J   -S23016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

    APPEAL OF: T.C., MOTHER




                                        :   No. 3237 EDA 2016

              Appeal from the Order Entered September 27, 2016
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): CP-51-DP-0001453-2016,
                             FID: 51 -FN -001560-2016

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

    APPEAL OF: T.C., MOTHER




                                        :   No. 3390 EDA 2016

              Appeal from the Order Entered September 27, 2016
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): CP-51-DP-0001451-2016,
                             FID: 51 -FN -001560-2016

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

    APPEAL OF: T.C., MOTHER




                                        :   No. 3391 EDA 2016

              Appeal from the Order Entered September 27, 2016
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): CP-51-DP-0001452-2016,
J   -S23016-17


                             FID: 51 -FN -001560-2016

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

    APPEAL OF: T.C., MOTHER




                                               :   No. 3392 EDA 2016

               Appeal from the Order Entered September 27, 2016
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): CP-51-DP-0001450-2016,
                              FID: 51 -FN -001560-2016


BEFORE:     OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                                     FILED MAY 08, 2017

        Appellant T.C. ("Mother") appeals from orders entered September 27,

2016, which continued the suspension of visits with her children, J.U. (born

2001),    H.U.   (born 2003), S.U.        (born    2008), and A.U.     (born 2013)

(collectively "Children"), pending   a   future hearing.' We affirm.

        We adopt the facts as set forth by the trial court:

              On June 6, 2016, the Department of Human           Services
        ("DHS") received a Child Protective Services ("CPS") report
        alleging that J.U. was raped by her stepfather, D.G. On June 7,
        2016, D.G. was arrested and charged with rape by forcible
        compulsion, inter a/ia. D.G. is currently incarcerated at Curran-
        Fromhold Correctional Facility ("CFCF"). Thereafter, Mother
        began working with the Philadelphia Housing Authority ("PHA")

' "All orders dealing with custody or visitation, with the exception of
enforcement or contempt proceedings, are final when entered." In re
H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (citation omitted).



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        to obtain a different apartment and Mother obtained a Protection
        from Abuse ("PFA") order against D.G. On June 27, 2016, DHS
        visited the Mother's home, where the Children were determined
        to be safe. (Statement of Facts: Petition to Determine
        Dependency RE J.U.)

              On July 13,    2016, DHS received a General Protective
        Services ("GPS") report which alleged that Mother was not
        cooperating with the criminal investigation against D.G.; Mother
        would not allow J.U. to testify against D.G.; Mother planned to
        reside with D.G. if he was released from incarceration; and that
        a bench warrant was issued against Mother for contempt of court
        in connection with her lack of cooperation in D.G.'s criminal
        matter. When Mother was arrested on July 13, 2016 pursuant to
        the bench warrant, police officers discovered correspondence
        between Mother and D.G.; that J.U. was anxious to testify
        against D.G.; and that Mother forced J.U. to speak with D.G. on
        the phones; and Mother brought the Children to visit D.G. in
        prison. On July 13, 2016, DHS obtained an OPC [(Order of
        Protective Custody)] for the Children and the Children were
        placed in a foster home through Jewish Family and Children
        Services ("JFCS"). (Statement of Facts: Petition to Determine
        Dependency RE J.U.). On July 25, 2016, a dependency hearing
        was heard before the Honorable Judge Vincent Furlong and the
        Children were adjudicated dependent and the Mother was
        ordered not to speak with the Children about the ongoing
        criminal investigation regarding D.G. and future visits between
        Mother and Children were to be therapeutic and supervised.
        (Statement of Facts: Petition to Determine Dependency RE J.U.)

