J-A35022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


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

APPEAL OF: B.W.                                   No. 1310 WDA 2014


                 Appeal from the Order entered July 2, 2014,
           in the Court of Common Pleas of Westmoreland County,
             Juvenile Division, at No(s): CP-65-DP-0000094-2014

BEFORE:     BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED JANUARY 27, 2015

      B.W. (“Father”) appeals from the order which adjudicated dependent

his minor son, R.W. (“Child”), born in June of 2014.1 We affirm.

      On June 19, 2014, the Westmoreland County Children’s Bureau

(“WCCB”) filed a dependency petition as to Child, alleging that Father was

incarcerated, and that he was an indicated perpetrator of physical and

sexual abuse of two of Child’s half-siblings.    The petition also alleged that

Child’s mother (“Mother”) was an indicated perpetrator of medical neglect

for failing to report and failing to act after Father inflicted severe injuries on

one of her children, who is Child’s half-sibling. The petition indicated that

both Father and Mother were facing criminal charges.




1
  At the time of the adjudication, Father had submitted to a paternity test to
determine whether he was the biological father of Child. The results of that
test are not contained in the certified record. However, on appeal, both
Father and the Guardian ad Litem, who submitted a brief as an appellee,
describe Father as Child’s biological parent.
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       A dependency hearing was held on July 2, 2014, during which the trial

court heard the testimony of WCCB caseworker, Paula Cerra; Mother’s

therapist, Benjamin Yaroch; and L.C., Child’s maternal grandmother.      An

order adjudicating Child dependent was entered that same day. On July 31,

2014, Father timely filed a notice of appeal, along with a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b).

       Father now presents the following issues for our review, which we

have reordered for ease of disposition.

       [I.] Whether the lower court erred in admitting hearsay
       testimony of lay witnesses and medical experts[?]

       II. Whether the lower court erred in relying upon evidence
       presented at a custody hearing involving children who were not
       children of [Father], and to which [Father] was not a party[?]

       [III.] Whether the lower court erred in denying visitation
       between Appellant Father and his [C]hild where the evidence did
       not establish by clear and convincing evidence that supervised
       visitation with [F]ather would pose a grave danger to the minor
       [C]hild and the goal in the case is reunification[?]

Father’s Brief at 2.

       We consider Father’s issues mindful of the following:

       Our Supreme Court set forth our standard of review for
       dependency cases as follows.

            [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


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           court's inferences or conclusions of law. Accordingly,
           we review for an abuse of discretion.

     In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010) (citation
     omitted).

          To adjudicate a child dependent, a trial court must
     determine, by clear and convincing evidence, that the child:

           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.

     42 Pa.C.S.A. § 6302. “Clear and convincing” evidence has been
     defined as testimony that is “so clear, direct, weighty, and
     convincing as to enable the trier of facts to come to a clear
     conviction, without hesitancy, of the truth of the precise facts in
     issue.” In re C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997)
     (citation omitted).

            In accordance with the overarching purpose of the Juvenile
     Act “[t]o preserve the unity of the family whenever possible,”
     see 42 Pa.C.S.A. § 6301(b)(1), “a child will only be declared
     dependent when he is presently without proper parental care
     and when such care is not immediately available.” In re R.T.,
     405 Pa. Super. 156, 592 A.2d 55, 57 (1991) (citation omitted).
     This Court has defined “proper parental care” as “that 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
     C.R.S., supra at 845 (citation omitted).

           In regard to when a child should be removed from parental
     custody, we have stated:

                 The law is clear that a child should be removed
           from her parent’s custody and placed in the custody
           of a state agency only upon a showing that removal
           is clearly necessary for the child's well-being. In
           addition, this court had held that clear necessity for
           removal is not shown until the hearing court

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            determines that alternative services that would
            enable the child to remain with her family are
            unfeasible.

      In re K.B., 276 Pa. Super. 380, 419 A.2d 508, 515 (1980)
      (citations omitted). In addition, this Court has stated: “[I]t is
      not for this [C]ourt, but for the trial court as fact finder, to
      determine whether [a child’s] removal from her family was
      clearly necessary.” In re S.S., 438 Pa. Super. 62, 651 A.2d
      174, 177 (1994).

In re A.B., 63 A.3d 345, 349-50 (Pa. Super. 2013); see also In re E.B., 83

A.3d 426 (Pa. Super. 2013) (quoting In re R.W.J., 826 A.2d 10, 14 (Pa.

Super. 2003)) (“It is well-settled that ‘a finding of dependency can be made

on the basis of prognostic evidence and such evidence is sufficient to meet

the strict burden of proof necessary to declare a child dependent.’”).

      Father’s first claim is that the trial court erred by admitting hearsay

testimony during the dependency hearing. Father’s Brief at 20-22. Father

cites to several instances where the trial court admitted alleged hearsay

evidence over the objection of counsel. Id. at 21-22.

            When we review a trial court ruling on admission of
      evidence, we must acknowledge that decisions on admissibility
      are within the sound discretion of the trial court and will not be
      overturned absent an abuse of discretion or misapplication of
      law. In addition, for a ruling on evidence to constitute reversible
      error, it must have been harmful or prejudicial to the
      complaining party.

            An abuse of discretion is not merely an error of judgment,
      but if in reaching a conclusion the law is overridden or
      misapplied,  or    the   judgment       exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence or the record, discretion is abused.




