J-S75016-18

                             2019 PA Super 130

 IN THE INTEREST OF: I.R.-R., A          :    IN THE SUPERIOR COURT OF
 MINOR                                   :         PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: J.R., FATHER                 :
                                         :
                                         :
                                         :
                                         :    No. 2215 EDA 2018

              Appeal from the Order Entered June 26, 2018
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-DP-0001236-2018

 IN THE INTEREST OF: J.R.-R., A          :    IN THE SUPERIOR COURT OF
 MINOR                                   :         PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: J.R., FATHER                 :
                                         :
                                         :
                                         :
                                         :    No. 2217 EDA 2018

              Appeal from the Order Entered June 26, 2018
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-DP-0001237-2018


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

OPINION BY NICHOLS, J.:                               FILED APRIL 24, 2019

     J.R. (Father) appeals from the orders adjudicating dependent his two

daughters, I.R.-R., born in August 2008, and J.R.-R., born in July 2010

(collectively, Children). The orders also found that Father perpetrated child

abuse against I.R.-R. We are constrained to vacate the orders of adjudication

and remand the case for a new hearing on the matter.

     The trial court set forth the relevant facts of this appeal as follows:
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       The family in this case became involved with [the Department of
       Human Services (DHS)] on May 14, 2018, when DHS received a
       Child Protective Services (CPS) report against Father. The report
       alleged that [I.R.-R.] had been sexually abused by Father, most
       recently on May 8, 2018; [I.R.-R.] was taken to St. Christopher’s
       Hospital for Children . . . and was met at [the hospital] by police;[1]
       Father was at work and the police wanted to speak with him; there
       is a history of domestic violence in the home; A.R. (Mother) was
       aware of Father’s sexual abuse for about one year. This report
       was indicated on June 19, 2018.

       DHS visited [I.R.-R.] at [the hospital] on May 15, 2018. [I.R.-R.]
       told DHS that Father had been sexually abusing her for the past
       two years, most recently on May 10, 2018 and that she told
       Mother and her siblings about the abuse about one year ago, but
       the family did not believe the allegations. DHS also learned that
       [I.R.-R.] had been receiving therapy for bed-wetting. [I.R.-R.]
       was subsequently transported for a forensic interview at the
       Philadelphia Children’s Alliance (PCA). When DHS interviewed
       Mother, Mother admitted that [I.R.-R.] disclosed the sexual abuse
       approximately one year ago but Mother did not believe the
       allegations. On May 15, 2018, Children began residing with their
       adult sister (Sister), pursuant to a safety plan.

       On May 16, 2018, DHS spoke with [I.R.-R.] at the home of Sister.
       [I.R.-R.] confirmed that Father had been abusing her and that she
       told Mother about the abuse, but Mother did not believe that the
       abuse occurred. On May 17, 2018, DHS, with the assistance of a
       Spanish interpreter, spoke with Mother over the telephone.
       Mother again admitted that Child disclosed the sexual abuse to
       Mother and that Father denied ever abusing [I.R.-R.]. Mother also
       admitted that she had a history of domestic violence with Father.
       On May 17, 2018, DHS obtained an Order of Protective Custody
       (OPC) because Sister was unable to continue caring for Children
       and Children were subsequently placed together in a foster home
       through NorthEast Treatment Services, Inc. (NET).

       On May 18, 2018, a shelter care hearing was held for Children.
       Father was not present for this hearing. The court lifted the OPC
       and the temporary commitment to DHS was ordered to stand. On
____________________________________________


1 The hospital did not find medical evidence of sexual abuse.             See N.T.
Adjudicatory Hr’g, 6/26/18, at 57.

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      May 22, 2018, DHS filed a dependency petition for Children due
      to concerns of sexual abuse of [I.R.-R.] by Father. On June 26,
      2018, an adjudicatory hearing was held for Children. Father was
      not present for this hearing. At this hearing, testimony was given
      by the DHS social worker, the NET case manager, and the PCA
      forensic interviewer.

Trial Ct. Op., 9/11/18, at 1-2 (record citation and footnotes omitted). Children

were not present at the hearing.

      Counsel for DHS called the PCA forensic interviewer as her first witness.

Father’s counsel objected “to anyone reading any statements of the child

unless there’s some reason that it should fall under a tender years exception.”

