J-S81011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: R.H., A            :   IN THE SUPERIOR COURT OF
    MINOR                                  :        PENNSYLVANIA
                                           :
                                           :
                                           :
                                           :
                                           :
                                           :
    APPEAL OF: C.R.H., MOTHER              :   No. 1459 MDA 2018

         Appeal from the Dispositional Order Entered August 23, 2018
            In the Court of Common Pleas of Cumberland County
              Juvenile Division at No: CP-21-DP-0000062-2017

BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 25, 2019

       C.R.H. (“Mother”) appeals from the dispositional order entered August

23, 2018, in the dependency case involving her daughter, R.H. (“Child”), born

in May 2003.1 After careful review, we affirm.

       The trial court summarized the relevant factual and procedural history

of this matter as follows, in relevant part.




* Former Justice specially assigned to the Superior Court.

1 Mother indicates in her notice of appeal and in her brief that she is appealing
from the order adjudicating Child dependent, which the trial court entered on
August 9, 2018. It is important to note that the final appealable order in this
matter is the dispositional order. See In re Tameka M., 534 A.2d 782, 784
(Pa. Super. 1987), affirmed, 580 A.3d 750 (Pa. 1990) (“An appeal cannot be
taken from a dependency determination; instead, an aggrieved party must
wait until an order of disposition is entered.”). Nonetheless, because a final
appealable order exists, and because we discern no prejudice stemming from
Mother’s procedural misstep, we may proceed to review the merits of this
appeal.
J-S81011-18


     . . . [Child] has struggled with Anorexia Nervosa since age nine.
     [Cumberland County Children and Youth Services (“CYS”)] has
     been involved since 2015. Since early 2016, the child has been
     in and out of hospitals and treatment facilities. The child was
     previously adjudicated dependent in July 2017 due to her mother’s
     inability to control her behaviors. Dependency was terminated on
     October 18, 2017, since the child was receiving appropriate
     treatment in an eating disorder facility.

           [Child] is currently a fifteen-year-old juvenile in need of
     treatment and strict supervision to prevent her health from
     deteriorating. [Child’s] condition is uncontrolled and very severe.
     At the time of the hearing, the child was inpatient at the Children’s
     Hospital of Philadelphia (“CHOP”) and [CYS] sought emergency
     custody because of hospital staff’s concerns that she was at
     serious physical risk if she left the hospital with her mother. While
     in Mother’s care the child uses drugs (including marijuana, LSD,
     “Molly” and prescription pills), alcohol, self-harms, and is
     physically assaultive. The child refuses to follow a dietary plan to
     keep her weight at a healthy level if not closely supervised. The
     child is extremely aggressive, frequently requiring medication,
     physical restraints, and additional clinical and security staff to
     keep her under control. She is currently under a consent decree
     for assault against another juvenile, and there have been assaults
     and attempted assaults against others for which she has not been
     criminally charged. She has several currently pending serious
     charges for assaulting various hospital staff. . . .

           The child is poorly managed at home. When [Child] is in
     her [m]other’s care, her health deteriorates rapidly and seriously.
     On several occasions, child has been discharged to her mother’s
     care from treatment in a stable condition, only to return within
     days in a critical state. Mother is a vocal advocate for [Child];
     however, Mother is manipulated easily by the whims and the will
     of the child. . . .

                                     ***

            Currently, there is great concern with the limited out-of-
     home placement options available for [Child] due to the nature of
     her illness and her behaviors. [CYS], the child’s probation officer,
     and the child’s doctors have all expressed their beliefs that it is
     not safe for her to be at home. As a result, [CYS] no longer



                                     -2-
J-S81011-18


      believes that R.H. is safe in her [m]other’s care, and thus initiated
      the process to adjudicate R.H. as a dependent child.

Trial Court Opinion, 10/12/18, at 2-5 (footnotes omitted).

