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In re N.M.

Superior Court of Pennsylvania

May 4, 2018

IN THE INTEREST OF: N.M., A MINOR APPEAL OF: J.C., MOTHER IN THE INTEREST OF: N.M., A MINOR APPEAL OF: N.M., FATHER IN THE INTEREST OF: N.W.M., A MINOR APPEAL OF: N.M., FATHER IN THE INTEREST OF: N.W.M., A MINOR APPEAL OF: J.C., MOTHER

          Appeal from the Order December 8, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0000856-2016, FID: 51-FN-000792-2016

          Appeal from the Order Entered December 8, 2016 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000856-2016

          Appeal from the Decree Entered October 26, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000573-2017, CP-51-DP-000856-2016

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

          OPINION

          LAZARUS, J.

         J.C. (Mother) and N.M. (Father) (collectively, Parents) appeal from the trial court's permanency orders[1] designating reunification with Parents or guardian as the current placement goal, declining to reunify Parents with their minor daughter, N.M. (born 2/16), or place N.M. in kinship care, and maintaining the status quo with N.M. in foster care and mandating that N.M. stay in foster care "until there's a determination as to the cause of [N.M.'s] injury."[2] Parents also appeal from the trial court's subsequent decrees changing the goal to adoption and involuntarily terminating[3] their parental rights to N.M.[4] After careful and deliberate consideration, we reverse and vacate.

         On April 12, 2016, seven-month-old N.M. and her then-two-year-old brother, E.M., were removed from Parents'[5] care based on allegations of physical abuse to N.M. Mother took N.M. several times to the pediatrician when N.M. exhibited signs of increased fussiness. On the first occasion, the morning of April 6, the pediatrician diagnosed N.M. with an ear infection and prescribed an antibiotic. Immediately following that doctor's appointment, Mother was at a play date with N.M. and felt a "popping on [N.M.'s] side." Mother returned to the pediatrician's that afternoon; the doctor could not feel the "popping" and told Mother the fussiness was from N.M.'s ear infection. When N.M.'s heightened fussiness failed to decrease that evening, Father took N.M. back to the pediatrician the next morning, April 7; the pediatrician ordered an outpatient chest x-ray. Parents took N.M. to the Children's Hospital of the University of Pennsylvania (CHOP) that same day; x-ray results yielded mildly displaced acute fractures of her sixth and seventh left posterior ribs.[6] N.M. was admitted to CHOP for a magnetic resonance imaging (MRI) and consultation with a team of doctors. The CHOP medical team identified the primary concern as non-accidental trauma and determined that N.M.'s injuries were not likely due to any genetic or metabolic causes.

         A report was filed with the Philadelphia Department of Human Services (DHS) on the day of N.M.'s admission to CHOP, April 7, 2016. N.M. was discharged from CHOP on April 12, 2016. On July 7, 2016, the court held an adjudicatory hearing where Natalie Jenkins (a DHS social worker), Mother, and Dr. Natalie Stavas (a CHOP pediatrician with a concentration in child abuse cases) testified. Doctor Stavas opined that nothing was provided to the CHOP team that would explain N.M.'s rib fractures, that it would be very unlikely that E.M., a toddler and N.M.'s older brother, would be able to inflict the force necessary to fracture N.M.'s ribs, and that blood tests and lab work did not uncover any genetic disorders to explain the fractures.[7] Social workers testified that Parents, individually, gave consistent stories with regard to the events leading up to discovering N.M.'s injuries, noting that Parents are the sole caregivers for N.M., the family home was extremely safe, and E.M. is never around N.M. unsupervised. Finally, Mother testified that she had no idea how N.M.'s injuries occurred, but that E.M. would often forcefully run into N.M.'s back when Mother was holding N.M. in her arms. Id. at 136.

         At the conclusion of the hearing, N.M. was adjudicated dependent[8]based on the two unexplained acute rib fractures diagnosed at CHOP; she was placed in the custody of DHS. DHS determined the abuse allegations to be founded and identified Parents as the perpetrators.[9]

         N.M. was placed in foster care and E.M. was placed in approved kinship care with his paternal grandmother, pursuant to an emergency protective custody order. Importantly, no aggravated circumstances were found. The trial court ordered Parents each to submit to a behavioral health evaluation, complete parenting classes and attend individual therapy. On the same date, E.M. was adjudicated dependent with supervision[10] and he was reunified with Parents.

         On August 18, 2016, at an initial permanency review hearing, the court discharged E.M.'s dependency petition and supervision, finding that Parents had the protective capacity to care for E.M. and that E.M. was safe in Parents' home. N.M., however, remained in foster care; the court refused Parents' request to have N.M. placed in kinship care. The court further ordered that Parents have supervised visits with N.M. and that DHS refer Parents for an "expedited" parenting capacity evaluation.