N.T. Adjudicatory Hr’g at 16.     The trial court overruled the objection, and

Father’s counsel responded, “I would be able to stipulate that if the . . . worker

testified, she would testify in conformity with the [PCA] report.” Id. at 17.

Father’s counsel subsequently clarified her stipulation stating, “I won’t

stipulate on behalf of my client that these things are true; it’s that this would

be the testimony.” Id. at 20. In light of this stipulation, DHS entered the PCA

report into evidence and the court excused the forensic interviewer.

      The PCA report summarized I.R.-R.’s interview statements as follows:

      [Father] did “sexual things to [I.R.-R.].”        [Father] put his
      “inappropriate part” in [I.R.-R.’s] “inappropriate part” more than
      one time which “hurted so much,” put his “inappropriate part” in
      [I.R.-R.’s] mouth, put his mouth on [I.R.-R.’s] “inappropriate
      part,” touched [I.R.-R.’s] chest area . . . with his hands, put his
      mouth on her chest area, and touched the outside of her
      “inappropriate part” with his hands and his hands were moving
      around. [Father] told [I.R.-R.] not to tell.




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DHS Ex. 2 at 5. A court-ordered psychological evaluation indicated that I.R.-

R. is scared of Father, and she hopes to return to Mother’s care if Father leaves

the family home. DHS Ex. 5 at 2 (unpaginated).

       Later at the hearing, counsel for DHS called a DHS social worker as a

witness.    The social worker explained that she conducted an investigation

based upon the abuse documented in the CPS report. Again, Father’s counsel

objected to “any testimony of this worker as to any hearsay statements made

by the child or out-of-court statements offered for the truth or their veracity .

. . .” N.T. Adjudicatory Hr’g at 27. The trial court overruled the objection

stating, “Well, they’re not . . . being offered for the truth of the matter; they’re

offered to prove what the state . . . of mind of the child at the time [s]he was

interviewed, so, your objection is overruled.” Id. DHS entered the CPS report

into evidence, and the social worker testified about her investigation into I.R.-

R.’s sexual abuse allegations.2

       After all testimony was given, the trial court found clear and
       convincing evidence for Children to be adjudicated dependent.
       The trial court discharged the temporary commitment to DHS and
       fully committed Children to DHS. The trial court referred [I.R.-R.]
       to Behavioral Health Services . . . for consultation, evaluation, and
       monitoring and Father for evaluation and monitoring. The trial
       court also ordered Father to be referred for a parenting capacity
       evaluation, to the Achieving Reunification Center . . . for
       parenting, housing and all other appropriate services, to Menergy
       for domestic violence and anger management, and for a
       biopsychosexual evaluation. Additionally, Father was ordered to
____________________________________________


2 The CPS report included the same allegations summarized in the PCA report.
Indeed, the social worker characterized I.R.-R.’s statements as “consistent”
and “never wavering.” N.T. Adjudicatory Hr’g at 46.

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      provide documentation or verification of employment. The trial
      court found that there was clear and convincing evidence that
      Father posed a grave threat to Children and Father’s visits were
      suspended until further order by the court.

Trial Ct. Op. at 2-3.

      Father timely filed two notices of appeal on July 26, 2018. At docket

number 1236-2018, Father filed a notice of appeal from the trial court’s order

related to I.R.-R. At docket number 1237-2018, Father filed a separate notice

of appeal from the court’s order related to J.R.-R. This Court consolidated the

appeals sua sponte on August 23, 2018.        The notices of appeal included

concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i), claiming that the court admitted impermissible hearsay and

DHS failed to prove that Father committed abuse or that the court should have

adjudicated Children dependent.

      The trial court filed a responsive opinion, arguing that it correctly

admitted I.R.-R.’s out-of-court statements.    The court noted, “[a]n out-of-

court statement is not hearsay when the statement is offered to . . . reflect

the declarant’s state of mind.” Trial Ct. Op. at 8 (citing In re Child M., 681

A.2d 793, 799-800 (Pa. Super. 1996)).        The court also provided another

rationale for admission of the statements, observing that “[t]hese types of

[out-of-court] statements are not admissible as substantive evidence of the

truth of a child’s accusation of abuse but can be used to explain the basis of a

witness’s conclusions, including the conclusions of an individual investigating

child abuse.” Id. (citing In re Adoption of R.K.Y., 72 A.3d 669, 678 (Pa.