      The trial court issued a verbal order placing Child in CYS custody on July

15, 2018. CYS filed an application for emergency protective custody on July

16, 2018, which the court granted on July 17, 2018. That same day, CYS filed

a shelter care application and dependency petition. The court conducted a

shelter care and adjudicatory hearing on August 1, 2018, before entering a

shelter care order on August 3, 2018. The court then conducted a continuation

of the adjudicatory hearing on August 6, 2018, after which it entered an order

adjudicating child dependent on August 9, 2018. Finally, the court conducted

a dispositional hearing on August 8, 2018, and entered a dispositional order

on August 23, 2018.2, 3 Mother timely filed a notice of appeal on September

4, 2018, along with a concise statement of errors complained of on appeal.4

      Mother now raises the following claims for our review.



2 Child’s father, G.B., did not appear at the hearings, but court-appointed
counsel appeared on his behalf and attempted to represent his interests. CYS
was unware of Father’s whereabouts at the time, with Mother reporting, “he’s
in Chicago in a halfway house and he’s on probation. . . . I don’t have his
phone number.” N.T., 8/6/18, at 153.
3 At the conclusion of each hearing, the trial court dictated an order, which it
then entered on the docket. Subsequently, the court entered an additional,
more formal order based on its dictated order. Here, we use the order entry
dates of the court’s more formal orders. We note that Mother’s appeal would
be timely regardless of what order entry date we used.
4 Child did not appeal her adjudication of dependency, but she did file a brief
in this Court supporting Mother’s appeal.


                                      -3-
J-S81011-18


      1. Did the Trial Court abuse its discretion and commit an error of
      law when it found, despite a lack of clear and convincing evidence,
      that the child is without proper care or control, subsistence,
      education as required by law, or other care or control necessary
      for her physical, mental, or emotional health or morals, thus
      contravening Section 6302(1) of the Juvenile Act, 42 Pa.C.S.A.
      §6301(1)[?]
      2. Did The Trial Court abuse its discretion and commit an error of
      law when it excluded [Mother] from being present for the
      testimony of medical professionals who treated her daughter,
      thereby prejudicing [Mother] and her ability to assist her counsel
      and violating her Constitutional rights to due process[?]
Mother’s Brief at 4 (trial court answers omitted).
      In dependency proceedings, we review the trial court’s orders pursuant

to an abuse of discretion standard of review. In the Interest of H.K., 172

A.3d 71, 74 (Pa. Super. 2017). As such, we must accept the court’s findings

of fact and credibility determinations if the record supports them, but we need

not accept the court’s inferences or conclusions of law. Id. “‘An abuse of

discretion is not merely an error of judgment, but is, inter alia, a manifestly

unreasonable judgment or a misapplication of law.’” In re A.T., 81 A.3d 933,

936 (Pa. Super. 2013) (quoting In re J.R., 875 A.2d 1111, 1114 (Pa. Super.

2005)).

      In her first claim on appeal, Mother challenges the trial court’s decision

to adjudicate Child dependent pursuant to Section 6302(1) of the Juvenile Act.

Mother’s Brief at 8-12. Mother argues that she provided appropriate care for

Child and sought out treatment for her eating disorder. Id. She emphasizes

that Child was receiving treatment at CHOP at the time the court adjudicated

her dependent, and insists that she did not intend to remove Child from CHOP,


                                     -4-
J-S81011-18

characterizing any evidence to the contrary as a mere “miscommunication.”

Id. at 10-12.

        The Juvenile Act governs dependency proceedings. See 42 Pa.C.S.A.

§§ 6301–6375. The Act permits a trial court to adjudicate a child dependent

if it finds that he or she meets the requirements of one of ten definitions listed

at Section 6302. The Act defines “dependent child” as follows, in relevant

part.

        “Dependent child.” A child who:

        (1) 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;

                                       ***

        (6) has committed a specific act or acts of habitual disobedience
        of the reasonable and lawful commands of his parent, guardian or
        other custodian and who is ungovernable and found to be in need
        of care, treatment or supervision;

                                       ***

42 Pa.C.S.A. § 6302.

        At the outset, we note that the trial court adjudicated Child dependent

pursuant to both Section 6302(1) and (6). Mother developed a challenge as

to Section 6302(1) only in her brief on appeal and preserved a challenge as




                                       -5-
J-S81011-18

to Section 6302(1) only in her concise statement and statement of questions

involved. As a result, Mother waived any challenge as to Section 6302(6),

and to Child’s dependency as a whole. See In re M.Z.T.M.W., 163 A.3d 462,

465-66 (Pa. Super. 2017) (“[T]his Court will not review a claim unless it is

developed in the argument section of an appellant’s brief. . . . Further, it is

well-settled that issues not included in an appellant’s statement of questions

involved and concise statement of errors complained of on appeal are

waived.”).

