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[U] In re T.A.

Superior Court of Pennsylvania

February 19, 2014

IN THE INTEREST OF: T.A., A MINOR APPEAL OF: G.A., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Adjudication of Delinquency August 6, 2013 in the Court of Common Pleas of Philadelphia County Family Court at No.: CP-51-DP-0001517-2013

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Mother, G.A., appeals from the order adjudicating her son, T.A. (Child), born on July 17, 1998, dependent and committing him to the custody of his adult brother under the supervision of the City of Philadelphia's Department of Human Services (DHS). We affirm.

This family first came to the attention of DHS on July 13, 2013, by means of a General Protective Services report (GPS). According to that report, Child left home and went to live with relatives after Mother angrily punched him in the arm and slapped his face when he refused her request for money. When a DHS caseworker visited Mother's home on July 13, 2013, to investigate the incident, Mother denied hitting Child and insisted that the argument was about Child doing his chores, not about money.

On July 15, 2013, DHS learned that Child had been staying with his father and his father's paramour, A.D., since leaving Mother's home. A.D. told DHS that Child needed new school uniforms for the upcoming school year, and that Mother refused to provide him with his clothes that were still at Mother's house. A.D. also said that Child's father pays support to Mother for Child, but Mother does not spend the money for Child's benefit. At the same time, Child told DHS that Mother hit him and evicted him from her home, and that this incident was not the first time Mother had demanded money from him, and not the first time that the two of them had fought over money. Child told DHS that he was afraid of Mother and did not want to go back to her home.

DHS also spoke with Mother on July 15, 2013. Mother said that Child had trouble controlling his anger and that the argument was about chores, not money. Mother called the DHS caseworker repeatedly the following day to tell her version of the incident. DHS's investigation revealed that Mother had a history of mental health problems.

DHS obtained an order of protective custody (OPC) on July 17, 2013. The trial court held a shelter care hearing on July 19, 2013, at which time it lifted the OPC and ordered Child temporarily committed to DHS. The trial court also ordered Mother to turn over the remainder of Child's clothes to DHS.

At an August 6, 2013 adjudicatory hearing, the trial court heard testimony from DHS social worker, Carl Tyndle. Mr. Tyndle testified that DHS received a report on July 12, 2013, that "[Child] was involved in a physical altercation with [Mother]." (N.T. Hearing, 8/06/13, at 3-4). He testified that Child told him that he and Mother got into an argument when Mother asked him for money. When he refused, Mother "hit [Child] four or five times and threw him out of the residence." (Id. at 5). Mr. Tyndle also testified that [Child] is "fearful" of Mother and is not comfortable returning to Mother's home. (Id. at 5-6). Mother told Mr. Tyndle that the argument was merely about chores and that Mother "doesn't recall" an argument about money or throwing Child out of the house. (Id. at 6).

According to Mr. Tyndle, Child was living with his adult brother, A.C., (Brother), and Brother was willing to allow him to remain in his home. (Id. at 5, 6). DHS has completed clearances on Brother and his fiancée, and determined that Child will have his own bed and his own space while living with them. (Id. at 8). Mr. Tyndle and the Child Advocate agreed that Child has everything he needs at Brother's house and that Child's placement with Brother best suits Child's current needs. (Id. at 6, 15). Child is excelling in school. (Id. at 11-12).

Mr. Tyndle testified that DHS recommended that the trial court refer Mother to Behavioral Health Services (BHS) because Mother was receiving treatment as of June of 2013, and DHS was not sure that Mother was current with her treatment. (Id. at 7, 9).

The trial court adjudicated Child dependent at the hearing on August 6, 2013, committed him to DHS, and ordered him to reside with Brother. The trial court ordered DHS to refer the case to Family Stabilization Services to ensure that Child keeps his scheduled dentist appointment and to refer Mother to BHS for an evaluation. A Family Service Plan (FSP) meeting was to be held within thirty days, and Mother was to comply with all FSP objectives and recommendations. DHS was to implement family therapy when appropriate. The trial entered its order adjudicating Child dependent and committing him to DHS on August 6, 2013. Mother filed her notice of appeal and statement of errors complained of on appeal on August 27, 2013. See Pa.R.A.P. 1925(a)(2)(i).[1]

Mother presents the following questions for our review:

1. Whether the [e]vidence was sufficient to sustain an [a]djudication of [d]ependency[?]
2. Whether the [e]vidence was sufficient to sustain removal of [Child] from [Mother's] [h]ome[?]
3. Whether the [t]rial [c]ourt erred in admitting into [e]vidence [Child's] "Out of Court Statements"[?]

