J-A29030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.R., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: M.R., MOTHER

                                                     No. 508 WDA 2016


                  Appeal from the Order March 11, 2016
            In the Court of Common Pleas of Allegheny County
             Family Court at No(s): CP-02-DP-0001680-2015


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 15, 2016

     M.R. (“Mother”) appeals from the March 11, 2016 order of adjudication

and disposition finding that:   A.R. (“Child”) was dependent; the Allegheny

County Office of Children, Youth and Families (“CYF”) made reasonable

efforts to prevent or eliminate the need for removal; and Child was to

remain in foster care, as that was the least restrictive placement that met

Child’s needs. We affirm.

     The trial court set out the following factual and procedural history:

        The parties appeared on November 16th, 2015, December
        16th, 2015, January 13th, 2016, February 12th, 2016,
        February 26th, 2016 and March 11th, 2016 for Shelter
        Review and Adjudicatory Hearings. Ultimately, [Child] was
        adjudicated dependent under 42 Pa.C.S. §6302(1). At
        each hearing,1 the Court found that [CYF] made
        reasonable efforts to prevent or eliminate the need for
        removal of the child from [Mother’s] care. Mother filed a
        timely appeal in this matter alleging that the Court acted
        unreasonably in finding that CYF made reasonable efforts
J-A29030-16


       to prevent or eliminate removal, by placing the child in
       stranger foster care at the dispositional phase of the case
       and that Mother’s due process rights were violated by
       allowing multiple continuances. For the reasons set forth
       below, the orders of this Court should be affirmed.
          1
           With the exception of the first shelter hearing,
          which was conducted by Hearing Officer James Alter.

                                  ...

       The child was born [in November 2015]. CYF received a
       referral . . . from the hospital staff regarding Mother’s
       ability to provide basic care for the infant. The staff’s
       concerns centered on Mother’s alleged inability to parent
       the child based upon her history of bipolar disorder,
       depression, and mild retardation. CYF was able to identify
       the potential father, M.W. (hereinafter Father), but could
       not locate him. The caseworker attempted to locate Father
       at his last known address but was unable to do so prior to
       removal.

       CYF was granted an Emergency Custody Authorization
       order that gave them permission to place the child in
       shelter care. A Shelter Hearing was held on November
       16th, 2015 before Hearing Officer James Alter. The Court
       ordered CYF to file a Petition for Dependency. Based upon
       the age of the child, Mother’s mental health concerns, and
       not being able to locate Father, the Court ordered it was
       reasonable for the child to remain in care. Additionally,
       the Court held that based upon the emergency nature of
       the situation, safety consideration and the circumstances
       of the family, the lack of services were reasonable. The
       Court ordered CYF to investigate possible family
       placements and prepare a Family Finding Report.

       A Petition for Dependency was filed on November 16th,
       2015. The family appeared before this Court on December
       16th, 2015 for an Adjudicatory Hearing on aforementioned
       Petition. Both Mother and Father appeared, and Father
       requested counsel as well as a paternity test. Father
       presented with obvious mental limitations, and the Court
       had concerns about his capacity to understand the
       proceedings. Additionally, it was discovered that Father
       had relocated to Philadelphia. The Court advised Father to
       obtain counsel, and he was given the brochure for the

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J-A29030-16


       Juvenile Court Project Office. Additionally, CYF provided
       the parties with over 300 pages of reports regarding
       Mother’s mental health treatment. The Court ordered that
       genetic testing be completed that day, and that Mother
       attend an individual and interactional evaluation by
       Allegheny Forensic Associates (hereinafter AFA). Counsel
       for Mother requested additional visits and that CYF make a
       referral to the Office of Intellectual Disability (hereinafter
       OID) for a parenting assessment. The Court agreed to
       increase Mother’s visitation but wanted Mother to complete
       the AFA evaluations prior to being referred to the OID. All
       parties were in agreement with the continuance.