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Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (quoting Stumpf v.

Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008), appeal denied, 962 A.2d

1198 (Pa. 2008)).

      After a thorough review of the testimony presented during the

dependency hearing, we conclude that Father is not entitled to relief. Even if

we were to determine that the trial court erroneously admitted certain

hearsay testimony, this would not warrant a reversal of the trial court’s

order. Even excluding the statements to which counsel objected, there was

ample testimony produced during the hearing to support the adjudication of

dependency.

      Ms. Cerra, the WCCB caseworker, testified that Child’s half-sibling,

A.M., was hospitalized due to “acute injuries to the scrotum.”            N.T.,

7/2/2014, at 47.     However, at the time A.M. was hospitalized, it was

determined that A.M. had pre-existing facial injuries.   A.M.’s facial injuries

were beginning to heal, and it appeared that they had been inflicted days

before the hospitalization. Id. at 47, 64-66. Medical reports indicated that

A.M. was still in severe pain as a result of his facial injuries at the time he

was hospitalized, and Ms. Cerra confirmed, during cross-examination by

Father’s counsel, that the physician who examined A.M. indicated that “those

injuries would have caused severe pain and did require medical attention.”

Id. at 48, 65.




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      Additionally, when Mother sent a picture of A.M.’s face to his biological

father, the father reacted with concern.     Id. at 59.   Mother responded by

stating multiple times that she did not want to get others involved, so that

she would not be investigated. Id. at 59-60. Ms. Cerra testified that, had

she been made aware of A.M.’s facial injuries at the time they occurred, she

would have put a safety plan in place. Id. at 64. She noted that she saw a

picture of A.M.’s face taken prior to his hospitalization, and that she believed

A.M. needed medical care based on viewing the picture. Id. at 30.

      In sum, the testimony presented during the dependency hearing

established that A.M. suffered facial injuries causing severe pain, that the

seriousness of A.M.’s injuries was apparent, and that the injuries remained

untreated for days until A.M. was finally hospitalized as a result of injuries to

his scrotum. This evidence by itself is sufficient to affirm the adjudication of

dependency, as it demonstrates that Mother and Father had, at the very

least, subjected A.M. to extreme neglect.       Based on this neglect, it was

reasonable for the court to conclude that Child is without proper parental

care or control, as Mother and Father have proven themselves incapable of

providing care that is likely to prevent serious injury to Child.    See In re

G.T., 845 A.2d 870, 874 (Pa. Super. 2004) (holding that a child could be

adjudicated dependent where her parents failed to seek medical treatment

for the child’s sister, on the basis that the Court could “assume that any




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medical problem [the child] might have developed would have been similarly

ignored”).

      Father’s next issue is that the trial court abused its discretion by

adjudicating Child dependent based on evidence presented at a custody

hearing involving Mother and the father of Child’s half-siblings.       Father’s

Brief at 16-19. Father directs our attention to the findings of fact that were

issued by the trial court in conjunction with its dependency order, and

contends that the trial court erroneously took judicial notice of testimony

and exhibits presented at the custody hearing in order to support these

findings. Id. at 18-19.

      Again, we conclude that Father is not entitled to relief.          As we

explained,   supra,   there    was   ample   testimony   presented   during   the

dependency hearing to support the court’s conclusion that Child should be

adjudicated dependent.        Thus, even if we were to conclude that the trial

court erred by taking judicial notice of evidence presented at the custody

hearing, reversal of the trial court’s order would be unwarranted.

      Finally, Father argues that the trial court erred by denying him

visitation with Child.    Id. at 9-16.       This Court has explained that, in

dependency cases, “[w]here . . . reunification still remains the goal of the

family service plan, visitation will not be denied or reduced unless it poses a

grave threat.”   In re C.B., 861 A.2d 287, 293 (Pa. Super. 2004), appeal,




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denied, 871 A.2d 187 (Pa. 2005) (quoting In re B.G., 774 A.2d 757, 760

(Pa. Super. 2001)).

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

Id. (quoting In re C.J., 729 A.2d 89, 95 (Pa. Super. 1999)) (citations

omitted).

      Here, while Father attempts to distinguish this matter from the facts of

C.B. and other cases, it is clear that he is not entitled to relief.    Again,

sufficient evidence was presented during the hearing to support Child’s

adjudication of dependency.       Additionally, evidence was presented to

support the conclusion that Father was the perpetrator of the abuse suffered

by A.M.

      Ms. Cerra testified that Mother’s explanation for A.M.’s injuries was not

consistent with the information she received from medical personnel. Id. at

23-24. Ms. Cerra noted that there was no evidence that Mother had caused

the injuries, and that, as far she knew, Mother was not home at the time

A.M.’s scrotal injuries were sustained. Id. at 18, 24. Instead, Ms. Cerra’s

testimony indicated that Father inflicted A.M.’s injuries.   For example, Ms.

Cerra testified, without objection, that “there was a disclosure made” that

A.M. had also been subjected to heinous acts of sexual abuse by Father. Id.

at 25. Ms. Cerra noted that Mother’s other children had been interviewed,

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and that one indicated that he had been “hit and kicked by [Father].” Id.

Thus, the evidence established that Father has demonstrated a severe

mental or moral deficiency that constitutes a grave threat to Child. No relief

is due.

         Accordingly, because we conclude that the trial court did not abuse its

discretion by adjudicating Child dependent, we affirm the order of the trial

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/27/2015




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