J-A13017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: N.S., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.B., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2980 EDA 2019

              Appeal from the Order Entered September 20, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-DP-0000514-2012


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                  Filed: June 25, 2020

        S.B. (Mother) appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, removing her minor daughter, N.S. (born 9/06),

from her custody, and committing N.S. to the care of the Philadelphia

Department of Human Services (DHS), pursuant to section 6351 of the

Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375. After careful review, we reverse.

        N.S. has a significant mental health history and a history of physical and

verbal aggression. N.S. began mental health treatment in 2010, when she

was four years old. At that time, N.S. was diagnosed with Oppositional Defiant

Disorder (ODD).       When N.S. was seven years old, she was hospitalized at

Horsham Hospital and diagnosed with Attention Deficit Disorder (ADD).

Thereafter, N.S. was admitted to Horsham Acute Partial Program, and she was

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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diagnosed with a disruptive behavior disorder. N.S. has also been diagnosed

with insulin-dependent diabetes mellitus.

       On March 24, 2015, the court adjudicated N.S. dependent pursuant to

section 6302(1) of the Juvenile Act. 42 Pa.C.S.A. §§ 6302(1).1 N.S. remained

in Mother’s custody under court and DHS supervision.          N.S. attended a

specialized private school where she received services, and she participated

in individual and family therapy.

       From May 21, 2016 through June 19, 2016, and again from June 20,

2016 through July 26, 2016, Mother placed N.S. in Fairmount Behavioral

Hospital, a residential treatment facility, to address her mental health needs.

At the August 4, 2016 permanency review hearing, the court noted this. N.S.

was discharged on January 31, 2017.

       At a permanency review hearing on December 5, 2017, the court found

N.S. continued to receive services, but also continued to exhibit behavioral

issues at school. At the February 16, 2018 permanency review hearing, the

court found N.S. had accrued approximately 40 incident reports during the

2017-2018 school year.             On June 4, 2018, N.S.’s therapy provider

recommended placement in a residential treatment facility. On July 19, 2018,
____________________________________________


1 The dependency petition alleged that N.S. was diagnosed with attention
deficit hyperactivity disorder (ADHD), posttraumatic stress disorder (PTSD),
and dissociative disorder, that she was not taking any prescribed medications,
that she was receiving therapeutic services at the Joseph J. Peters Institute to
address a past sexual trauma, and that Mother had used physical punishment
to discipline her. DHS implemented in-home protective services, but Mother
requested additional assistance due to her difficulty managing N.S.’s
behaviors. Dependency Petition, 2/5/15.

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Mother placed N.S. in Belmont Behavioral Health Hospital (Belmont) on a

voluntary admission.

      In August 2018, N.S.’s treating psychiatrist at Belmont recommended

N.S. be referred to a residential treatment facility that could address her

mental health needs as well as her medical needs. N.S. was not compliant

with her diet or medication plan to control her diabetes. Several facilities,

both in-state and out-of-state, declined to accept N.S. for treatment, and so

she remained at Belmont.

      At the August 17, 2018 permanency review hearing, the court found

that N.S. remained hospitalized at Belmont on a voluntary admission. The

court ordered Mother to participate in a parenting capacity evaluation. The

court also ordered DHS to obtain an order of protective custody if Mother

attempted to have N.S. discharged from Belmont against medical advice.

      In January 2019, because an appropriate residential treatment facility

remained unavailable, N.S.’s attending psychiatrist and clinical team began

discharge planning rather than keeping N.S. hospitalized indefinitely. Mother

agreed to work with family-based services, which included in-home family

therapy, family education and skill building, 24/7 crisis intervention services,

and medication management. Mother also agreed to high fidelity wraparound

services, which includes a parent-support partner, who has personal

experience raising a child with complex emotional needs, a youth-support

partner, who is a young person with previous personal experience with




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behavioral health challenges, as well as a coach and facilitators who help the

family and youth develop a plan to achieve shared goals.

      Belmont continued to work with N.S. and Mother, and Belmont reported

that both N.S. and Mother were receptive to the intensive support services

and that they actively engaged in them.       At a July 12, 2019 permanency

review hearing, the court ordered DHS to obtain an order of protective custody

to place N.S. in treatment-level foster care upon discharge from Belmont if

DHS could find a foster home willing to accept her; the court also ordered DHS

to explore the availability of out-of-state residential treatment centers.

      In September 2019, N.S.’s treatment team at Belmont met with Mother

and Community Behavioral Health (CBH) to discuss viable options for N.S. In

the addendum to N.S.’s Interim Psychiatric Evaluation, N.S.’s attending

psychiatrist, Chioma Iheagwara, D.O., noted:

      Due to her history of aggression, eloping from approved private
      school, poor medication adherence, issues with communicating
      effectively with adults and family[,] the treatment team met with
      [M]other and CBH. Mother and Belmont are in agreement and
      recommend residential treatment for further stabilization in a
      structured setting. Treatment foster care is not recommended
      given her current behaviors.

