J-A24034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.Z., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.G., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1817 EDA 2019

                   Appeal from the Order Dated June 4, 2019
     In the Court of Common Pleas of Montgomery County Juvenile Division
                       at No(s): CP-46-DP-0000066-2019


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                            FILED DECEMBER 13, 2019

        Appellant, C.G. (Mother), appeals from the order entered on June 4,

2019 by the Montgomery County Court of Common Pleas regarding her child,

A.Z. (Child), finding it in the best interest of Child to be adjudicated

dependent, and legal and physical custody of Child to remain with the

Montgomery County Office of Children and Youth (OCY). After careful review,

we affirm.

        A summary of the relevant facts and procedural history is as follows.

On April 25, 2019, OCY filed a dependency petition alleging that Child was

without proper parental care and control, and at a proceeding on May 21,

2019, listed originally as an adjudication hearing, Mother, represented by

counsel, appeared together with Child’s father, G.Z. (Father), who was

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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unrepresented. Also present was counsel for the Office of Children and Youth

(OCY) and Child’s guardian ad litem (GAL). OCY indicated that after Mother

and Father failed to comply with three safety plans implemented by OCY, OCY

had requested that Child be transferred into its care and custody in order to

insure Child’s health, safety and welfare.1 At the May 21, 2019 hearing, the

Trial Court initially admitted evidence from OCY, including OCY’s Statement of

Case Facts and Recommendations; a set of colored photographs of Child’s

teeth/mouth depicting badly decayed molars; several drug screens for Father;

a letter from Children’s Hospital of Pennsylvania regarding Child; 2 a drug

screen for Mother; and a school health record. N.T., 5/21/19, at 7-10, 15-16.

OCY recommended that OCY take custody of Child, and that Child be given an

immediate physical and dental examination. Id. at 13. Child’s GAL agreed

with OCY’s recommendation, noting however that she had not yet had the

opportunity to speak with Child. Id. at 15, 33.     The Trial Court then heard

____________________________________________


1On May 13, 2019, OCY received a referral for dental neglect and bodily injury
due to Child reporting her teeth were in pain and she was only observed eating
soft foods. When offered a school snack, Child would state her teeth were in
pain. Child’s school notified caseworker of free dental care provided by school,
and school notified parents, but parents never took Child to any dental care.

2The letter is from a treating pediatrician and states that Mother had Hepatitis
C, and expressed concern that it could be transferred to Child; although
Mother was provided with authorizations to get Child tested year after year,
Mother failed to obtain the testing until shortly before the May 21, 2019
hearing. Child tested negative for Hepatitis C. Exhibit OCY-4; N.T., 5/21/19,
at 8-9, 11.




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from Mother’s counsel, who indicated that he also had exhibits, including two

factual narratives prepared and signed by Mother.3 Id. at 16-17. Prior to

admitting these documents, which had not yet been provided to OCY, the Trial

Court indicated that the posture of the case was in fact that of a shelter care

hearing, pursuant to 42 Pa.C.S. § 6332 and stated, to Child’s parents, that

she was “not going to take testimony today at a shelter care hearing.”     Id.

at 18, 22.    Nevertheless, at the conclusion of the hearing, the Trial Court

admitted into evidence the exhibits offered by Mother, noting “I will admit

them as Mom’s Exhibit-1 as a pack. So at least they’ll be made part of this

record.” Id. at 30. The Trial Court thereupon signed a Shelter Care Order,

and legal and physical custody of Child was transferred to OCY. The Trial

Court made findings of fact as follows:


       [OCY] became involved with this family due to concerns of the
       family residing in the Hatfield Motel, a known residence for
       methamphetamine users. [OCY] received a report that [Child’s]
       family has been residing in the Hatfield Motel for approximately
       one year. [Mother], [Father], [m]aternal [g]randmother, and
       Child, 7 years old, all reside in the motel room. Maternal
____________________________________________


3 Mother’s exhibits included two signed factual narratives; one, entitled
“Treatment Details,” provided select facts regarding her methadone treatment
and Father’s methadone treatment. Trial Court 1925(a) opinion (Tr. Ct. Op.)
at 3. The other was entitled “Declaration of Facts,” and was described by the
Trial Court as a counter-narrative to OCY’s theory of the case. Id. The Trial
Court opined that both of Mother’s statements corroborated one another, but
also that both corroborated key elements of OCY’s case for an adjudication of
dependency. The Trial Court further noted that Mother’s counsel at the May
21, 2019 hearing strategically produced Mother’s narratives, enabling Mother
to cast the facts in a light most favorable to herself and Father but avoiding
cross-examination, which would have been to her disadvantage. Id. at 6.

