J-S10029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


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

APPEAL OF: G.S., FATHER                           No. 2582 EDA 2014


                Appeal from the Order entered July 22, 2014,
        in the Court of Common Pleas of Philadelphia County, Family
                   Court, at No: CP-51-DP-0001440-2014

BEFORE: GANTMAN, P.J., STABILE, and PLATT*, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2015

      I agree with the Majority that the trial court did not abuse its

discretion in adjudicating Child dependent pursuant to 42 Pa.C.S.A. § 6302,

and in removing her from Father’s home and committing her to DHS.

Further, I agree with the Majority that the trial court had authority under 42

Pa.C.S.A. § 6339(b) to permit DHS to consent to medical care and mental

health treatment for Child, and that Father’s issue regarding whether the

trial court must order an interstate compact for Arkansas is moot. However,

because I cannot conclude that there is a compelling state interest in

ordering Father to undergo a psychological evaluation upon pain of fine

and/or imprisonment for contempt of court, and because I believe that the

trial court erred in placing within the discretion of Child the constitutionally

protected interest of Father to visitation, I respectfully dissent.




* Former Senior Judge specially assigned to the Superior Court.
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     We analyze whether, under the circumstances of this case, the trial

court could order Father to undergo a psychological evaluation upon pain of

fine and/or imprisonment for contempt of court1 pursuant to Article 1

Section 1 of the Pennsylvania Constitution, which provides:

     Inherent rights of mankind         All men are born equally free
     and independent, and have certain inherent and indefeasible
     rights, among which are those of enjoying and defending life and
     liberty, of acquiring, possessing and protecting property and
     reputation, and of pursuing their own happiness.

     Pa. Const. Art. 1, § 1. However:

     Although the right to privacy is of constitutional dimension, it is
     not unqualified. Privacy claims must be balanced against state
     interests. Our test of whether an individual may be compelled to
     disclose private matters, as we stated it in Denoncourt [v.
     Commonwealth State Ethics Commission, 470 A.2d 945 (Pa.
     1983),] is that “government’s intrusion into a person’s private
     affairs is constitutionally justified when the government interest
     is significant and there is no alternate reasonable method of
     lesser intrusiveness to accomplish the governmental purpose.”
     [Id.] at 949. More recently, we have stated the test in terms of
     whether there is a compelling state interest.        Stenger [v.
     Lehigh Valley Hospital Center, 609 A.2d 796, 802 (Pa.
     1992)]. In reality, the two tests are not distinct. There must be
     both a compelling, i.e., “significant” state interest and no
     alternate reasonable method of lesser intrusiveness.

In re D.S., 102 A.3d 486, 489-490 (Pa. Super. 2014) (citing In re T.R.,

731 A.2d 1276, 1280 (Pa. 1999) (plurality)).



1
   At the conclusion of the subject adjudication hearing, the trial court
ordered Father to undergo a psychological evaluation and stated to Father
on the record in open court, in part: “Should you fail to follow my
instructions, you may be held in contempt. Contempt in this courtroom is
either $1000.00 fine and/or six months in jail. The choice is yours.” N.T.,
7/22/14, at 109.
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      Instantly, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court

stated that it ordered the psychological evaluation of Father at the outset of

the case to “aid in expediting permanency for the Child.”              Trial Court

Opinion, 9/12/14, at 15. Similarly, the trial court in T.R., supra, ordered

the psychological evaluation of the mother and the release of the results to

interested parties so as “to effect the proper placement of the child and to

keep families together.” T.R., 731 A.2d at 1278.

     The T.R. Court disagreed with a panel of this Court that the

psychological   evaluation   was   the   least   restrictive   means   to   obtain

information about the mother’s parenting ability.         The Court explained,

“where, as here, there is an abundance of information about the ability of

the parent to be a parent, there is no state interest, much less a compelling

state interest, in the ordering of parental psychological examinations.” T.R.,

731 A.2d at 1281.     Under the circumstances of this case, I find the T.R.

Court’s plurality decision persuasive.