              On September 27, 2016, the Court held a permanency
        review hearing to determine if T.C. ("Mother") should be allowed
        to resume supervised visitation with the Children. Prior to said
        hearing, CUA [(Community Umbrella Agency)], Mother and the
        Child Advocate had entered into an agreement to suspend
        visitation between Mother and the Children because [of]
        Mother's violation of a Court Order which stipulated that her
        visits with the Children be supervised. Mother was present and
        represented by counsel during said hearing. After a full hearing
        on the merits, the Court found clear and convincing evidence
        that visitation between the Mother and Children was to remain
        suspended because sufficient evidence had been presented as to
        Mother's moral deficiency. The Court found Mother posed a
        grave threat to the Children during and after the prior visitations


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        and Mother had violated prior court orders to not visit the
        Children without supervision. The Court found Mother continued
        to send text messages to J.U. and continued to interfere with the
        criminal investigation of D.G. despite Court Orders not to cause
        such interference. The Court also found that Mother had met the
        Children in secret without supervision and that Mother had
        encouraged the Children to lie to their Foster Parent and
        Therapists.

        1   Mother is mute.

Trial Ct. Op., 12/9/16, at 2-4.

        The orders entered on September 27, 2016, as    a   result of the hearing,

stated that Mother's visits are to remain suspended "until further order of

the court"; the Children shall remain in foster care and in the legal custody

of DHS; the Children may be placed outside of the county; Mother             is   to

continue mental health treatment and parenting classes; and Mother                is

ordered to stay away from Children and their schools. The orders also stated

that the permanency goals for the Children are to return to their parent or

guardian, and that the next permanency hearing was to be held on

December 19, 2016.

        On her appeal from those orders, Mother raises the following issues:

        1.   Did the court err when suspending    Mother's visitations, a
        legislatively protected interest, when there was no competent
        evidence presented as to Mother's mental or moral deficiency?

        2. Did the    court err when suspending Mother's visitations, a
        legislatively protected interest, when there was no competent
        evidence presented as to Mother's posing great threats to the
        children during and after the visitations?

        3. Did the    court err when suspending Mother's visitations, a
        legislatively protected interest, when there was no competent

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        evidence presented as to DHS['] inability to provide Mother with
        a practicable solution for visitations?


Mother's Brief at 2.

              [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 L.V.,   127 A.3d 831, 834 (Pa. Super. 2015) (quoted citation omitted).

"In dependency proceedings our scope of review          is   broad.   .   .   .       [W]e must

exercise our independent judgment in reviewing the court's determination,

as opposed to its findings of fact, and must order whatever           right and justice

dictate."   In re   C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (quoted citation

omitted), appeal denied, 871 A.2d 187 (Pa. 2005).

        We summarize Mother's arguments in support of her issues. First,

Mother argues that the trial court's conclusion that Mother has                   a   mental or

moral deficiency which poses      a   grave threat to the Children is speculative,

because it is based on Mother's past actions. Mother's Brief at 7-8. Mother

claims she "can cease her actions based on the results of the ongoing

investigations. She can also cease her actions with the help of counseling

and therapy such as mandated in           a   dependency proceeding."                 Id. at    8.

Mother asserts that her communications with the younger children are

harmless, because they are not involved in the pending criminal case.                          Id.
Similarly, Mother contends that, "since there was no evidence of any clear



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and present danger of physical harms to the Children during the visitations,

the burden      is on DHS       to prove that the Mother's visitations left the Children

with serious emotional or psychological harms after the visitations." Id. at 9-

10.

        Next, Mother argues that in           In     Re B.G., 774 A.2d 757 (Pa. Super.

2001), this Court held that children around the age of J.U. are required to

"police themselves" to some extent, despite poor lapses of judgment made

by their parents, and that suspension of visits can cause more psychological

harms to    a    child than placing some responsibility to self -regulate on the

child. Mother's Brief at 10-12 (citing B.G., 774 A.2d at 764). Mother

suggests that the fact that the Children became uncooperative with their

caseworker      is   only   a   typical manifestation of separation from their parents,

and that "courts do not abrogate the parental visitation rights on account of

these changes."       Id. at     13 (citing B.G., 774 A.2d at 764).