Interim Psychiatric Evaluation, June 2019-September 2019 Addendum, at 20

(electronically signed on 9/13/2019) (emphasis added).

      On September 20, 2019, the court held a permanency review hearing

to determine whether N.S. should remain in Mother’s custody.           N.S was

thirteen years old at the time. At that hearing, DHS argued that the court



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should remove N.S from Mother’s custody and place her in DHS custody.2

DHS maintained that N.S. required total immersion in mental health services


____________________________________________


2 Regarding the disposition of a dependent child, section 6351(b) of the
Juvenile Act provides:

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

          (1) that continuation of the child in his home would be
          contrary to the welfare, safety or health of the child; and

          (2) whether reasonable efforts were made prior to the
          placement of the child to prevent or eliminate the need for
          removal of the child from his home, if the child has remained
          in his home pending such disposition; or

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

          (4) if the court has previously determined pursuant to
          section 6332 (relating to informal hearing) that reasonable
          efforts were not made to prevent the initial removal of the
          child from his home, whether reasonable efforts are under
          way to make it possible for the child to return home; and

          (5) if the child has a sibling who is subject to removal from
          his home, whether reasonable efforts were made prior to
          the placement of the child to place the siblings together or
          whether such joint placement is contrary to the safety or
          well-being of the child or sibling.


42 Pa.C.S. § 6351(b)(1)-(5). Further, section 6351(e) provides in pertinent
part:

       (e) Permanency hearings.—




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in order for treatment to be successful, and that if Mother retained custody

she could remove N.S. from the residential treatment facility at any time.

Additionally, DHS stated that Mother had failed to complete her court-ordered

Parental Capacity Evaluation (PCE), had ceased communicating with DHS on

a regular basis, and had stopped visiting N.S.   See N.T. Permanency Review

Hearing, 9/20/19, at 1-10.

       Following a permanency hearing, the transcript of which amounts to ten

pages, the court determined there was clear and convincing evidence to

____________________________________________


          (1) [t]he court shall conduct a permanency hearing for the
          purpose of determining or reviewing the permanency plan
          of the child, the date by which the goal of permanency for
          the child might be achieved and whether placement
          continues to be best suited to the safety, protection and
          physical, mental and moral welfare of the child. In any
          permanency hearing held with respect to the child, the court
          shall consult with the child regarding the child’s permanency
          plan in a manner appropriate to the child’s age and
          maturity....

          (2) If the county agency or the child’s attorney alleges the
          existence of aggravated circumstances and the court
          determines that the child has been adjudicated dependent,
          the court shall then determine if aggravated circumstances
          exist. If the court finds from clear and convincing evidence
          that aggravated circumstances exist, the court shall
          determine whether or not reasonable efforts to prevent or
          eliminate the need for removing the child from the child’s
          parent, guardian or custodian or to preserve and reunify the
          family shall be made or continue to be made and schedule
          a hearing as provided in paragraph (3).

42 Pa.C.S.A. § 6351(e).




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establish “clear necessity” for the removal of N.S. from Mother’s custody and

for her placement in a residential treatment facility. See In re A.L., 779 A.2d

1172, 1175 (Pa. Super. 2001) (following adjudication of dependency, child

may not be removed from care of a parent absent showing of clear necessity

for removal, namely, where welfare of child requires it).3 That same day, the

court entered an order placing N.S. in the custody of DHS, see Permanency

Review Order, 9/20/19, and N.S. remained hospitalized at Belmont.

       On October 4, 2019, Mother filed a motion for reconsideration. Mother

argued the court had no basis for concluding removal from Mother’s legal

custody was “clearly necessary.” Motion for Reconsideration 10/4/19, at 2.

On November 4, 2019, the court entered an order granting a rule to show

cause why Mother’s motion should not be granted and scheduled a rule

returnable hearing for November 14, 2019.        See Order, 11/4/19.    In the

interim, however, on October 21, 2019, Mother filed a timely notice of appeal.

On November 14, 2019, the court entered an order, which provides, in part:

“Motion is denied as the court has lost jurisdiction.” Status Review Order,

11/14/19. See 42 Pa.C.S.A. § 5505 (Modification of Orders). Both Mother

and the trial court complied with Pa.R.A.P. 1925.4
____________________________________________


3  When the trial court removes a child from his or her home, our Rules of
Juvenile Court Procedure provide that the court must determine whether “the
child’s placement is the least restrictive placement that meets the needs of
the child, supported by reasons why there are no less restrictive alternatives
available[.]” Pa.R.J.C.P. 1242(C)(3)(c); see also Pa.R.J.C.P. 1514(A)(2).

