In re Interest of Q.R.

199 A.3d 458

In the INTEREST OF: Q.R., a Minor

Appeal of: H.R., Mother

In the Interest of: L.R., a Minor

Appeal of: H.R., Mother

No. 230 EDA 2018

No. 232 EDA 2018

Superior Court of Pennsylvania.

Submitted September 26, 2018

Filed November 20, 2018

Robert S. Stigall, Philadelphia, for appellant.

Brian P. D. Johnson, Public Defender, and Patricia A. Korey, Public Defender, Philadelphia, for appellees.

Alicia B. Harrison, City of Philadelphia Law Dept., and Kathleen B. Kim, City of Philadelphia Law Dept., Philadelphia, for Philadelphia Dept. of Human Services, participating party.

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, H.R. ("Mother"), files this appeal from the Order dated and entered on December 1, 2017, in the Court of Common Pleas of Philadelphia County Family Court in which the trial court, in connection with dependency proceedings concerning Mother's sons Q.R., born in December 2002, and L.R., born in October 2011 (collectively, the "Children"), held Mother in contempt of court and incarcerated her until her adult daughter, (N.R.), surrendered N.R.'s infant daughter and Mother's non-custodial granddaughter, (N.M.), to the Philadelphia Department of Human Services ("DHS"). After review, we reverse the trial court's order.

The family came to the attention of the Department of Human Services (DHS) on August 26, 2017, following reports of Mother's alleged physical abuse of Q.R. N.T. at 9. DHS alleged that Mother had filmed Q.R. masturbating with the intent to publish such video on the Internet. Id. at 10-11. As testified by DHS Intake worker, Yavonna Shields, there were additional allegations of prior sexual abuse, untreated mental health issues, and harm to family pets related to Q.R.¹ Id. at 11-13.

Notably, Q.R. was hospitalized for mental health evaluations on three occasions since March of 2017 and was at Fairmount Behavioral Health at the time of the hearing.² Id. at 14, 25. Subsequent reports were received which included allegations relating to Mother's mental health; lack of medical care as to Q.R. and L.R. for an extended period of time; physical discipline of Q.R.;³ lack of treatment for Q.R. for past injuries and sexual abuse; Q.R.'s desire to harm animals; lack of compliance with the safety plan and refusal to accept in-home services and supports; absence of a bond between Mother and Q.R.; and the unkempt nature of the home.⁴ Dependency Petition, 11/14/17, at ¶¶ 5j, k.

DHS filed dependency petitions pertaining to Q.R. and L.R. on November 14, 2017. An adjudicatory hearing concerning these petitions was held on December 1, 2017. Mother was present and represented by Elizabeth Larin, Esquire. Children, almost fifteen years old and six years old at the time, although not present, were represented by a Child Advocate, Brian Johnson, Esquire.⁵ DHS presented the testimony of DHS Intake worker, Yavonna Shields, for purposes of the adjudication. Prior to the completion of Ms. Shields' testimony, Mother agreed to an adjudication of dependency and commitment.^{6 ,7} Notes of Testimony ("N.T."), 12/1/17, at 20. The parties stipulated that had Ms. Shields continued to testify she would have testified to the facts set forth in the dependency petitions. There was not a stipulation, however, as to the veracity of such facts. Id. at 21. Thereafter, DHS raised concern pertaining to who resided in the household. The trial court, finding N.R. and N.M. resided in Mother's household, thereafter held Mother in custody until N.R. surrendered N.M. to DHS.⁸ Id. at 28-44. In relevant part, the following exchange then occurred:

THE COURT : All right. This is what's going to have to happen. Where is the baby currently?

(Brief Pause)

THE COURT : Where's the baby?

(Brief Pause)

THE COURT : [Mother]?

[MOTHER] : With her mother.

THE COURT : Where is her mother?

[MOTHER] : I don't know.

THE COURT : Okay. Well, that's going to be a problem for you because you're going to be on this van to State Road. I'm going to hold you in State[']s custody until I get the baby.

[MOTHER] : I just don't know where she is, Your Honor.

THE COURT : Okay. Well, that's all right, you'll be able to make a phone call and get her here.

[MOTHER] : Okay.

THE COURT : Because the baby absolutely has to come into care because I do not necessarily believe the fact that the baby's not living there.

...

THE COURT : All right, so this is what has to happen. I'm going to hold [Mother] until [N.M.] is here for DHS.

MS. LARIN : Your Honor, my client has indicated she would call, give the phone number. DHS has the number.

THE COURT : Okay. She can call and phone and everything like that, but I need to ensure that I get the baby and mom hasn't been one to cooperate. So I can't give her the benefit of the doubt that she's going to cooperate based on her actions up until this point.