        Finally, Mother argues that the court erred in suspending visitation

because DHS did not prove that there is no practicable means of allowing

visitations without violation of its orders. Mother's Brief at 14-16 (citing             In
re Rhine, 456 A.2d 608, 612              (Pa. Super. 1983)). According to Mother, the

court should have found Mother in contempt of court for violating its order,

rather than suspending visitations. Id. at 14-15. Mother argues that because

she is mute, DHS should be able to devise                  a   way to have visitations occur

while still protecting the children.        Id. at   16.



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        Regarding our review of visitation restrictions, we have stated            -
        Where, as here, reunification still remains the goal of the family
        service plan, visitation will not be denied or reduced unless it
        poses a grave threat.  .   .   .




        The "grave threat" standard is met when the evidence clearly
        shows that a parent is unfit to associate with his or her children;
        the parent can then be denied the right to see them. This
        standard is satisfied when the parent demonstrates a severe
        mental or moral deficiency that constitutes a grave threat to the
        child.

L.V., 127 A.3d at 839 (citations omitted). "[P]arents whose visitation                      is

opposed by the state constitute            a   grave threat to their child only where

there are no practicable visitation options that permit visitation and protect

the child." Rhine, 456 A.2d at 614. "Unless the state demonstrates with

clear and convincing evidence that even supervised visitation would severely

endanger the child, the court must deny the complete foreclosure of parental

visitation as being contrary to the Act's goal of family preservation."                Id.;
accord In re Mary Kathryn T., 629 A.2d 988, 995                        (Pa. Super. 1993),

appeal denied, 639 A.2d 32             (Pa. 1994).

        The "grave threat" standard is met not only where                a   parent poses   a


physical threat to their child, but when the child is in danger of emotional

abuse. See, e.g., C.B., 861 A.2d at 294 (where                a   father's visits to his son

were suspended based on the father's heinous sexual abuse of the son's

half-sister in his son's presence, affirming that such "clearly established

moral depravity" poses     a   grave threat, justifying suspension of visitation

rights). Moral deficiency constituting          a   grave threat can also be based on       a



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parent's failure to protect    a   child from previous abuse by the other parent,

or   a   parent's continued association with an abusive parent. L.V., 127 A.3d at

840. In L.V., for example, we affirmed the termination of visits with an

infant's mother where it was shown that the infant suffered physical abuse

at the hands of his father, the mother either knew or should have known of

that abuse, and the mother continued to associate with the father even after

the abuse had been discovered and the father imprisoned.              Id. at 833-36,
840.

          However, prior poor judgment by      a   parent, when not indicative of    a


child's danger of future harm, does not constitute        a   grave threat. See B.G.,

774 A.2d at 762-63 (Mother did not pose        a   grave threat where she exercised

poor judgment during two visits by supplying her 14 -year -old daughter with

cigarettes and by telling her the location of her prior abuser, where there

was no evidence of physical or emotional ill effects resulting from the visits);

Mary Kathryn T., 629 A.2d at 991-96, (trial court's conclusion that parents
posed      a   grave threat was not supported by the evidence, where testimony

established that both parents had engaged in therapy to improve their

parenting skills).

          "In rare instances, we have approved restricting or temporarily

suspending visitation even though there has been no showing of such severe

mental or moral deficiencies in the parent as would constitute         a   grave threat

to the child's welfare."    In re Damon     B., 460 A.2d 1196, 1198 (Pa. Super.



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1983) (emphasis in original). In Damon B., we affirmed                        a    reduction in

visitation, not based on the mother's moral deficiency, but because of the

psychological ill-effects the visits caused to her son.               Id.         We stressed,

however, that "[o]ur decision in this case     is   influenced by the fact that this is

a   temporary reduction in visits rather than       a   long-term cessation of visits. In

the latter case, of course, the trial court must find, by clear and convincing

evidence, that visitation poses    a   grave threat to the child." Damon B., 460

A.2d at 1198 n.1 (emphasis in original). In Damon B., the trial court was

scheduled to review the determination within the next seven months.                      Id. at
1198.