4The guardian ad litem on behalf of N.S. joined in the brief filed by the City
Solicitor’s Office for DHS.

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      Mother raises one issue for our review: “Did the trial court err as a

matter of law and abuse its discretion by removing N.S. from Mother’s custody

in the absence of clear and convincing evidence that removal was clearly

necessary?”     Appellant’s Brief, at 3.     Mother does not challenge the

adjudication of dependency; rather, she claims DHS did not meet its burden

of proof, and therefore, the court’s finding of clear necessity for removal is not

supported in the record.    Based on our review of the record before us, in

particular, the notes of testimony from the September 20, 2019 permanency

review hearing, we agree the evidence was insufficient to support the trial

court’s placement of N.S. in the physical custody of DHS.

       When reviewing a dependency case, we accept the trial court’s findings

of fact and credibility determinations that are supported in the record.

However, we are not required to accept the court’s inferences or conclusions

of law. In re R.J.T., 9 A.2d 1179, 1190 (Pa. 2010). We review for abuse of

discretion. In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

      In In re D.A., A Minor, 801 A.2d 614 (Pa. Super. 2002) (en banc), we

explained:

      If the court finds that the child is dependent, then the court may
      make an appropriate disposition of the child to protect the child’s
      physical, mental and moral welfare, including allowing the child to
      remain with the parents subject to supervision, transferring
      temporary legal custody to a relative or a private or public agency,
      or transferring custody to the juvenile court of another state. 42
      Pa.C.S. § 6351(a).




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Id. at 617 (citation omitted). See In re M.L., 757 A.2d 849, 850–51 (Pa.

2000). However, even after a child has been adjudicated dependent, a court

may not separate that child from his or her parent unless it finds that the

separation is clearly necessary. 42 Pa.C.S.A. § 6301(b)(3); In re G.T., 845

A.2d 870 (Pa. Super. 2004). “‘Such necessity is implicated where the welfare

of the child demands that he [or she] be taken from his [or her] parents’

custody.’”   Id. at 873 (citations omitted) (alterations in original). Clear

necessity is established when the court determines that alternatives are not

feasible. A.N. v. A.N., 39 A.3d 326 (Pa. Super. 2012). After review, we do

not find DHS established clear necessity for removal.

      At the September 20, 2019 hearing, Mother was unavailable due to

medical issues, but she was represented by counsel. N.T. Permanency Review

Hearing, supra at 2.   At the time of the hearing, N.S. remained hospitalized

at Belmont, and Belmont’s psychiatric evaluation of September 13, 2019, as

indicated above, recommended residential treatment for N.S. See Interim

Psychiatric Evaluation, June 2019-September 2019 Addendum, supra at 20.

Mother agreed with this recommendation. See id. At the hearing, counsel

for Mother stated:

      Ms. Buck: Your Honor, my client is in agreement with [residential
      treatment facility] placement. And as CBH has approved the
      placement there’s no need for a commit for her to be able to go
      to RTF placement.

      The Court: Okay.




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      Ms. Buck: It could be just a mental health placement, so I ask
      that the order be [DHS] supervision to stand, and that [N.S.] can
      go to RTF when placement is located[.]

N.T. Permanency Review Hearing, supra at 8. Counsel for DHS argued as

follows:

      Ms. Pontious: And, Your Honor, I would be asking for the commit,
      the reason being that Your Honor had previously ordered once she
      was ready for discharge for us to get an [order for protective
      custody] due to the issues of mom. The issue is that if she’s in an
      RTF, [Mother] still retains legal custody as opposed to the
      department. She can sign her out if she wants, and there’s as you
      know, Your Honor, the history of this case there’s a lot of issues.

      The Court:    I’ll commit the child.

Id. at 9.

      We agree, “there’s a lot of issues” in this case.      N.S. has multiple

psychiatric diagnoses, poorly controlled verbal and physical aggression

impulses, and a history of noncompliance managing her diabetes, as well as

a history of defiant and sexualized behavior and running away from home.

None of this, however, supports a finding that it is clearly necessary to remove

N.S. from Mother’s custody, especially where Mother agrees that N.S. requires

placement in a residential treatment facility, has other young children at

home, and has been supportive and consistently engaged in N.S.’s treatment

throughout, as noted extensively in the record by the attending psychiatrists.

See N.T. Permanency Review Hearing, supra at 8 (“Your Honor, my client is

in agreement with RTF [residential treatment facility] placement.”); Belmont

Interim Psychiatric Evaluation, June 2019-September 2019 Addendum, at 20



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(“Mother and Belmont are in agreement and recommend residential treatment

for further stabilization in a structured setting.”); see also Belmont Interim

Psychiatric Evaluation, supra, December 2018 Addendum, Steve Cartun, M.D.