      Nevertheless, even accepting for the sake of argument that Mother did

preserve a challenge to Child’s adjudication of dependency for our review, she

still would not be entitled to relief. In its opinion, the trial court found that

Child is without proper parental care or control pursuant to Section 6302(1),

because Mother is unable to provide her with the discipline, guidance, support,

and supervision necessary to maintain a safe and healthy lifestyle. Trial Court

Opinion, 10/12/18, at 10. The court reasoned that Mother is unable to control

Child’s substance abuse and violent behaviors. Id. It further reasoned that

Child’s eating disorder worsens rapidly whenever she is in Mother’s care. Id.

at 10-11. Regarding Section 6302(6), the court found that Child is habitually

disobedient, ungovernable, and in need of treatment and supervision, as she

engages in substance abuse and violent behaviors, and refuses to eat despite

Mother’s direction that she consume a heathy diet. Id. at 12.




                                      -6-
J-S81011-18

      Our review of the record supports the trial court’s findings. Throughout

the hearings, the court heard copious testimony concerning Child’s substance

abuse and violent behaviors. Child’s juvenile probation officer, Justin Pittman,

testified that Child “mostly” tests positive for marijuana, but that she has also

tested positive for alcohol, and admitted to “abusing some pills, prescriptions,

and . . . using LSD in the past.” N.T., 8/1/18, at 72. He explained that Child’s

probation resulted from a misdemeanor simple assault charge in May 2017,

and that she is currently facing an additional six charges of felony aggravated

assault due to one or more incidents at Hershey Medical Center. Id. at 65-

66. Jennifer Chuang, M.D., testified that Child continued to behave violently

after arriving at CHOP. Id. at 40. She described the following incident.

      . . . . This is from July 25th where in the early afternoon, about
      1:30, [Child] became very verbally agitated. She did require
      being in restrain[t]s at that time due to her aggression towards
      the staff. Later that afternoon, I had rounded on her. We had
      spoken about an inter-agency phone call that we had regarding a
      recommendation of care. In particular, she was accepted to
      assisted living, and we were still waiting [for] insurance approval.
      [Child] was very, she was pretty insistent that she said that she
      did not want to go, and she became more and more upset and
      was spitting on staff. She punched a nurse. She head-butted
      another nurse, and during her escalations, she also had shouted
      to everybody in the room, [“]I am going to f-ing kill you all.[”] So
      that was just one of the episodes last week. But last week she --
      this did occur on a nearly daily basis.

Id. at 41-42.5




5 Dr. Chuang noted that Child’s behaviors have been “much better” during the
“last several days[.]” N.T., 8/1/18, at 40.


                                      -7-
J-S81011-18

      The trial court also heard testimony concerning Mother’s inability to care

for Child and manage her eating disorder. The record confirms that Child’s

condition deteriorates quickly whenever she leaves the hospital and returns

to Mother’s care. Rebecka Peebles, M.D., testified that CHOP has discharged

Child “at least two times earlier than we would have preferred at mom’s strong

request slash insistence, and she has multiple episodes of becoming ill within

3 days of being home.” N.T., 8/6/18, at 41. She explained as follows.

      . . . . [M]om has assured us that she has a safe plan of care for
      once [Child] gets home.

            And within literally 3 to 7 days [Child] has been back in an
      emergency room setting with either an overdose, or alcohol
      intoxication, or hypokalemia that is life threatening, meaning low
      potassium value because she’s been vomiting so much that she is
      now dangerously close to having a life[-]threatening arrhythmia
      of her heart, or due to significant weight loss and her heart muscle
      getting tired and beating too slowly and having that be incredibly
      dangerous.

             So she has gotten dangerously ill after many discharges and
      all of her most recent discharges, and as a result we no longer feel
      that it is safe for her to go home from CHOP. . . .