        In the case at hand, the trial court concluded that "the testimony of

the DHS worker and the documentation presented to the Court provided

clear and convincing evidence that Mother's continued visitation with the

Children constituted    a   grave threat" and that "continued visitation by the

Mother caused significant emotional effects to the Children." Trial Ct. Op. at

5-7 (unpaginated). The trial court based its conclusion on both the actions

by Mother and their effects on the Children. The court found that Mother

violated the court's order not to communicate with the Children regarding

the    criminal   investigation   of   D.G.   and        the   court's       order    that   all

communications and visitations be supervised; Mother did this by meeting

with the Children without the knowledge of DHS, providing                a   cell phone, and

secretly texting the Children.    Id. at 5-6. Moreover,          in her      text messages,


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Mother encouraged the Children to lie to their foster parent and therapists in

order to interfere with both the placement of the Children and the

prosecution of D.G.     Id.   The court also found that these secret and

unsupervised interactions had emotional effects on the Children: they

caused J.U. to     have suicidal ideations and to be placed          in    a   mental

healthcare facility, and led all of the Children to become secretive and

defensive in their interactions with DHS.   Id.   The trial court based most of its

factual findings on the testimony of the DHS case manager, which, the court

stated, "was deemed credible and accorded great weight."        Id. at   6.2

        We find that the trial court's conclusions are well -supported by the

record. Before the Children were put into placement, Mother continued to

associate with D.G.; prevented J.U. from testifying against D.G. at the

preliminary hearing on his rape charges; and made J.U. speak to D.G., her

alleged rapist, on the telephone. After the Children were put in placement

and Mother was ordered to have supervised visits only, Mother did not            just
violate the court's order by seeing the Children and communicating via

secret text messages, but Mother actually told the Children to lie in court,3




2
   The case manager who testified at the hearing works for the CUA
placement center used by DHS. N.T., 9/27/16, at 4.
3 Mother asked her Children to act "dramatic, crying, and begging" in their
interactions with the District Attorney. N.T. at 14.



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to DHS,4 to their foster parent,5 and to their therapists.6 Evidence of these

conversations was introduced through screen shots of the text messages

from Mother found on one of the Children's cell phones. Additionally, Mother

provided expired        sleeping   pills to her daughter,   unbeknownst to her

caretakers. Id. at 21. The immediate results of Mother's words and actions

were that her oldest daughter, J.U., was placed in          a   mental healthcare




4Mother asked the Children to lie if anyone asked whether a former foster
mother assisted in one of Mother's unsupervised visits. N.T. at 16.
5 Mother asked J.U. to lie about whether Mother had visited her at school.
N.T. at 21-23.
6
    Mother's text messages to J.U. instructed:

        [W]hen you start therapy, dominate every session. All you want
        to talk about is seeing your mom and going home with your
        brothers. Make them listen. Let them know I did not make you
        talk to [D.G.] so we could communicate. It's a habit for you to
        answer my phone when it rings. And that's what you did.

        I would hang up, but [D.G.] would call back. And you felt like
        that's your dad calling to answer. Play these people how they try
        to play you..   .   .




        You are far too intelligent to let these people get you got. You
        can dominate this entire situation. You are your mother's child.



        You're a little me. So, I know you're capable. If you can
        manipulate them instead of them doing it to you, and we can be
        back together before Christmas if we work on this together.