       The parties appeared again on January 13th, 2016. There
       was discussion about how best to address Mother’s
       multiple and conflicting diagnoses as contained in the
       records provided by CYF at the previous hearing. There
       were concerns that Mother had a mental retardation
       diagnosis along with an intellectual disability. All parties
       expressed concern over whether Mother’s parenting needs
       may be best met by Achieva2. There was contradictory
       information as to the level Mother was functioning on the
       [i]ntellectual disability scale and her specific needs were
       unknown.      CYF had not made referrals for the AFA
       evaluations pending the paternity testing. Paternity tests
       confirmed that M.W. was indeed the biological father of the
       child; however, Father did not appear at the hearing. CYF
       was in communication with the Office of Child Youth and
       Families in Philadelphia for the purpose of investigating
       Father’s living arrangements.
          2
            This organization provides services to individuals
          suffering from moderate to severe intellectual
          disabilities. Achieva offers parenting supports for
          disabled individuals as well as their families.

       CYF requested a continuance to investigate Father’s ability
       as a ready, willing and able parent, as well as to make
       referrals for AFA evaluations for Mother and Father.
       Mother’s counsel objected to any further delay alleging
       that she was ready, willing and able to care for the child.
       The Court granted the continuance based on overall lack of
       information about Mother’s mental health status. The
       Court was satisfied that Mother was receiving adequate
       mental health treatment and that a brief delay was

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J-A29030-16


       reasonable in order to determine Mother's exact diagnosis.
       The Court ordered that CYF make a referral for expedited
       AFA evaluations.

       The parties next appeared on February 12th, 2016. Father
       appeared at this hearing but was again unrepresented.
       The Court expressed a continued concern that Father did
       not fully understand the proceedings. Father requested a
       continuance to obtain an attorney. Mother had not yet
       attended her AFA evaluations as they were scheduled for
       the week following that hearing3.        Mother’s counsel
       strenuously objected to any further delays in the
       proceedings and requested that the child be returned to
       Mother’s care. Ultimately, the Court continued the case
       two weeks so that Father could retain counsel4 and so the
       Court would have the benefit of reviewing the reports from
       the AFA evaluations.     The same concerns surrounding
       Mother’s mental health diagnosis persisted and the Court
       believed the AFA evaluator to be in the best position to
       recommend services for the family.
          3
           The AFA referral was made on January 13th, 2016
          by CYF caseworker Heather Lunn[.]
          4
            The Court asked the CYF caseworker to accompany
          him to the Juvenile Court Project’s Office to apply for
          counsel, which she agreed to do.

       An Adjudicatory Hearing was held on February 26th, 2016.
       Father again appeared without an attorney5. The Court
       was able to locate a conflict parent advocate to represent
       Father after a brief delay in the proceedings. Father’s
       counsel made a request that Father’s portion of the case
       be continued.     The Court granted this request but
       permitted Mother’s case to be presented. CYF Supervisor
       Wayne Noel, CYF caseworker Heather Lunn, Mother’s
       psychiatrist Dr. Sharon Rector[,] and Mother testified at
       the hearing6. Evidence was presented that Mother was
       involved in comprehensive mental health treatment at
       Turtle Creek Valley MHMR (hereinafter Turtle Creek).
       Mother was receiving a wide array of services and had an
       entire treatment team. Dr. Rector testified as to some of
       the services that Mother was receiving as well as some of
       her goals. She was also able to observe an hour long visit
       with Mother and the child. The doctor felt comfortable


                                   -4-
J-A29030-16


       opining that Mother was able to care for the child despite
       not having any formal training in parent-child bonding or
       parenting generally. It was concerning that she could
       opine about this so clearly after only observing Mother with
       the child for one hour. Strangely enough, Dr. Rector was
       unable to provide an explanation as to why she had
       changed Mother’s intellectual disability diagnosis several
       times7. In fact she was not even sure about Mother’s IQ
       score, which is a vital component to determining the level
       of an individual’s intellectual disability. Dr. Rector skirted
       many questions during cross examination about this very
       issue. The Court was in no better position to determine
       what Mother’s diagnosis was after Dr. Rector’s testimony.
          5
             Father failed to provide the requisite financial
          information.
          6
             Mother attended the Achieva evaluations on
          January 26th, 2016 and February 1st, 2016 as well
          as her AFA evaluation on February 1st, 2016.
          7
            Despite the fact that she had been treating Mother
          since May of 2015.

       At the hearing, Mother was candid about her need for
       services before the child could return to her home. Mother
       lacked basic knowledge regarding Child’s medical needs.
       She had taken some basic parenting classes but still
       appeared to not fully understand the seriousness of
       parenting an infant. She testified that she was not current
       on rent and that maternal grandmother was residing in her
       home. This was a concern as she was not listed on the
       lease and Section 8 prohibits additional occupants not
       known to their agency. Maternal Grandmother worked
       outside of the home and could not provide around the
       clock supervision.