      The Majority distinguishes T.R. on the basis that the trial court had the

benefit in that case of “more than two years’ observation of the mother’s

ability to parent. . . .” Majority Memorandum at 10. In this case, the trial

court ordered Father to submit to a psychological examination at the outset

of the case, upon adjudicating Child dependent.                Thus, the Majority

concludes that, unlike T.R., “the record before us does not contain an




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abundance of information about Father’s ability to parent Child.”              Id.

(emphasis in original). I disagree.

     Specifically, the T.R. Court noted that DHS in that case correctly argued

that, “there was something terribly wrong with the mother’s ability to

parent.”      T.R., 731 A.2d at 1281.        The Court stated that, “even the

department agrees that there is an abundance of information in the case

about whether the children are being cared for properly and whether

the mother is a fit parent.” Id. (emphasis added).

      Likewise, in this case, I would conclude that there is an abundance of

information to demonstrate whether Child is being cared for properly and

whether Father is a fit parent. Indeed, the testimonial evidence of record

supports the court’s dependency adjudication of Child and, further, supports

the court’s removal of Child from Father’s home and commitment to the

custody of DHS. Significantly, I note that, similar to this case, the trial court

in T.R. committed the subject children to the custody of DHS on testimonial

evidence   independent    of   the    results   of   the   mother’s   psychological

evaluation.

     Here, as noted by the Majority, there was testimonial evidence at the

shelter care hearing and the dependency hearing involving the deplorable

conditions in Father’s home and in paternal aunt’s home, deemed unfit by

the trial court. However, there was also testimonial evidence supporting the




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court’s conclusion that Child had unaddressed mental health issues.       The

trial court explained,

      Specifically, Ms. Williams-Mitchum stated that the Child had been
      diagnosed with schizophrenia and a psychiatric disorder.[2] Ms.
      Williams-Mitchum observed first-hand the Child talking to herself
      extensively and pacing back and forth. Father admitted that he
      was aware of the fact that the Child talks to herself. When
      Father was questioned about this, Father stated that he believed
      that this behavior was normal for a thirteen-year[-]old child who
      does not have a mother or siblings and is living in a fantasy
      world. The Court was disturbed by this and was concerned
      about the Child’s unaddressed mental health needs. The Court
      stated on the record:

          More so, the Court finds to be disturbing, the fact that
          [Father has] indicated that the child, in his own words, is
          a motherless child who actually has no other friends to
          associate with[,] and this is his reason for allowing the
          fantasy[,] to encourage his child to live in a fantasy. The
          Court doesn’t need to be a mental health advisor to
          understand that that’s incorrect, that’s wrong. [. . .]
          [I]t’s obvious [. . .] to the Court, that child needs to be
          helped to seek mental health attention. [N.T., 7/22/14,]
          at 102-03.

      Furthermore, Father, by his own admission, did not follow-up on
      setting up an appointment with a doctor for the Child, despite
      telling the Child’s school that he would make an appointment.
      This raised concerns to the Court about Father’s ability to
      properly address the Child’s mental health needs.

Trial Court Opinion, 9/12/14, at 11-12.

      Therefore, I conclude that, in this case, there was an abundance of

information about Father’s ability to parent Child. Specifically, the evidence

is clear and convincing that Child is dependent and her removal from

2
  Pursuant to the shelter care order, Child participated in a psychological
evaluation, which occurred prior to the adjudication hearing.       Order,
6/26/14; see also N.T., 7/22/14, at 18.
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Father’s custody necessary for her well-being.    As such, I believe that the

trial court’s order requiring Father to undergo a psychological evaluation at

the outset of the dependency case, rather than at a later time as in T.R., is

a distinction without significance.

        For the same reasons, I disagree with the Majority distinguishing T.R.

based on the trial court’s concern about Father’s mental health, when

nothing suggested that the mother in T.R. suffered from diagnosed mental

health issues. See Trial Court Opinion, 9/12/14, at 13. Like the Majority, I

defer to the findings of the trial court regarding Father’s mental health that

DHS’s witnesses were credible and Father’s testimony largely incredible.3

Nevertheless, the record contains an abundance of information that Child is

not being cared for properly, and that Father is not a fit parent. See In re

K.D., 744 A.2d 760, 761 (Pa. Super. 1999) (concluding that “[a] mere

allegation that [the mother] has been taking medication for a mental

condition and passed out on one occasion as a result of the medication is


3
    The trial court stated, in part:

        At the adjudicatory hearing, the Court was presented with
        testimony that Father had received mental health services in the
        past and was previously hospitalized for mental health
        treatment.   Ms. Williams-Mitchum expressed that she had
        concerns about Father’s mental health based upon her own
        interactions with Father.    Further, Father testified at the
        adjudicatory hearing, so the Court observed Father first-hand
        and had concerns about Father’s mental health. . . .