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      grandmother and Child share an air mattress. Mother is employed
      as a receptionist at a car dealership. Father is not employed.
      Mother and Father are current on their rent.

       Mother and Father report living between homes and being
      homeless for the last three years. On March 6, 2019, Mother and
      Father provided urine screens.        Mother tested positive for
      amphetamines, methamphetamines, opiates, morphine, and
      methadone.         Father tested positive for amphetamines,
      methamphetamines, methadone, and marijuana. Both parents
      receive methadone from Northeast Family Center. Mother takes
      prescribe[d] Adderall, however, Father has not provided
      information regarding how he receives Adderall. Father continues
      to test positive for amphetamines. On [March 6, 2019], a Safety
      Plan was implemented, which stipulated that [m]aternal
      [g]randmother will supervise parental contact with Child. During
      after-school hours, when [m]aternal [g]randmother is working,
      Child is cared for by the hotel housekeeper.

      Child attends 1st grade at [School] in Bucks County. The school
      reports concerns of Child and her belongings strongly smelling like
      cigarette smoke. Child has missed 17 days of school, and been
      tardy 13 times this school year. Child has struggled in school, but
      has recently begun improving. Mother informed the school that
      Father is unable to help Child with schoolwork, and Mother works
      full-time. Mother was previously diagnosed with Hepatitis C.
      Child was to be tested for hepatitis C at 18 months old. On May
      8, 2019, Child was tested, and is negative for hepatitis C.
      Reportedly, Child has never had a dental examination. Child has
      been reporting that her teeth are in pain, and she has been
      observed eating only soft foods. On May 8, 2019, OCY caseworker
      met with parents.       Parents stated that they are seeking a
      residence in Bucks County. Parents were condescending, hostile
      and argumentative while discussing concerns with caseworker.
      On May 13, 2019, OCY received notice of Child Protective Services
      investigation for Bodily Injury and Neglect in regard to reports
      that Child is in pain due to her teeth, and [ ] only able to eat soft
      foods…


5/21/19 Trial Court Shelter Care Order at 2. The Trial Court found that foster

care placement was the least restrictive placement that meets the needs of



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Child, and that there was no less restrictive alternative available, in that there

are no kinship resources. Id. The Trial Court further ordered OCY to engage

in family finding, and authorized any necessary, routine, and/or emergency

medical, dental, and/or mental health treatment, evaluation, and/or testing

for Child. Id.

      The next hearing was scheduled for June 4, 2019, and designated as an

adjudication hearing.   Meanwhile, Child’s foster mother scheduled a dental

examination for Child within 48 hours of placement, and the examination

resulted in a determination that Child was in need of three tooth extractions,

two crowns, and a cavity filling.    Parents were informed, and requested a

second opinion. It was agreed that Mother would provide a list of preferred

dentists by the end of the day on May 24th, but Mother provided neither a list

nor an appointment date. June 4, 2019 Adjudication.

      At the June 4, 2019 hearing, Mother appeared with new counsel and

Father also appeared with counsel. OCY introduced an updated Statement of

Case Facts and Recommendations, a foster care medical provider form, a

hospital letter, new drug screens for Child’s parents, doctors’ notes, a school

attendance improvement plan, and the previously submitted pictures of

Child’s teeth. N.T., 6/4/19, at 4-9. Child’s GAL testified that she remained in

agreement with OCY’s recommendation for adjudication of dependency and

continued removal of Child from her parents’ custody. Id. at 13. Father’s

counsel addressed Father’s incomplete attempts to date to provide requested

prescription information regarding the drugs for which he was testing positive,

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and the Trial Court emphasized the importance of providing the requested

information.       Id. at 14-17.   Mother’s counsel then catalogued the actions

taken by Mother that he believed weighed against a determination that OCY

had made reasonable efforts prior to the removal of Child – specifically, that

Child had received a hepatitis test; Mother had made a dental appointment

for Child, although she admitted that she had no funds to pay the dentist;

Mother no longer objected to the dental procedure to be performed and now

requested only that she be permitted to be present during the oral surgery;

and Mother has provided OCY with all requested drug prescription information

and her mental health records. Id. at 20-21.            Mother’s counsel presented

argument that the main issue in terms of dependency was alleged medical

neglect, and asserted that this issue can be “hashed out” in terms of the

testimony, citing a video he was prepared to introduce that showed Child

chewing on ice, purportedly without evidence that she is in pain. Id. at 21.

