's contention lacks merit. The record shows that the trial court used the "clear and convincing" standard in reaching its decision that the indicated report was founded. See Order, 1/15/13, at par. 23. In the January 15, 2013 Order, the trial court made the following findings of fact:

[] We can only conclude that the statements of the children and their extensive sexualized behaviors convince this court by clear and convincing evidence as follows:
At indicated incident report # 07-11226 we make a finding of Sexual abuse by [Father] as the perpetrator and [Jad. J.] as the victim[.]
THE COURT FURTHER ORDERS:
3. The court makes findings of aggravated circumstances regarding both [Mother] and [Father] due to their indicated status of sexual abuse of [Jad. J.].
4. The indicated cases of sexual abuse regarding [Father] and [Banks] are made founded….

Id. (emphasis added).

Although the trial court mistakenly stated in its March 19, 2013 Memorandum that it had used the "substantial evidence" standard in making the above determination, the trial court corrected its mistake in its subsequent April 4, 2013 Amended Memorandum. See Memorandum, 3/19/13, at 2; Amended Memorandum, 4/4/13, at 1. The trial court clarified that it made its January 15, 2013 finding of sexual abuse by Father upon Jad. J. based on a standard of clear and convincing evidence. Amended Memorandum, 4/4/13, at 1. Based on the record before us, we conclude that Father is not entitled to relief on this claim.

Father next contends that the evidence before the court did not meet the standard of clear and convincing evidence to support the trial court's finding of sexual abuse by Father upon Jad. J.

Our standard of review of this claim is as follows:
[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re A.B., 63 A.3d at 349.

It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In re W.M., 41 A.3d 618, 622 (Pa. Super. 2012).

The record reveals extensive testimony by Baker, Dobson, and the foster parents describing statements by the children that demonstrated Father's sexual abuse of Jad. J. See N.T., 1/10/13, at 96, 98, 102, 114 (Jad. J. stated to foster mother that Jad. J.'s "birdie" (vagina) has been "hurt a lot"), 117 (when being put to bed, Jad. J. asked her foster mother if she was going to "feel her up"), 125, 130 (after a visit with her parents, Jad. J. told foster mother, "Daddy no do bad things anymore"), 153-57 (Jad. J. told Dobson that Jar. J., Da. J., and Father "licked her birdie, " and Father showed all of them "how to lick birdies"; Father showed Jad. J. how to "suck peenies"; Jad. J. said that Jar. J. and Da. J. have "little peenies" and Father has "a big peenie"; Jad. J. said that Father hurt her and Do. J.'s birdies, and Jar. J., Da. J., and Father would stick their fingers inside of her; Da. J. stated he has seen Father stick his fingers inside of Jad. J.), 159-60 (Jar. J. stated to Dobson that he witnessed Father lick Jad. J.'s birdie), 177, Ex. A-1 (10/3/12), Ex. B-1 (8/23/12), Ex. C-1 (8/23/12, 11/8/12), Ex. D-1 (7/6/12 (Jad. J. held up her three middle fingers to Baker and said that Father, Mother, Jar. J., Da. J. and Do. J. "poked" her); 7/19/12 (Jad. J. stated to Baker that Da. J. and Jar. J. "stuck their peenies" in her mouth and in Do. J.'s and that "Daddy did too"); 7/23/12 (Jad. J. stated to Baker that Father did not come to the visit because he is mad at her for "telling, " and she was so scared, she "peed" in her pants); 7/31/12, 8/22/12, 8/27/12 (Baker indicated that Jad. J. was distracted after visit with Father; Jad. J. said that Father is not going to do "bad stuff" anymore; Jad. J. started to talk about being "in the closet" with Father, but then stopped talking)).

Although Father denied the allegations, the trial court found Father's testimony "incredulous." Order, 1/15/13, par. 23; see also Trial Court Memorandum, 3/19/13, at 3. Further, although the record shows that Father had passed a polygraph test in regard to the allegations of sexual abuse, Melissa Hale ("Hale"), a licensed social worker who prepared a psycho-sexual evaluation of Father, of which the polygraph test was a part, testified that polygraph test results are used only in connection with other testing because the polygraph tests are often inaccurate. N.T., 1/10/13, at 85, 88. Hale also indicated that she had administered the Affinity sexual interest test to Father, which showed that Father had a clinically significant, abnormal interest in males ages 6-13 and in females ages 6-9. Id. at 73-75, 77-78.

Based on the extensive evidence in the record before us, we conclude that clear and convincing evidence supported the trial court's conclusion of sexual abuse of Jad. J. by Father.

Father next contends that the trial court erred in changing the children's placement goal to adoption. Father asserts that the trial court based that decision on its erroneous determination that the indicated report of child sexual abuse was founded. Father argues that the hearsay statements of the children should have been excluded because the children were not "unavailable" as required by section 5986.

Under the Juvenile Act, "[t]he court shall conduct a permanency hearing for the purpose of determining or reviewing the permanency plan of the child, [and] the date by which the goal of permanency for the child might be achieved …." 42 Pa.C.S.A. § 6351(e)(1). "If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts … to preserve and reunify the family shall be made or continue to be made …." Id., § 6351(e)(2).

As we previously stated, the trial court did not change the placement goal to adoption, but established it as such in the first instance. We have previously determined that the trial court did not abuse its discretion in deciding that the indicated report of child abuse was founded, and in allowing admission of the hearsay statements of the children. Further, the record clearly shows that the children, after months of therapy, were beginning to make some progress; that their ability to heal would be a long-term process; that the children's behavior improved after cessation of visits with their parents, and that their counselor supported CYF's request for a goal of adoption and termination of parental visits. N.T., 1/10/13, at 48-58. Thus, we conclude that the trial court did not err in establishing the children's placement goal as adoption.

Next, Father contends that, if this Court reverses the trial court's rulings as to admission of hearsay statements or the determination that the indicated report was founded, this Court should also reverse and vacate the finding of "aggravated circumstances" against Father. As we have not reversed either of these rulings, we need not address this claim further.

Order's affirmed.


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