(Mother's Brief, at 5).

Our Supreme Court set forth our standard of review for dependency cases 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 R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

To adjudicate a child dependent, a trial court must determine that the child:

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 a lack 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.

42 Pa.C.S.A. § 6302.

A dependency hearing is a two-stage process. The first stage requires the trial court to hear evidence on the dependency petition and determine whether the child is dependent pursuant to the standards set forth in section 6302. See 42 Pa.C.S.A. § 6341(a). If it finds "clear and convincing" evidence that the child is dependent, the court may move to the second stage, an adjudicatory hearing where it must make an appropriate disposition based on an inquiry into the best interests of the child. 42 Pa.C.S.A. § 6341(c); In re B.S., 923 A.2d 517, 521 (Pa.Super. 2007). "Clear and convincing" evidence has been defined as 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 C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997) (citation omitted).

In accordance with the overarching purpose of the Juvenile Act "[t]o preserve the unity of the family whenever possible, " 42 Pa.C.S.A. § 6301(b)(1), a child will only be declared dependent when he is presently without proper parental care or control, and when such care and control are not immediately available. See In the Interest of R.T., 592 A.2d 55, 57 (Pa.Super. 1991). This Court has defined "proper parental care" as "that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child." C.R.S., supra at 845 (citation omitted).

In regard to when a child should be removed from parental custody, we have stated:

The law is clear that a child should be removed from her parent's custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child's well-being. In addition, this court had held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.

In Interest of K.B., 419 A.2d 508, 515 (Pa.Super. 1980) (citations omitted). In addition, we have stated, "it is not for this [C]ourt, but for the trial court as fact finder, to determine whether [a child's] removal from her family was clearly necessary." In the Interest of S.S., 651 A.2d 174, 177 (Pa.Super. 1994).

In her first issue, Mother bases her argument that DHS did not present sufficient evidence to find Child dependent on our decision in In re Read, 693 A.2d 607 (Pa.Super. 1997), appeal denied, 723 A.2d 1025 (Pa. 1998), where this Court stated, "[i]n general, a finding of abuse has been held sufficient under most circumstances to support an adjudication of dependency." Id. at 610 (citations omitted); (Mother's Brief, at 8). Mother then proceeds to define child abuse, and concludes that the trial court should not have adjudicated Child dependent because there was no evidence of child abuse presented at the hearing. (See Mother's Brief, at 8-9). Mother misapprehends our law.

As stated above, a trial court will declare a child dependent where it finds, "he is presently without proper parental care and when such care is not immediately available." R.T., supra at 57 (citation omitted). We quote the trial court's analysis of the law applied to the facts of this case, with approval:

The record reveals that Mother repeatedly hit [Child], not once or twice, but four (4) or five (5) times. This use of physical violence was serious enough to make [Child] a 15-year-old 10thgrader-"fearful" of his own Mother. (N.T., 8/6/13, pgs. 5, 6). Despite testimony that Mother's home is "appropriate, neat and orderly, " as well as the fact that [Child's] clothing and belongings were in the home, [Child] still informed [Mr. Tyndle] that he is uncomfortable returning to Mother's home. Id. As a result, rather than ordering regularly scheduled, supervised visits between [Child] and Mother, this [c]ourt ordered visits to be held solely at [Child's] discretion. (N.T., 8/6/13, pg. 17). This evidence was more than sufficient for this [c]ourt to find a lack of "proper parental care" at the time of adjudication.
Assuming that [Child] lacked "proper parental care and control" at the time of the adjudicatory hearing, the second step in the analysis of the adjudication of dependency is whether parental care and control was "immediately available." Following the aforementioned incident between Mother and [Child], [Child] resided with his father and [A.D.] for three (3) days. During that time, Mother did not provide [Child] with his clothing from her home. This [c]ourt had to order Mother to provide clothing to her own son, [Child].
Furthermore, this [c]ourt notes that there is an extremely contentious and explosive relationship between [Child] and Mother. While there was no testimony regarding the history of aggressive episodes between [Child] and Mother, the dependency petition indicates that [Child] informed DHS that this incident was not the first time Mother asked [Child] for money and thereafter became violent when [Child] did not provide Mother with money. Mother also informed DHS that [Child] oftentimes has trouble controlling his anger, corroborating the account provided to DHS by [Child].
Finally, this [c]ourt notes that Mother was receiving mental health treatment prior to [Child's] case becoming known to DHS and this [c]ourt. [Mr. Tyndle] testified that DHS would make a BHS referral for Mother based upon the fact that Mother was receiving mental health treatment as of June 2013; DHS was not sure whether Mother was current with her mental health treatment at the time of the adjudicatory hearing. (N.T., 8/6/13, pgs. 7-9).
Given Mother's refusal to provide [Child] with his clothing and belongings at his father's home, the history of explosive episodes between [Child] and Mother, and Mother's ongoing, albeit incomplete, mental health treatment, this [c]ourt properly found that Mother could not provide the
"immediate" parental care and control required to avoid adjudication of [Child]. Subsequent to Mother's completion of BHS services and participation in visitation and family therapy, Mother may be able to move towards parental care and control. However, adequate parental oversight did not exist at the time of the adjudicatory hearing, and it is clear to this [c]ourt that such care and control would not be "immediately" available to [Child].