       The parties received the Achieva recommendations prior to
       the hearing but had only recently received the results of
       the AFA evaluation. CYF did not have the opportunity to
       implement additional services prior to receiving the report
       from the AFA evaluations. Both evaluations recommended
       additional services to assist Mother with parenting. The
       case lasted a number of hours but ultimately had to be
       continued because both Mother and KidsVoice had to
       present their cases8. The case was continued two weeks

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J-A29030-16


       and the Court ordered that Mother have as many in home
       visits as possible9.
          8
           The AFA evaluat[or], Dr. Patricia Pepe, was also
          unavailable to testify on that date.
          9
           Mother was posted for services on March 9th, 2016
          specifically for assistance in the areas of parenting
          skills development, child development and hands on
          parenting training. CYF was also able to assess a
          maternal aunt but she failed to follow up with the
          agency.

       The case reconvened on March 11th, 2016 and Father
       stipulated to dependency. Mother’s therapist from Turtle
       Creek, Karen Moller, foster mother, CYF case supervisor
       Autumn Smith, Dr. Patricia Pepe, Achieva representative
       Julianne Benzik, and both parents testified at the hearing.
       The therapist testified that she had been working with
       Mother on a regular basis and that Turtle Creek was able
       to address her mental health needs. CYF continued to
       work with Mother to address her needs through services
       although she had not been accepted for services as of the
       date of the hearing. CYF had been working with Mother to
       develop a safety plan for eventual return as well as
       following up on referrals for intensive services. Mother
       was able to have an in-home visit prior to hearing. The
       visit went well, but she needed assistance in preparing a
       bottle as well as with comforting the child when he cried.

       Dr. Pepe provided testimony as to the AFA evaluation of
       Mother conducted on February 17th, 2016. She was the
       first mental health professional to complete an IQ test of
       Mother, which was identified as being 77.         Dr. Pepe
       diagnosed Mother with Bipolar disorder, depression and
       borderline intellectual functioning. It was her opinion that
       Mother did not present with moderate intellectual disability
       either by way of her IQ score, achievement testing, or
       adaptive behavioral functioning testing. It was ultimately
       her opinion that Mother did not possess a comprehensive
       understanding of the Child’s needs and that she would
       benefit from parent education and parent modeling
       training.     Dr. Pepe opined that a professional
       recommendation for services was needed to address
       Mother’s level of functioning and parenting capabilities


                                  -6-
J-A29030-16


         prior to implementing services.       After considering the
         evidence, the Court adjudicated the child dependent and
         ordered that he remain in placement. CYF was ordered to
         implement the services recommended by the AFA
         evaluation and for in-home visits to continue.

Opinion, 5/24/2016, at 1-5 (“1925(a) Op.”). On April 11, 2016, Mother filed

a timely notice of appeal.

      Mother raises the following issues on appeal:

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY
         MAKING A FINDING OF FACT THE CYF HAD MADE
         REASONABLE EFFORTS TO AVOID REMOVAL WHEN THE
         RECORD DOES NOT SUPPORT SUCH A FINDING?

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY
         REFUSING TO RETURN A.R. TO [MOTHER’S] CARE
         WITHOUT A RECORD OF CLEAR NECESSITY TO JUSTIFY
         THE REMOVAL?

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY
         ALLOWING THE MATTER TO BE DELAYED MONTH AFTER
         MONTH WITHOUT ANY CONSIDERATION OF [MOTHER’s]
         RIGHT TO THE CARE AND CONTROL OF HER CHILD?

Mother’s Br. at 7.

      In dependency cases, this Court reviews a trial court order finding a

child dependent for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190

(Pa. 2010).   This Court must “accept the findings of fact and credibility

determinations of the trial court if they are supported by the record.” Id.