         On December 8, 2016, the court held a permanency review hearing. At the hearing, the court acknowledged that Parents had fully complied with their service plan objectives. In coming to its decision to keep N.M. in foster care and not reunite her with Parents or place her in kinship care, the court made the following statements on the record:

So, you know what, if we're going to stay stuck, we're going to stay stuck. Because either someone has to cop to it or there has to be a plausible explanation with the significance of the injuries to [N.M.] because I'm telling you that testimony by the doctor was so damning. She sealed any doubt, any variable that it could be anything but abuse.
* * *
So, I don't know how we get over this hurdle. I'm definitely not going to allow supervised visits in the parent's home because I need line of sight, line of hearing. As far as I'm concerned . . . this is still an open investigation.[11] Until we get some closure about how this happened, we're not going to get beyond this. I can't look the other way on that. I just can't. . . . [U]nless somebody is willing to say, "This is how [N.M.] got injured, " [N.M.] can't come back to that home because I can't risk it a second time and a worse injury. I can't do it. And we don't have any explanations.
So, I don't know what you want me to do. I'm open to any suggestions to try to move this forward to reunification, but that's the bottom line. We can talk about services and how parents are fully compliant. I'll find that the parents are fully compliant. It doesn't move the needle for me. We came in because a baby was injured. And the thing that brought this case into [court] still exist[s] with no explanation. Can't do reunification if that's the case.
* * *
We had the child abuse hearing. At some point in time if it's going to move the needle[, ] I would allow the doctor to testify today. I would. I would. I absolutely would.
And as the [c]ourt I will be open and receptive to anything you bring for me. That's why I'm not saying no if they had a geneticist come in and say, "This is where we are."
I'm willing to receive that, but, until such time I can't do anything because the bottom line is I have to ensure the child's safety.
* * *
I guess the other side of the conversation is if I leave her [in foster care] maybe I get closer to an answer as to what happened instead of moving her to grandmom. . . . So, I'm not going to consider kinship care.

N.T. Permanency Hearing, 12/8/16, at 14-16, 20, 22, 29-30 (emphasis added).[12] Mother and Father filed timely notices of appeal and court-ordered Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal.

         While the permanency matter was pending on appeal, the trial court held further hearings in the matter on March 9, 2017, May 23, 2017, July 11, 2017 and October 26, 2017. At the March 2017 hearing, Attorney Marc Freeman entered his appearance as co-counsel[13] for Mother, see N.T. Dependency Hearing, 3/9/17, at 5, and attempted to admit two expert medical reports to explain N.M.'s injuries. Id. at 8. The court, however, would not permit Mother to have two attorneys, id. at 10, found Attorney Freeman's conduct "disrespectful [a]nd a little arrogant, " id. at 13, refused to take any testimony in the case, id. at 19, and ordered the parties to work on how evidence will be presented in the case. (Emphasis added).

         At the May 23, 2017 hearing, Attorney Freeman was listed as counsel for Mother. With regard to permanency matters, the court chose to only hear evidence regarding "where N.M. is, . . . is she receiving services, [and] was she last seen in 30 days." N.T. Hearing, 5/23/17, at 26. The court again refused to accept from Attorney Freeman the reports and curriculum vitae of two doctors regarding a non-abusive explanation for N.M.'s injuries. Id. at 41. The focus of the court's time was spent on addressing outstanding motions in the case. Id. at 26-27.[14] Ultimately, the court ruled that: (1) any grandparent visitation with N.M. is immediately suspended; (2) it is not in N.M.'s continued best interests to explore placement in kinship care; and (3) supervised, line-of-sight parental visitation was continued. Id. at 35, 37-39, 42. With regard to kinship care, the court determined it was not to be explored despite DHS social worker Molly McNeil testifying that she had conducted a full investigation on kinship care for N.M., that DHS had approved paternal grandmother as a willing kinship provider, and that DHS would explore her as a kinship provider. Id. at 31-32. Following the hearing, DHS filed petitions to change the goal to adoption and to involuntarily terminate Parents' rights to N.M.[15]

         At the July 11, 2017 hearing, the court ruled on several motions from the prior listing. Specifically, the court denied the request to have N.M. seen by an out-of-state physician for additional medical testimony in the case, noting that the child abuse finding, which was substantiated by a doctor at the July 2016 adjudicatory hearing, was never challenged by Parents. The court also denied a request to have witnesses appear via video feed. The court excluded Parents' expert reports from Doctors Haluck and Mack, [16] again noting that the child abuse finding was final and had not been timely challenged.[17] Finally, the court denied Parents' motion to quash DHS's subpoena for their treatment records, finding that Parents had signed consent forms waiving any potential psychotherapist-patient privilege. In concluding the hearing, the court pronounced the following:

Let me just say this and let me be clear: this matter is going to be heard for a contested goal change termination on 10/26/2017. That means by September 26, 2017, there should be an exchange of all exhibits amongst parties that are to be - that will be used in anticipation of the next court date. That would also include witness lists. So if there's experts, CVs, whatever you need should be produced to all parties by September 26th and that gives you 30 days in anticipation of the next court date.