He concluded by stating “that’s all I have in terms of taking testimony, I’d lay

it all out.” Id.     The Trial Court indicated that it did not need to see the video,

in light of “the avalanche of danger” to Child’s health, and determined that

OCY had met its burden. Id. at 25-26.

      Near the conclusion of the hearing, Mother’s counsel raised an objection

to the “initial documents” relating to medical issues, noting the absence of

testimony from the underlying medical providers, and indicated that he had

not seen letters that OCY was providing. Id. at 26. The Trial Court directed

OCY to provide counsel with the documents to which he referred, and indicated

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that she “did not need testimony today.” Id. at 27.           The hearing concluded

after an extended discussion of the terms of visitation for parents going

forward.

       Following    the   adjudication     hearing,   the   Trial   Court   issued   an

adjudication order finding, by clear and convincing evidence, Child to be a

Dependent Child pursuant to 42 Pa.C.S. § 6302.                      6/4/19 Order of

Adjudication. Pursuant to the Trial Court’s Order, Child was to remain in the

legal and physical custody of OCY and remain in foster care, with a stated

current placement goal to return to parent or guardian within six months. Id.

The Order specifically authorized OCY authority to consent to routine and/or

emergency medical, dental, and or mental health treatment of Child.                  Id.

Mother timely filed this appeal.4

       Mother raises the following issues for our review:

           1. Did the trial court err in adjudicating the child dependent,
           without a hearing and without permitting the presentation of
           any witnesses, testimony, or cross-examination, in violation of
           Pa. R. Juv. P. 1406(c)?

           2. Did the trial court err in considering evidence presented by
           counsel for [OCY] where there were no witnesses testifying and
           no way of authenticating that evidence?

Mother’s Brief5 at 7 (suggested answers omitted).
____________________________________________


4Mother filed a statement of errors complained of on appeal on June 18, 2019.
The Trial Court filed its 1925(a) opinion on July 15, 2019.

5 By letter dated August 1, 2019, Father’s counsel advised that participant
Father joined in Mother’s brief.


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      Initially, we note that our standard of review for dependency cases is

well-settled:

      [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 EB., 83 A.3d 426, 430-31 (Pa. Super. 2013).          Section 6302 of the

Juvenile Act defines a “dependent child,” in relevant part, as a child who 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, including evidence of the parent’s, guardian’s or other
      custodian’s use of alcohol or a controlled substance that places
      the health, safety or welfare of the child at risk.

42 Pa. C.S. § 6302(1). Proper parental care is defined as “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 A.B., 63 A.3d 345, 349 (Pa.

Super. 2013).

      Section 1406(A) of the Pennsylvania Rules of Juvenile Court Procedure

states that “[t]he court shall conduct the adjudicatory hearing in informal but

orderly manner,” and section 1406(C) states: “Evidence. Each party shall be

given the opportunity to: (1) introduce evidence; (2) present testimony; and




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(3) to cross-examine any witness.              Pa.R.J.C.P. 1406(A), (C).   (emphasis

supplied.)

       In its 1925(a) opinion, the Trial Court addressed Mother’s first issue in

this appeal: that it failed to conduct a proper adjudication hearing, by refusing

Mother her right to present witnesses, give testimony, and conduct cross-

examination.     The Trial Court acknowledged Mother’s “hearsay, foundation

and confrontation objections” to the updated Statement of Case Facts and

Recommendations offered into evidence by OCY at the adjudication hearing.

Tr. Ct. Op. at 9.      The Trial Court reasoned that those facts were largely

duplicative of those presented within the Statement of Case Facts and

Recommendations introduced into evidence at the earlier hearing on May 21,

2019. Id. The record is clear that no objection was made to the introduction

of these facts, nor to any of the other exhibits offered into evidence by OCY

at the initial hearing and made part of the record. Mother therefore cannot

now object to their admission. See Pa.R.E. 103(a)(1)(A). The Trial Court

stated “neither Mother, by counsel, nor Father, challenged the exhibits as

hearsay. Neither challenged their authenticity or demanded to confront the

eyewitnesses whose statements were recounted in the Statement of Facts.”6

Tr. Ct. Op. at 3.