      Mother first argues that the trial court’s finding that CYF made

reasonable efforts to prevent Child’s removal from Mother’s care was

unsupported by the record. Mother maintains CYF determined that services

could not be provided until it knew the issues Mother faced, but did not take

appropriate steps to discern the issues. She notes CYF did not refer Mother

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J-A29030-16



to Dr. Patricia Pepe for evaluation until approximately 60 days after Child

was removed from Mother’s care. Mother further argues that the record also

does not support the trial court’s conclusion that the records from Turtle

Creek, which included differing intellectual disability diagnoses, justified

CYF’s failure to make reasonable efforts.         Mother maintains that, even

without knowing the severity of Mother’s intellectual ability, CYF should have

offered support, such as in-home services.

       A trial court must make determinations regarding whether CYF made

reasonable efforts to prevent placement and removal.         See 42 Pa.C.S. §§

6332(a), 6351(b).1
____________________________________________


       1
           Section 6332(a) provides:

            An informal hearing shall be held promptly by the court or
            master and not later than 72 hours after the child is placed
            in detention or shelter care to determine whether his
            detention or shelter care is required under section 6325
            (relating to detention of child), whether to allow the child
            to remain in the home would be contrary to the welfare of
            the child and, if the child is alleged to be delinquent,
            whether probable cause exists that the child has
            committed a delinquent act. . . . If the child is alleged to
            be a dependent child, the court or master shall also
            determine whether reasonable efforts were made to
            prevent such placement or, in the case of an emergency
            placement where services were not offered and could not
            have prevented the necessity of placement, whether this
            level of effort was reasonable due to the emergency nature
            of the situation, safety considerations and circumstances of
            the family.

42 Pa.C.S. § 6332.
(Footnote Continued Next Page)


                                           -8-
J-A29030-16



The trial court concluded that:

          Mother argues that CYF could have implemented additional
          services to prevent or eliminate the need for removal.
          However, in-home services are not a cure all. Each case
          presents with unique facts and circumstances. This case
          was particularly difficult due to the age of the child and
          potential safety risk that return presented if Mother was
          suffering from a moderate intellectual disability. Rather, it
          was a challenge to match a parenting program or a service
          provider with Mother based on the wide spectrum of
          diagnoses made by Turtle Creek MHMR. Additionally, one
          of the most intensive services that CYF often refers,
          Achieva, is more appropriate for an individual suffering
          from moderate intellectual disability. CYF did refer Mother
          for an assessment with Achieva despite the absence of an
          IQ score from Turtle Creek’s records. Mother has been
          receiving mental health treatment for most of her adult life
          at Turtle Creek Valley MHMR. Although the Court believed
          Dr. Rector’s testimony to be contradictory and convoluted,
                       _______________________
(Footnote Continued)

      Section 6351 provides:

          Prior to entering any order of disposition under subsection
          (a) that would remove a dependent child from his home,
          the court shall enter findings on the record or in the order
          of court as follows:

          ...

          (2) 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; or

          (3) if preventive services were not offered due to the
          necessity for an emergency placement, whether such lack
          of services was reasonable under the circumstances; or . .
          .

42 Pa.C.S. § 6351(b).




                                            -9-
J-A29030-16


        it was still satisfied that Mother was receiving some level
        of treatment at Turtle Creek. She had the opportunity to
        meet with her treatment team multiple times a month to
        address her mental health needs.

        The team worked on everything from establishing positive
        relationships to budgeting. Mother also continued to have
        regular visits and attended medical appointments. CYF
        also made reasonable efforts to locate both maternal and
        paternal relatives as placement options. CYF did make
        contact with authorities in Philadelphia to ascertain
        whether Father was a viable placement option. Maternal
        grandmother was not an option because her mere
        presence in the family home jeopardized the one area of
        stability that Mother possessed, housing.

                                    ...

        The Court was not willing to risk the safety of an infant
        when it was unclear what services were needed. It is
        certainly not the position of the Court that a newborn child
        should be removed from his parents care in the excess of
        100 days without any services. But that is simply not the
        case here. Based upon the disparities between the levels
        of functioning, CYF was unable to implement specific
        services for Mother. This Court was satisfied that an AFA
        evaluation would help CYF to remedy the issues. The AFA
        evaluation was the first time that the Court and the parties
        were able to determine that Mother was suffering from
        borderline intellectual disability. And as such, CYF was
        able to develop a plan to address Mother’s specific needs.

        The Court acknowledges that it did take time to make
        referrals for these evaluations. However, these delays
        were not so offensive as to warrant a finding that no
        reasonable efforts were made.      Mother was receiving
        mental health services weekly along with medication
        management. She was attending visits and working with
        the foster mother to learn more about her child's medical
        needs. Throughout the history of the case, Mother has
        acknowledged that she needs help in parenting her child.
        None of the other family placements were appropriate.