(“[M]other . . . has been pretty actively involved during [N.S.’s] stay here.”);

January 2019 Addendum, Chioma Iheagwara, D.O.            (“The treatment team

continued to work with [N.S.], her mother, her stepfather and her clinical

team. Mother continued to be an advocate for her daughter and supports the

team’s efforts in health maintenance.”); June-September 2019 Addendum,

Chioma Iheagwara, D.O. (“Mother would join with the team in stressing the

importance of following unit rules.”); Comprehensive Behavioral Psychiatric

Evaluation, 12/19/17, Roomana M. Sheikh, M.D. (“[N.S.’s] mother is very

involved and a strong advocate for her daughter.”).

        In August 2018, Mother supported Belmont’s recommendation that N.S.

enter a residential treatment facility, but no facility would accept N.S. at that

time.    Doctor Iheagwara noted, “[M]other loves her child and is open to

significant supports to maintain [N.S.] in the community.”     Belmont Interim

Psychiatric Evaluation, January 2019 Addendum, Chioma Iheagwara, D.O., at

15-16.    These “significant supports” included family based services, high-

fidelity wraparound services, in-home nursing support and medical case

management.      From all accounts, it appears that Mother has followed and

supported the treatment teams’ recommendation.         There was no evidence

presented at the hearing that indicated Mother is a barrier to N.S.’s treatment.




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       In its opinion, the trial court relies on brief testimony from the

Community Umbrella Agency caseworker, Tracy McNair, who stated that

Mother had not completed her parenting capacity evaluation or contacted

McNair since the last court date.5 N.T. Permanency Review Hearing, supra at

6.   Notably, there was no indication at that hearing that Mother’s lack of

communication with McNair presented an obstacle to N.S.’s treatment or the

clear goal of placement in an appropriate residential treatment facility.

Significantly, there was no evidence that Mother was incapable or unwilling to

consent to N.S.’s admission into residential treatment. See A.N., supra at

330 (“It is this Court’s responsibility to ensure that the record represents a

comprehensive inquiry and that the hearing judge has applied the appropriate

legal principles to that record.”).

       Based on our review, we agree with Mother’s argument that DHS

presented no evidence that established Mother’s exercise of her legal custody

rights was detrimental to N.S.’s welfare and that its argument that Mother

might remove N.S. from residential treatment was unfounded.          Notably,

Mother has not sought to remove N.S. against medical advice, instead


____________________________________________


5 In the Belmont Interim Psychiatric Evaluation, Dr. Iheagwara noted there
was a period of approximately three weeks when the clinical team was unable
to reach Mother. Doctor Iheagwara stated, “Mother reports that her phone
was misplaced with all of her contacts and she had to obtain a new phone.
Once communication was reestablished Mother was more consistent in
communicating with the treatment team as well as with her daughter.”
Belmont Interim Psychiatric Evaluation, June-September 2019 Addendum,
supra at 20.

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following the treatment recommendations from Belmont staff since the start

of N.S.’s hospitalization.

      We find nothing in the record that indicates anything other than that

Mother has been supportive and encouraging of the treatment team’s

recommendations, in particular, residential treatment.             Further, there is

nothing in the record that indicates Mother is opposed to agency supervision

or N.S.’s “total immersion in mental health services[.]             See Trial Court

Opinion, 1/9/20, at 3.       Neither the 10-page transcript of the Permanency

Review   Hearing,    nor     the   trial   court’s   3-page   opinion,   exhibits   the

comprehensive inquiry required in a removal case, or explains why removal

of N.S. from Mother’s custody promotes N.S.’s best interests or welfare. See

In re R.W.J., 826 A.2d 10, 12 (Pa. Super. 2003); In re G.T., supra at 873;

see also Interest of S. M. S., 424 A.2d 1365, 1369 (Pa. Super. 1981)

(hearing judge should conduct comprehensive inquiry and support decision in

opinion discussing and analyzing evidence fully).

      Where the record indicates Mother has supported and advocated for her

daughter’s mental and physical health, and Mother is in agreement with the

treatment team’s and DHS’ recommendation for residential treatment and the

agency’s protective supervision, we are unable to accept the court’s conclusion

that DHS has established by clear and convincing evidence that removal is

“clearly necessary.” Id.      Mother’s failure to complete her parenting capacity

evaluation and the court’s recognition that it is possible that Mother could

remove N.S. from treatment “at any time[,]” without more, is insufficient to

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establish a “clear necessity” for removal from Mother’s custody. Id. The trial

court’s findings are not supported by the record, and thus N.S.’s health,

safety, and welfare does not mandate removal of custody from Mother.

     We encourage Mother to continue her steadfast support and to continue

to work with the agency. We recognize, as the treatment team does, that

Mother is an integral part of her daughter’s mental and physical health

management.

     Order reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/20




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