DHS has had an active investigation. And one of the reasons we got a continuance and I think I said this at the last hearing, with all the efforts that DHS made to try to complete their investigation I thought that they should have had a motion to compel even before we got to adjudicatory. I can't give mom the benefit of the doubt [Mother] that she's going to cooperate. And I'm not going to chance when there's a two-month-old baby. Not doing it.

MS. LARIN : And I understand, but could we have a motion to compel against [N.R.] because [N.R.] is a grown [sic]. She's twenty-six-years-old.

THE COURT : She's a household member in which DHS is doing an investigation. I don't have [N.R.] before the [c]ourt, but I do have [Mother] So, I'm going to have [Mother] be held in custody until the baby gets here and then we're good.

MS. LARIN : Your Honor, could I put my objection on the record.

THE COURT : You could absolutely put your objection on the record.

MS. LARIN : And, it would be that my client cannot guarantee that [N.R.] would come here. She's not able to purge what you're requesting of her. So I don't believe it's appropriate to hold her to get another adult to come into the home that's not --

THE COURT : I find that the baby is a household member. And I think [H.R.] needs to make the appropriate phone calls in order that DHS may be able to fully assess the safety of [N.M.]

And so, I understand what you're saying, but because of that, if I thought for certain that [N.R.] lived elsewhere then I would not do that, but I absolutely believe the testimony of Ms. Shields and based on the information of the two other minors that were in that home, I believe the baby lives there.

MS. LARIN : I understand, but we have no way of making [N.R.] come here. She wasn't raised by her mother. She doesn't necessarily -- she might not come.

THE COURT : But she lives there. But she lives there.

MS. LARIN : Couldn't we just have a police assist to the home?

THE COURT : No. Because I don't think that -- she's not cooperative. To do a police assist there has to be some level of cooperation. Half the time I don't think she was even allowing DHS to like go in the home. She wasn't opening the door.

[MOTHER] : That's not true.

THE COURT : I think that --

Okay. Let me tell you something --

MS. LARIN : Could we just have police go right now?

THE COURT : No, because I want the baby brought here. I'm not having the police go now. I have grandmom and that's what we're going to do.

...

THE COURT : ...

I'm just holding [Mother] until such time [N.M.] is produced to the Department. And once she is – once DHS has the baby then [Mother] can be released from custody.

...

N.T. at 33-34, 41-44, 47.

Specifically, the court's Order, signed and entered on the same date as the hearing, indicated the following:

Court is holding [Mother] in contempt of court, and [Mother] is permitted to be released once [N.M.] is brought down to DHS. DHS to notify the sheriffs unit on[c]e [N.M.] is obtained. If [Mother] is not released[,] [Mother] is to be brought down to the next court date.

Order of Adjudication and Disposition – Child Dependent, 12/1/17, at 2.⁹

On December 29, 2017, Mother, through counsel, filed timely notices of appeal, as well as concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte on January 23, 2018. The trial court filed a Rule 1925(a) opinion on May 31, 2018.¹⁰

On appeal, Mother raises the following issues for our review:

1. Did the trial court err by ordering [Mother]'s incarceration until [Mother]'s daughter, N.R., surrendered N.R.'s infant daughter and [Mother]'s non-custodial granddaughter, N.M., to DHS despite the trial court's lack of authority pursuant to the Juvenile Act to compel [Mother] to surrender a non-custodial child? [See ] 42 Pa.C.S.[A.] § 6301.

The trial court answers in the negative.

2. Did the trial court err in ordering [Mother]'s incarceration until [Mother]'s daughter, N.R., surrendered N.R.'s infant daughter and [Mother]'s non-custodial granddaughter, N.M., to DHS in contravention of [Mother]'s right to liberty, privacy, and due process of law pursuant to Article 1, Section 1 of the Pennsylvania Constitution ? [See ] Pa. Const. Art. 1, § 1.

The trial court answers in the negative.

3. Did the trial court err by ordering [Mother]'s incarceration until [Mother]'s daughter, N.R., surrendered N.R.'s infant daughter and [Mother]'s non-custodial granddaughter, N.M., to DHS in contravention of [Mother]'s right to liberty, privacy, and due process of law pursuant to the 14th Amendment of the United States Constitution? [See ] U.S. CONST. amend. XIV.

The trial court does not answer this question.

4. Did the trial court err by making a credibility determination that N.R. and N.M. resided with [Mother] by relying in part on out-of-court statements purportedly made by L.R. and [Mother]'s second son, Q.R., and memorialized in Child Protective Services ("CPS") reports, despite the fact that [Mother]'s counsel did not stipulate to the veracity of these reports, these reports were not admitted into evidence, and DHS did not establish the

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