Id. at 30-31.

      Moreover, the trial court heard testimony that Mother refuses or fails to

make appropriate treatment decisions for Child.       Dr. Peebles testified that

Child would soon be transferring from CHOP to an inpatient facility in Virginia.

She explained that the facility “could be really, really good” for Child and that

it was the only one out of twenty-seven such facilities that agreed to admit

her. Id. at 32, 49, 55. Dr. Peebles reported that Mother had initially opposed



                                      -8-
J-S81011-18

the transfer. Id. at 49. Mother “would hang up the phone on me and tell me

she was going to sue us and that she would not accept it.” Id. Dr. Peebles

observed that Mother agreed to the transfer only after CYS commenced

dependency proceedings. Id. at 62. During her testimony, Mother criticized

the idea of transferring Child to the facility harshly, arguing that inpatient

treatment only worsens Child’s condition, and that she should attend intensive

outpatient treatment instead. N.T., 8/1/18, at 103-06. However, Dr. Peebles

rejected Mother’s position, explaining that no responsible outpatient program

would even accept Child, and that she is “unqualified for outpatient care by

any metric, medical or psychiatric.” N.T., 8/6/18, at 43-46.

      The record reveals that Mother displayed similar hostility toward Child’s

treatment at CHOP. Kenisha Campbell, M.D., testified that Mother considered

discharging Child from CHOP against medical advice. N.T., 8/1/18, at 85. Dr.

Campbell described a phone conversation during which Mother asked what

would happen if she tried to discharge Child. Id. at 83. Dr. Campbell replied

that Child was not safe to go home, and that she would have to contact social

workers and Child’s probation officer in an effort to prevent the discharge. Id.

at 83-84. Mother responded “that her lawyer told her that we couldn’t hold

her daughter in the hospital, and that we were holding her in prison . . . . And

then mom basically said, well, I am coming up there later[.]” Id. at 84. This

conversation led Dr. Campbell to believe that Mother may try to discharge

Child later that day, which in turn led CHOP to contact CYS. Id. at 85.



                                     -9-
J-S81011-18

      Thus, the record confirms that Child lacks proper parental care or control

pursuant to Section 6302(1). Mother has demonstrated that she is incapable

of ensuring Child’s safety and well-being. She has failed to provide Child with

appropriate supervision regarding her substance abuse, violent behaviors, and

eating disorder. Further, she has refused or failed to make suitable treatment

decisions for Child absent intervention by the trial court and CYS. Mother

displayed hostility toward inpatient treatment for Child despite the obvious

severity of her condition and the recommendations of her doctors at CHOP.

Mother even considered attempting to discharge Child from CHOP against

medical advice.

      In addition, while the record is somewhat unclear as to the extent of

Mother’s efforts to manage Child’s behaviors at home, it is apparent that Child

displays habitual disobedience and is both ungovernable and in need of care,

treatment, and supervision pursuant to Section 6302(6). During the hearing,

Mother testified that she takes steps to address Child’s eating disorder such

as purchasing locks so that Child “can’t binge on the food” and portioning out

Child’s food “so she won’t want to throw up.” Id. at 94. Nonetheless, Mother

seemed resigned to the futility of her efforts, noting that it “is not something

that anybody can control besides her.”        Id. at 95.   Similarly, Dr. Peebles

testified that the staff at CHOP has attempted to educate Mother about the

type of support that she would need to provide for Child at home, but that

Mother “gets very defensive, and she says, [‘]I know how to watch her. You



                                     - 10 -
J-S81011-18

can’t make her do anything she doesn’t want to do, you know.[’]”          N.T.,

8/6/18, at 64. We conclude that the trial court did not commit an error of law

or abuse its discretion by adjudicating Child dependent.

      In her second claim, Mother assails the trial court’s decision to prevent

her from being present during the testimony of Dr. Peebles. Mother’s Brief at

8, 13-16. By way of background, Dr. Peebles and counsel for CHOP requested

that Mother and Child not be present during the testimony due to concerns

that they may attempt to retaliate and harm Dr. Peebles. N.T., 8/6/18, at 10-

20. The court granted the request, but permitted counsel for both Mother and

Child to be present, conduct cross-examination, and inform their clients of the

substance of the testimony. Id. at 21-22. Mother maintains that the court’s

decision prejudiced her and violated her right to due process. Mother’s Brief

at 8, 13-16. She acknowledges that the court had the power to exclude her

based upon a showing of good cause, but insists that no good cause existed

in this case. Id. at 15-16.