1925(a) Op. at 6-7.


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J-A29030-16



      The trial court’s conclusion that CYF made reasonable efforts is

supported by the record. Further, the trial court did not abuse its discretion

in finding that CYF provided reasonable efforts to Mother or in finding that

CYF was permitted to take time to determine which services would best

assist Mother.    The trial court reasoned that Mother’s medical records

provided contradictory information, Mother was receiving assistance through

various services, and Mother was allowed visits with Child.

      Mother next contends there was no clear necessity that justified

removal of Child from Mother’s care.     She argues that Dr. Rector testified

that Mother was compliant with her treatment and “psychiatrically stable

with caveats.” Mother’s Br. at 24. Mother asserts the trial court erred in not

crediting Dr. Rector’s testimony that Mother and Child had a bond, arguing

that although Dr. Rector spent only an hour with Mother and Child, there

was no testimony as to how long Dr. Pepe spent with Mother. She argues

the trial court misapprehended Dr. Rector’s testimony, noting Dr. Rector

made it clear she was providing an expert opinion that there was no

psychiatric reason Mother could not care for Child, and that she was not

providing an expert opinion as to bonding. Mother further argues that the

trial court did not explain why CYF should not have provided crisis in-home

services.

      As discussed above, the trial court did not err in finding CYF made

reasonable efforts to assist Mother. Mother, in effect, is asking this Court to

grant greater weight to the testimony of Dr. Rector than did the trial court.

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J-A29030-16



However, we are bound by the trial court’s credibility determinations, which

are supported by the record, and we cannot reweigh the evidence. See In

re R.J.T., 9 A.3d at 1190.

       Mother’s final claim is that the trial court erred because it allowed the

matter to be delayed without consideration of Mother’s right of care and

control of Child.     Mother’s Br. at 27.           She argues the case should have

proceeded on January 13, 2016, because Mother was prepared to proceed

and to present Dr. Rector’s testimony.2             Id.   She further argues that the

case should have proceeded on February 4, 2016 as to Mother and that the

trial court should not have stopped the February 26, 2016 proceedings at

5:00 p.m., but rather should have continued to hear testimony. Id. at 28.

       This Court reviews the trial court’s order granting a continuance for an

abuse of discretion.      In re J.K., 825 A.2d 1277, 1280 (Pa.Super. 2003).

“An abuse of discretion is more than just an error in judgment and, on

appeal, the trial court will not be found to have abused its discretion unless

the   record    discloses     that   the       judgment   exercised   was   manifestly

unreasonable, or the results of partiality, prejudice, bias, or ill-will.” Id.




____________________________________________


       2
       Mother did not object to the emergency removal or to the December
16, 2015 order granting a continuance.




                                           - 12 -
J-A29030-16



(quoting Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1035

(Pa.Super. 2001)).3

       The trial court found:

           Any delays in the proceedings were not violative of
           Mother’s Due Process rights. This Court took into account
           the prejudice to all parties and the risks of keeping the
           child in foster care. Father also suffered from mental
           health issues and requiring him to proceed at an
           Adjudicatory Hearing without counsel would have been
           egregious. Mother suffered no prejudice from the delay.
           Placing the child in foster care was necessary as Mother
           was not able to care for the child and no family members
           followed procedure to become a placement option.

1925(a) Op. at 7.         This was not an abuse of discretion.   The trial court

considered the interests of Child, Mother, and Father in granting the

continuance and further noted that additional evidence was required,

particularly as to Mother’s ability to care for Child.

       Order affirmed.




____________________________________________


       3
        Pennsylvania Juvenile Court Rule 1122 provides: “In the interests of
justice, the court may grant a continuance on its own motion or the motion
of any party. On the record, the court shall identify the moving party and
state its reasons for granting or denying the continuance.” Further, the
Pennsylvania Juvenile Act provides in part: “On its motion or that of a party
the court may continue the hearings under this section for a reasonable
period, within the time limitations imposed by this section, to receive reports
and other evidence bearing on the disposition or the need for treatment,
supervision or rehabilitation.” 42 Pa.C.S. § 6341(e).



                                          - 13 -
J-A29030-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




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