(Trial Court Opinion, 9/12/13, at 7-9) (emphasis original; case citation omitted).

Our review of the record reveals that DHS provided sufficient evidence to establish that Child lacked parental care and control and that parental care and control was not immediately available. Mother's first issue does not merit relief.

Mother next questions whether there was sufficient evidence to remove Child from Mother's home. (See Mother's Brief, at 10). This Court has stated: "The law is clear that a child should be removed from [his] parent's custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child's well-being." In Interest of K.B., supra at 515 (citations omitted). In addition, "it is not for this [C]ourt, but for the trial court as factfinder, to determine whether [a child's] removal from her family was clearly necessary." In the Interest of S.S., supra at 177. The trial court found that Mother struck Child repeatedly and that Child feared living with Mother. (See Trial Court Op., at 7). Those facts are a sufficient basis for the trial court to determine that Child's well-being is at risk while he lives with Mother and that his removal from Mother's home is clearly necessary. The trial court did not abuse its discretion when it removed Child from Mother's home. Mother's second issue does not merit relief.

Finally, Mother complains that the trial court erred in admitting Child's out-of-court hearsay statements as part of Mr. Tyndle's testimony. (See Mother's Brief, at 10-11). Specifically, she challenges Mr. Tyndle's testimony that Child reported that he had an argument with Mother regarding money, and that Mother hit him and threw him out of the house. (See id. at 10; see also N.T. Hearing, 8/06/13, at 5). This issue does not merit relief.

Our Rules of Evidence define hearsay as a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Pa.R.E. 801(c).

As a general rule, hearsay is inadmissible, because such evidence lacks guarantees of trustworthiness fundamental to our system of jurisprudence. The rule against admitting hearsay evidence stems from its presumed unreliability, because the declarant cannot be challenged regarding the accuracy of the statement. Notably, it is elemental that, [a]n out of court statement which is not offered for its truth, but to explain the witness' course of conduct is not hearsay.

In re K.A.T., 69 A.3d 691, 702 (Pa.Super. 2013), appeal denied, 81 A.3d 78 (Pa. 2013) (citations and quotations marks omitted).

Here, a review of the record indicates that the testimony at issue was not offered for the truth of the matter asserted, and was instead offered to show "how [Child] became known to DHS." (N.T. Hearing, 8/06/13, at 3). As the trial court explained, "[t]he instant case came before this [c]ourt for an adjudicatory hearing based solely on the fact that DHS learned of the violent incident between [Child] and Mother, and Mother's subsequent removal of [Child] from her home." (Trial Ct. Op., at 10).

We leave the question of whether to admit evidence to the sound discretion of the trial court. See A.J.B. v. M.P.B., 945 A.2d 744, 749 (Pa.Super. 2008). The trial court did not abuse its discretion in admitting Mr. Tyndle's testimony explaining why DHS initially became involved in this case.

In sum, our review of the evidence in this matter reveals that the record supports the trial court's findings, that those findings support the trial court's conclusion that Child is dependent, and that placement of Child with DHS is necessary for Child's well-being and appropriate.

Accordingly, for the reasons stated, we affirm the trial court's order.

Order affirmed.

Judgment Entered.


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