N.T. at 27-28.
J   -S23016-17

facility due to suicidal ideations, Id. at 7, 10,7 and the other Children

became secretive and uncooperative with their caseworker.          Id. at 29-30.
        We therefore find, contrary to Mother's assertions in her                first two

issues, that clear and convincing evidence was presented that Mother has

moral deficiencies and that these deficiencies pose       a   grave threat to her

Children. Like the mother in L.V., 127 A.3d at 833-36, 840, Mother does not

pose    a   direct physical threat to her Children, but continually exercises

judgment that puts the Children         in   harm's way through such things as

continued interactions with D.G., encouraging the Children to deceive their

caretakers regarding their whereabouts, and providing secret (and expired)

medication. Mother's actions are not the minor lapses in judgment exhibited

by the Mother in B.G., 774 A.2d at 762-63, but exhibit        a   persistent intent to

interfere with the Children's ability to engage in honest communication with

their therapists and caretakers.

        We are troubled by the great lengths to which Mother has gone in an

attempt to influence her daughter's testimony, despite being ordered not to

do so. The record substantiates         that such interference from          a   parent   is

bound to place undue stress on      a    child, and we agree with the trial court

that under these circumstances, suspension of visitation                is       the most

appropriate response. And, while most of Mother's actions have thus far

  J.U.'s mental state was attributed to stress regarding Mother getting into
trouble for communicating with her. N.T. at 10.



                                        - 12 -
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been directed at her two older children,8 and have caused the most tangible

harm to her eldest child, the trial court understandably was concerned by

the impact that Mother's moral deficiencies would have during visitation with

her younger children as well.

           Moreover, like Damon B., 460 A.2d at 1198 n.1, this case involves

only   a   temporary restriction on visitation. The child advocate requested that

visits be suspended until Mother completed parenting classes and therapy.

N.T. at 34, 40. The trial court ordered an early relisting of the case, inviting

Mother to present evidence that she completed parenting classes and no

longer posed      a   danger to her Children. N.T. at 41. The court scheduled the

next hearing to take place before three months had passed.           Id.       The trial

court did not abuse its discretion in ordering such     a   temporary cessation of

visits in its attempt to protect the Children from their Mother. Cf. Damon

B., 460 A.2d at 1198 (holding no abuse of discretion where the court was

scheduled to review the determination within the next seven months).

           Mother's arguments fail to recognize that almost all predictions of

future behavior are based on past behavior, and that the trial court properly

took into consideration Mother's ability to change by short -listing       a    hearing

to review its determination. Further, with respect to Mother's contention that



8 The record reflects that Mother sent text messages to J.U. and H.U., and
that the text messages between Mother and H.U. had been deleted before
the Children's caseworker could see them. N.T. at 8-9, 29.



                                         - 13 -
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her communications with H.U. were harmless, we acknowledge that nothing

in   the record has established whether H.U. will be asked to testify at D.G.'s

trial. But, as have stated, suspension of visitation     is   not appropriate merely

to protect the criminal case against D.G. from tampering, but to protect the

Children from the stress and moral dilemma they may face as             a   result from

their Mother's attempts to interfere with that criminal case. Mother's

insistence that there was no evidence of serious psychological harms misses

the point: the trial court properly evaluated whether Mother poses             a   grave

threat of       such harm. The same evidence that demonstrates the harm

already done to Mother's eldest daughter evinces the grave            threat of harm
Mother also poses to her younger children, whom she continues to

manipulate. Mother's suggestion that J.U. was required to "police" herself to

prevent Mother's poor lapses of judgment does not excuse the trial court's

finding that Mother's unsupervised and unauthorized actions have caused

J.U. such significant psychological harm as to warrant medical intervention,

and pose    a   grave threat to the Children's emotional stability.

        Under the facts of this case, the trial court's temporary suspension of

Mother's visitation rights was appropriate. Mother's visitation was not

suspended merely because she disobeyed the court,                  but because the

unsupervised visits and communications that she had with the Children

exhibited   a   wonton moral deficiency that had already begun to cause harm




                                         - 14 -
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to her Children. The          record does not establish any practicable viable

alternatives other than   a   temporary suspension.

        Having discerned no abuse of discretion, we affirm the order below.

See L.V. , 127 A.3d at 834.

        Order affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary

Date: 5/8/2017




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