____________________________________________


6 The Trial Court further noted that Mother’s former counsel did not object to
the admission of the first OCY Statement of Facts at the initial hearing, nor
did Mother’s new counsel request a rehearing on the shelter care order prior
to the June 4, 2019 hearing. Had either of these actions occurred, OCY could



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       Mother    contests     the   evidence       introduced   by   OCY   as   lacking

authentication. However, as stated, Mother failed to object to the bulk of such

evidence when introduced at the initial hearing and made part of the record.

To the extent that new evidence was introduced by OCY at the adjudication

hearing on June 4, 2019 regarding the specifics of the oral surgery required,7

Mother, by her counsel, acknowledged the need for such procedures at the

hearing and there was no longer any dispute as to the facts regarding the

dental diagnosis and required treatment. N.T., 6/4/19, at 20. The additional

information contained in the updated Statement of Case Facts and

Recommendations offered into evidence at the adjudication hearing was a

positive report from Child’s teacher post-placement regarding her interaction

with other students and increased willingness to read aloud in class; this

report was irrelevant to the adjudication of dependency, and even if

discredited on cross-examination, would have no impact on the dependency

determination.


____________________________________________


have called its case workers to testify in court, and if it proved necessary to
produce other witnesses, such as the case worker from Justice Works or the
nurse at Child’s school, OCY could have requested a continuance and produced
them. Tr. Ct. Op. at 13.

7 The updated Statement of Facts and Recommendations affirmed that the
foster mother with whom Child was placed had completed a dental
examination for Child within 48 hours of placement and, based on the results
of this examination, OCY would request a court order authorizing an oral
surgeon to extract three of Child’s teeth and install two crowns and a filling,
although Mother questioned the need for these procedures. Tr. Ct. Op. at 8.


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      At the June 4, 2019 adjudication hearing, Child’s GAL testified that she

agreed with OCY’s recommendation that Child be adjudicated dependent, with

continued removal from her parents’ custody. N.T., 6/4/19, at 13. Mother

did not seek to cross-examine Child’s GAL. Indeed, Mother did not seek to

produce any witnesses to testify at either hearing. The sole evidence offered

at the hearing was the video of Child chewing ice cubes, which counsel

explained was taken at Child’s aunt’s house a week before the May 21, 2019

hearing, where the family held an “ice cube challenge,” stating that, “[t]he kid

is chewing on ice. It doesn’t look like a kid in pain to me. So we’re contesting

that allegation [of dental neglect].” Id. at 21. We discern no harm in the

Trial Court’s decision to decline to view the video, particularly as its purpose

was to challenge the conclusion that Child was in immediate danger, and

Mother had already acknowledged at the hearing that the oral surgery was

necessary. The Trial Court stated:


      Quite frankly, the ice cubes aren’t going to – dare I use the phrase
      – make it or break it for me. I saw the photographs [of Child’s
      teeth and mouth], I saw the Statement of Case Facts. I have
      listened to argument today, I have accepted the documents to
      which reference has been made. I understand [Mother’s counsel],
      and I accept that fact that maybe you and, I assume, [Mother]
      does not admit to all the underlying facts, especially in [the
      Statement of Case Facts].

Id. at 24.

      We find no error in the manner in which the Trial Court conducted either

the adjudication-turned-shelter care hearing or the subsequent adjudication



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hearing, and further find the adjudication of dependency to be proper. The

evidence established that Child’s acute dental neglect, parents’ drug use, and

poor housing conditions prevented them from being able to safely care for

Child, and the removal of Child from parental care was properly based on their

present inability. Counsel waived any argument regarding the admissibility of

OCY documents made part of the record during the initial hearing; moveover,

Mother’s narrative, submitted as an exhibit at the initial hearing, actually

corroborated key elements of OCY’s case for an adjudication of dependency.

Mother was given the opportunity, but neither requested to provide testimony

nor offered to present witnesses, and we find no error in the Trial Court’s

decision not to consider the proffered video. Accordingly, we affirm the order

of the Trial Court.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




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