Trial Court Opinion, 9/12/14, at 13.


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insufficient, in our minds, to force upon her an unwanted psychological

evaluation.”).

      Under the circumstances of this case, I find the reasoning of the T.R.

Court’s plurality decision persuasive, as follows:

      The real issue in the case, then, is not so much whether the
      children should be removed, as whether the mother should be
      protected from her own assertion of a constitutional right
      because the assertion of that right may impede the efforts of the
      courts to return the children to her care. Citing the legislative
      goal of keeping the family together, the department would
      require the psychological examination.

      We regard such a concern as well intentioned, but misplaced.
      Compelling a psychological examination in this context is nothing
      more or less than social engineering in derogation of
      constitutional rights, and where, as here, there is an abundance
      of information about the ability of the parent to be a parent,
      there is no state interest, much less a compelling state interest,
      in the ordering of parental psychological examinations. In fact,
      we find such state intervention frightening in its Orwellian
      aspect. It is one thing for the mother to agree to psychological
      evaluation and to voluntarily undergo instruction in self-
      improvement, but it is quite another for the state, in the exercise
      of paternalistic might, to order a psychological evaluation in
      violation of the mother’s constitutional rights, presumably upon
      pain of imprisonment for contempt of court. . . .

T.R., 731 A.2d at 1281.      Like in T.R., where the evidence in this case

supports Child’s commitment to the custody of DHS, I would conclude that,

“there is no state interest, much less a compelling state interest,” in the

ordering of Father’s psychological evaluation under risk of fine and/or

imprisonment for contempt. Id.

      With respect to the Majority’s concern for the proper placement of

Child, the T.R. Court next explained,

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      The mother, alas, may be her own worst enemy and her
      shortcomings as a parent may result in the permanent removal
      of her children; nonetheless, the mother remains a free person,
      and her power to assert her constitutional right to privacy is not
      diminished merely because the representatives of the state think
      it is ill advised.

Id.

      Indeed, the T.R. Court, and subsequent dispositions by this Court,

recognized a trial court may consider a parent’s refusal to comply with

mental health recommendations in determining a child’s placement. See In

re J.Y., 754 A.2d 5, 9 (Pa. Super. 2000) (concluding that, “T.R. stands for

the proposition that the court may not, under certain circumstances, invade

an individual’s privacy rights by ordering a psychological evaluation and

revealing its results; however, the court may take into consideration a

parent’s refusal to follow its treatment recommendation”); see also D.S.,

supra at 491 (citation omitted) (emphasis omitted) (stating that, “there

would have been no impediment to the trial court’s recommendation that

[the f]ather seek treatment, and if [the f]ather opted to forgo that

treatment, his refusal could have been considered by the trial court in D.S.’s

placement. However, we cannot conclude that there was a compelling state

interest in ordering the evaluation and directing [the f]ather to comply with

recommendations made by [the mental health evaluator] in this case”).

Because the record supports Child’s dependency adjudication and her

removal from Father’s custody, I would reverse that portion of the order



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requiring Father to undergo a psychological evaluation upon pain of fine

and/or imprisonment for contempt of court.

      With respect to Father’s final issue regarding whether the trial court

erroneously restricted his visitation with Child, the foster care agency

caseworker testified that Child has had no visits with Father because Child

“has stated to the foster parent that she currently does not want to visit the

father at this time.” N.T., 7/22/14, at 69. Further, Child has not explained

why she does not want to visit with Father. Id. As such, I would conclude

that the order, in effect, denied Father visitation with Child, and did so

improperly as the record is devoid of any evidence that visitation with Father

would pose a “grave threat” to Child. See Lewis v. Lewis, 414 A.2d 375,

376 (Pa. Super. 1979) (citations omitted) (stating that, “[a] parent is rarely

denied the right to visit a legitimate child.   Visitation has been limited or

denied only where the parent has been shown to suffer from severe mental

or moral deficiencies that constitute a grave threat to the child. Visitation

has even been allowed to parents whose children do not want to see them”).