Super. 2013)). In light of the properly admitted testimony and exhibits, the

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court concluded that DHS satisfied its burden of providing clear and convincing

evidence to support the adjudications.

       On appeal, Father raises four questions, which we have reordered as

follows:

       [1.] Did the trial court commit reversible error when it admitted
       the hearsay testimony of the social worker and unreliable hearsay
       testimony/records of the PCA investigator including what the
       children allegedly stated to them?

       [2.] Did the trial court commit reversible error when it deprived
       Father of his due process rights and other Pennsylvania and
       Federal constitutional rights by admitting unreliable hearsay
       evidence including the children’s statements which were not
       subject to cross-examination?

       [3.] Did the trial court commit reversible error when it adjudicated
       the children dependent where [DHS] did not meet its burden by
       clear and convincing evidence to establish that the children were
       dependent under 42 Pa.C.S. § 6302 as to Father?

       [4.] Did the trial court commit reversible error when it found child
       abuse by Father where [DHS] did not meet its burden by clear and
       convincing evidence?

Father’s Brief at 4.3

       We address Father’s first two questions together, because they are

related. Father emphasizes that the trial court admitted “several pieces of

____________________________________________


3 Although Father presents four distinct questions on appeal, the argument
section of Father’s brief is not divided into four separate sections. See
Pa.R.A.P. 2119(a) (stating: “The argument shall be divided into as many parts
as there are questions to be argued; and shall have at the head of each part
. . . the particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent”). Nevertheless, Father’s
failure to comply with Rule 2119(a) does not preclude this Court from
reviewing the questions presented.

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hearsay evidence” over the objection of Father’s counsel. Id. at 7. Although

the court admitted I.R.-R.’s out-of-court statements to demonstrate the

child’s state of mind, Father argues that I.R.-R.’s state of mind was not an

issue at the adjudicatory hearing.     Id. at 7.    Father asserts that the sole

purpose of the hearing was to determine whether Children were without

proper parental care and control due to the alleged sexual abuse, and evidence

regarding I.R.-R.’s state of mind contributed very little to the dependency

determination. Id. at 7-8. Father insists I.R.-R.’s out-of-court statements

constituted inadmissible hearsay that did not fall under any exception to the

general rule prohibiting hearsay. Id. at 9.

       “[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 [trial] court’s inferences or conclusions of law.”      In re

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). “Accordingly, we review for an abuse

of discretion.” Id. (citations omitted).

       “The admission of evidence is within the discretion of the trial court and

such decisions will be reversed only if the trial court has abused its discretion.”

R.K.Y., 72 A.3d at 675 (citation omitted).         The Rules of Juvenile Court

Procedure provide that in adjudications, each party shall have an opportunity

to present evidence subject to the rules of evidence. Pa.R.J.C.P. 1406(C),

cmt.




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       “‘Hearsay’ is ‘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.’” In re A.J.R.-H.,

188 A.3d 1157, 1167 (Pa. 2018) (quoting Pa.R.E. 801(c)).             “Under the

Pennsylvania Rules of Evidence, hearsay evidence is incompetent and

inadmissible unless it meets an exception set forth in the Rules or one

prescribed by this Court or statute.” Id. (citation omitted).

       Nevertheless, “[n]ot all remarks which a witness attributes to another

person can properly be characterized as ‘hearsay.’” Child M., 681 A.2d at

800.

       An out-of-court statement is not hearsay when it is introduced
       purely for the purpose of establishing that the statement was
       made and not to establish its truth. Likewise, an out-of-court
       statement is not hearsay if it is offered to explain a course of
       conduct or to reflect the declarant’s state of mind.

Id. (citation and brackets omitted); compare Pa.R.E. 803(3) (providing an

exclusion to the rule against hearsay for statements of the “declarant’s then-

existing state of mind (such as motive, intent or plan) or emotional, sensory,

or physical condition (such as mental feeling, pain, or bodily health)”).

       “Testimony as to what a child tells other people is admissible in order to

establish that child’s mental state at the time he or she made the comment,”

particularly for purposes of identifying the child’s needs for therapy and

treatment.    R.K.Y., 72 A.3d at 677 (citing Child M., 681 A.2d at 800)

(brackets omitted). “[T]estimony introduced to show a child’s state of mind

for treatment and therapy purposes is admissible only for that limited purpose

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and not as substantive evidence of the truth of the matters asserted.” Id. at

678 (citations omitted).