N.T. Hearing, 7/11/17, at 59 (emphasis in original and emphasis added).

         On October 26, 2017, the court held a goal change/termination hearing, after which it granted DHS' petitions and involuntarily terminated Parents' rights to N.M. pursuant to sections 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.[18] The court largely based its decision to terminate under section 2511(a) on the fact that Parents had refused to comply with the service plan objective of receiving appropriate mental health treatment to "address [and] understand the reason or cause of N.[]M.'s physical injuries." Trial Court Opinion, 2/9/18, at 7. On November 17, 2017, Parents filed timely notices of appeal and Pa.R.A.P. 1925(a)(2)(i) concise statements of errors complained of on appeal.

         On appeal from the permanency orders, Mother and Father present the following issues for our consideration:

(1) Whether the trial court erred and/or abused its discretion by entering an order on December 8, 2016 denying Mother & Father reunification with N.M.? More specifically, the trial court abused its discretion as substantial, sufficient and credible evidence was presented at the time of trial indicating Mother [and] Father were fully compliant with all of their goals and the Court indicated that finding on the record, yet ordered that the case remain "status quo".
(2) Whether the trial court erred and/or abused its discretion by entering an order on December 8, 2016 denying counsel's repeated requests to have N.M. moved to a kinship care home rather than continue to reside in general foster care? More specifically, the trial court abused its discretion by not following State [and] Federal Laws regarding kinship care placement of children when substantial, sufficient and credible evidence was presented to the Court indicating that an approved family member was ready and available to care for N.M.
(3) Whether the trial court erred and/or abused its discretion by violating the protections of the Due Process Clause as guaranteed by both the Pennsylvania Constitution and the United States Constitution by halting the stated goal of reunification, without appropriate notice to Mother and Father of the Court's change in the Permanency Plan, thus denying Mother and Father notice and an opportunity to prepare and be heard on such issue?

         On appeal from the goal change/termination decrees, Parents present the following issues for our consideration:

(1) Whether the [t]rial [c]ourt erred and/or abused its discretion by denying Parents['] Motion to Recuse Judge Younge?
(2) Whether the [t]rial [c]ourt erred and/or abused its discretion when it excluded testimony from the Parents' licensed therapists?
(3) Whether the [t]rial [c]ourt erred and/or abused its discretion when it found clear and convincing evidence that the individual and couples therapy in which Parents were engaged in failed to comply with the Permanency Plan?
(4) Whether the [t]rial [c]ourt erred and/or abused its discretion when it excluded evidence that N.[]M.'s sibling[, ] E.M.[, ] had been returned to Parents' custody and E.M. had been deemed safe in Parents' care?
(5) Whether the [t]rial [c]ourt erred and/or abused its discretion by entering an order that no family members be explored for N.[]M.'s placement, despite counsel's repeated requests to have N.[]M. moved to approved kinship care home rather than continue to reside in general foster care?
(6) Whether the [t]rial [c]ourt erred and/or abused its discretion in finding DHS met its burden by clear and convincing evidence that Parental rights to N.[]M. should be involuntarily terminated and the goal changed[19] to adoption?

Appellants' Briefs, at 9.

         Before reviewing the merits of Parents' issues, we must determine whether we have jurisdiction over the appeals in the permanency matter. In particular, we must examine whether the permanency review orders of December 8, 2016, are appealable orders. See Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000) ("[W]e lack jurisdiction over an unappealable order, it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order."). It is well-settled that, "[a]n appeal lies only from a final order, unless permitted by rule or statute." Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b). Moreover, with regard to dependency matters, "[a]n order granting or denying a status change, as well as an order terminating or preserving parental rights, shall be deemed final when entered." In re H.S.W.C.-B., 836 A.2d 908, 910 (Pa. 2003).

         Here, the trial court did not grant or deny a status change; the goal remained reunification throughout and Parents never asked for it to be changed. Moreover, the instant permanency orders neither affected visitation nor custody. See id. (noting that all orders dealing with visitation or custody, with exception of enforcement or contempt proceedings, are final when entered.). Rather, the sole request Parents made at the permanency review hearing was to remove ...


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