      In rejecting Father’s argument, the Majority finds significant that the

court’s decision to place visitation at Child’s discretion is temporary, pending

a report from Child’s psychologist.     Specifically, at the conclusion of the

adjudication hearing, the trial court stated on the record in open court as

follows:

      The child is order[ed] to continue with her psychological care. I
      will wait to receive a report from the psychologist whether or not

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        . . . it’s in the child’s best interest to have visitation with dad.
        Until I receive that report visitation will remain at the child’s
        discretion and then should she decide on visitation they will be
        therapeutic supervised visits only.

N.T., 7/22/14, at 105-106.

        The Majority relies on In re Damon B., 460 A.2d 1196 (Pa. Super.

1983), wherein a panel of this Court affirmed an order temporarily reducing

the mother’s visitation with her dependent child from twice per month to

four times per year. In that case, we noted that the order was “limited in

time by the review hearing scheduled within the next seven months.” Id. at

1198.

        In Damon B., we concluded that the “grave threat” standard applied

as the goal remained reunification. We further concluded that the trial court

erred in reducing visitation even though it found that the mother had no

severe mental or moral deficiencies that would constitute a grave threat to

the child.   However, we stated that, 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.”        Id. (emphasis in

original) (citations omitted). As such, in Damon B., we affirmed the order

based on the testimonial evidence of two clinical psychologists that the visits

were counterproductive to the child’s development of any bond with his

mother, and that the visits created stress for the child, including nightmares,

enuresis, irrational fear of his mother, and expressions of rage in the child’s

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behavior. See id. at 1197-1198. We expressly stated that, “our decision is

influenced by the fact that this is a temporary reduction in visits rather than

a long-term cessation of visits.” Id. at 1198 n.1.

      Similarly, in In re C.J., 729 A.2d 89 (Pa. Super. 1999), this Court was

presented with another rare case of an order restricting the parents’

visitation that was temporary and the trial court incorrectly applying a “best

interest” standard rather than the “grave threat” standard. In that case, we

relied, in part, on Damon B., supra, in affirming the order of the trial court

declining to order visitation at the parents’ respective state correctional

institutions (“SCI”) and ordering visitation to occur once every six months at

the Armstrong County prison, when the parents would be transported to the

area for dependency review hearings.          In In re C.J., we concluded as

follows:

      [I]t is clear that, given the two visitation locations available, one
      of them is unacceptable; extreme stress would occur if the
      children were to be ordered to visit the parents in their SCI
      locations, and this would amount to a grave threat to them.
      There is ample evidence to this effect, as well as a fully
      supported finding by the trial court. We, therefore, affirm the
      portion of the order regarding transportation to the parents’ SCI
      locations.

      We have before us no finding [by the trial court] under either the
      “grave threat” or the “best interest” standard regarding visitation
      in the Armstrong County prison. Nonetheless, there is ample
      evidence of record for us to find that supervised visitation in that
      location would not pose a grave threat to the children. . . .

C.J., 729 A.2d at 96.



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      In stark contrast to Damon B. and C.J., in the present case, there is

no evidence in the record before us that Father is unfit to associate in a

supervised capacity with Child or that there is any severe adverse effect

upon Child. Indeed, the trial court made no findings in this regard. Upon a

review of the transcript, it appears DHS and the trial court did not have

cognizance of the need to consider the constitutionally protected interest of

Father to visitation. While it is conceivable that, under the circumstances of

this case, visitation with Father may pose a “grave threat” to Child’s well-

being, DHS failed to introduce any evidence to demonstrate this. Therefore,

I disagree with the Majority that Damon B., supra, is controlling in this

case. As such, I would reverse that part of the order providing for Father to

have therapeutic supervised visits at Child’s discretion and remand this

matter to the trial court to fashion a new order granting Father appropriate

visitation pending receipt of a report from Child’s psychologist, at which time

the trial court could revisit the issue.




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