      Instantly, the trial court permitted DHS to admit I.R.-R.’s out-of-court

statements through testimony from the social worker and exhibits including

the CPS and PCA reports. This evidence was admissible for the limited purpose

of demonstrating I.R.-R.’s state of mind for treatment and therapy purposes

following her allegations against Father. See id. at 677-78. Accordingly, the

court did not abuse its discretion in admitting this evidence. Id. at 678.

      In his third and fourth issues, Father complains that I.R.-R.’s out-of-

court statements were the only pieces of evidence concerning the abuse

allegations, and DHS provided no reasons why Children could not attend the

hearing to testify against him. Father’s Brief at 7-8. Father insists the trial

court impermissibly considered the out-of-court statements for the truth of

the matters asserted, as there was no other evidence to demonstrate that he

could not provide proper parental care. Id. at 9. Absent additional evidence,

Father asserts that DHS did not adequately prove that he committed child

abuse and Children were dependent. Id. at 10. Based upon the foregoing,

Father concludes that this Court must reverse the orders adjudicating Children

dependent and remand the matter. Id.

      Our Court has analyzed the burden of proof in dependency cases as

follows:

      To adjudicate a child dependent, a trial court must determine, by
      clear and convincing evidence, that the child:


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            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 § 6302. “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 wherever possible,” see 42
      Pa.C.S. § 6301(b)(1), “a child will only be declared dependent
      when [s]he is presently without proper parental care and when
      such care is not immediately available.” In re R.T., . . . 592 A.2d
      55, 57 ([Pa. Super.] 1991) (citation omitted). 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.” In re C.R.S., supra
      at 845 (citation omitted).

In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013).

      “A finding of abuse may support an adjudication of dependency.”

Matter of C.R.S., 696 A.2d at 843. The Child Protective Services law defines

“child abuse” as “intentionally, knowingly or recklessly . . . [c]ausing sexual

abuse or exploitation of a child through any act or failure to act.” 23 Pa.C.S.

§ 6303(b.1)(4).      “Sexual abuse or exploitation” is defined as “[t]he

employment, use, persuasion, inducement, enticement or coercion of a child

to engage in or assist another individual to engage in sexually explicit conduct,

which includes . . . [a]ctual or simulated sexual activity or nudity for the


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purpose of sexual stimulation or gratification of any individual.” 23 Pa.C.S. §

6303(a).     A finding of abuse must be supported by clear and convincing

evidence. In Interest of J.R.W., 631 A.2d 1019, 1024 (Pa. Super. 1993).

        Instantly, Children did not testify at the adjudicatory hearing.   DHS

entered I.R.-R.’s out-of-court statements into evidence through admission of

the various investigation reports and testimony from the DHS social worker.

DHS did not provide any other evidence to corroborate the claims of sexual

abuse, and the trial court relied on I.R.-R.’s out-of-court statements to

adjudicate Children dependent and find that Father had committed sexual

abuse. See Trial Ct. Op. at 4-7.

        Significantly, I.R.-R.’s out-of-court statements, which the trial court

admitted as evidence of I.R.-R.’s state of mind, do not constitute substantive

evidence proving that Father perpetrated any acts of sexual abuse.         See

R.K.Y., 72 A.3d at 678. Given the state of the record, we are constrained to

conclude that the court abused its discretion, and the evidence DHS presented

was not competent to support Children’s adjudication. Id.; R.J.T., 9 A.3d at

1190.

        Therefore, we vacate the orders of adjudication and remand the case

for a new hearing and determination on the dependency petition, to occur

within forty-five days of this decision.   At that time, the trial court should

determine whether it can evaluate I.R.-R.’s out-of-court statements for the

truth of the matters asserted, pursuant to a recognized hearsay exception

prescribed by this Court or statute.          See, e.g., 42 Pa.C.S. § 5986(a)

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(explaining that statements “made by a child describing acts of indecent

contact, sexual intercourse or deviate sexual intercourse performed with or on

the child by another” are admissible in a dependency proceeding involving

that child if 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 the child either testifies at the

proceeding or is found by the court to be unavailable as a witness).         The

parties also have the opportunity to present any other evidence necessary to

confirm or deny the allegations of abuse. All other aspects of the adjudication

orders shall remain in effect pending the outcome of the new hearing.

      Orders vacated.      Cases remanded with instructions.         Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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