      It is beyond cavil that a parent maintains a right to due process in any

dependency proceeding involving his or her child. See, e.g., In the Interest

of Jones, 429 A.2d 671 (Pa. Super. 1981). That right includes the ability to

confront and cross-examine adverse witnesses. Id. at 675. However, the

parent’s right to due process is not without limitations. See S.T. v. R.W.,

192 A.3d 1155, 1161 (Pa. Super. 2018) (quoting In re Adoption of Dale A.,

II, 683 A.2d 297, 300 (Pa. Super. 1996)) (“‘Due process is flexible and calls



                                    - 11 -
J-S81011-18

for such procedural protections as the situation demands.’”). The Rules of

Juvenile Court Procedure provide as follows, in relevant part.

      A. General Rule. All parties shall be present at any proceeding
      unless the exceptions of paragraph (B) apply.

      B. Exceptions.

      (1) Absence from proceedings. The court may proceed in the
      absence of a party upon good cause shown except that in no case
      shall a hearing occur in the absence of a child’s attorney. If a child
      has a guardian ad litem and legal counsel, both attorneys shall be
      present.

      (2) Exclusion from proceedings. A party may be excluded from a
      proceeding only for good cause shown. If a party is so excluded,
      counsel for the party shall be permitted to be present.

Pa.R.J.C.P. 1128(A)-(B).

      In the instant matter, the trial court explained that it prevented Mother

from being present during the testimony of Dr. Peebles due to the doctor’s

credible concern for her own safety. Trial Court Opinion, 10/12/18, at 15-16.

The court reasoned that it was imperative for it to hear testimony from Dr.

Peebles and that its decision did not cause Mother undue prejudice. Id. at

15. The court further reasoned that it protected Mother’s due process right

by allowing her counsel to be present, conduct cross-examination, and inform

her of the substance of the testimony. Id.

      We conclude once again that Mother is not entitled to relief. Prior to

testifying, Dr. Peebles explained her concern that Mother may attempt to harm

her if she is present during the testimony. Dr. Peebles acknowledged that she

was not aware of Mother ever threatening to harm someone, but emphasized


                                     - 12 -
J-S81011-18

that Mother “has never expressed any remorse or concern or even worry for

a single staff member, including myself, when we are dealing with her

daughter who becomes violent on a regular basis.” N.T., 8/6/18, at 12. Dr.

Peebles characterized Mother’s apathy as “highly unusual” and noted that

Mother “certainly does not” discourage Child’s acts of violence. Id. at 12-13,

16-17. In fact, Dr. Peebles observed that most of Child’s violent behaviors

occurred during or after a phone call with Mother and that Mother seemingly

“inflames [Child] and is in favor of [Child] showing her anger to staff.” Id. at

16-17. Dr. Peebles reported that Child’s violent behaviors ceased after CHOP

limited Mother’s communication with her and that it “seems directly correlated

to her communication with mom.” Id. at 19.

      Accordingly, while we agree with Mother that the record lacks evidence

that she would harm Dr. Peebles personally, the record does support the

possibility that Mother would incite or encourage further violent behavior by

Child against the staff at CHOP in general, or against Dr. Peebles in particular.

It was within the trial court’s discretion to accept the testimony of Dr. Peebles

and deem her concerns credible. See In the Interest of D.F., 165 A.3d 960,

966 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa. 2017) (“The [trial

c]ourt is free to believe all, part, or none of the evidence presented and is

likewise free to make all credibility determinations and resolve conflicts in the

evidence.”). Thus, we conclude that good cause existed to exclude Mother

pursuant to Rule 1128(B)(2).



                                     - 13 -
J-S81011-18

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion or commit an error of law by adjudicating Child dependent. We

therefore affirm the court’s August 23, 2018 dispositional order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 01/25/2019




                                    - 14 -
