In re Interest of J.P.

178 A.3d 861

IN the INTEREST OF: J.P., a Minor

Appeal of: O.T., Former Foster Parent

In the Interest of: A.V., a Minor

Appeal of: O.T., Former Foster Parent

No. 895 EDA 2017

No. 897 EDA 2017

Superior Court of Pennsylvania.

Argued October 10, 2017

Filed January 22, 2018

Laurie R. Jubelirer, Philadelphia, for appellant.

Patricia A. Korey, Philadelphia, appellees.

Michael E. Angelotti, Philadelphia, for Dept. of Human Services, participating party.

BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, former foster parent O.T. ("O.T."), files these consolidated appeals from the orders dated and entered February 10, 2017, in the Philadelphia County Court of Common Pleas, removing J.P., a male born in December 2011, and A.V., a female born in May 2007 (collectively, the "Children"), from O.T.'s home. We affirm.

Subsequent to the grant of emergency custody on December 20, 2011, the Children were adjudicated dependent on January 26, 2012.¹ At that time, the Children were placed in a Children's Choice foster home with O.T. Initially, the Children's permanency goal was reunification with their parent. Thereafter, the court conducted regular permanency review hearings to assess the Children's status. Pursuant to goal change petitions, A.V.'s permanency goal was changed to adoption on September 29, 2015, and J.P.'s permanency goal was changed to adoption on March 10, 2016.²

Master Alexis Ciccone presided over a permanency review hearing on September 9, 2016. When discussing concerns related to the Children's placement with O.T., caseworkers informed the master that the approval of O.T.'s family profile had been delayed as O.T. and her boyfriend had failed to provide certain documentation including fingerprints as well as medical and financial information. Notes of Testimony (N.T.), 9/9/16, at 8, 12. O.T. had not retained an attorney to assist her in seeking to adopt the Children. In addition, Community Umbrella Agency ("CUA") case manager, Jose DeJesus, raised concerns that O.T. may have been abusing prescription medication.³ Id. at 9–10.

As a result, the master ordered O.T. to submit to random drug testing and a dual diagnosis evaluation through the Clinical Evaluation Unit ("CEU"). O.T. indicated that she had been prescribed medication for pain and high blood pressure after being injured in a car accident. Id. at 13–14. At the close of the hearing, the master informed O.T. of the next hearing date of December 2, 2016 and also provided her a copy of the order from this hearing, which noted the date, time, and location of the next hearing.

At the December 2, 2016 hearing before Master Ciccone, the Department of Human Services ("DHS") and the Child Advocate requested the matter be listed for a judicial removal hearing. Despite receiving notice of this hearing, O.T. did not attend, but was subpoenaed for the next hearing date. Mr. DeJesus informed the master that after O.T.'s drug screen indicated the presence of several controlled substances, the Children were removed from her home and placed in a Bethany Christian Services foster home on September 14, 2016. N.T., 12/2/16, at 7, 11.

On February 10, 2017, at the next hearing, again presided over by Master Ciccone, Mr. DeJesus confirmed that the Children had been removed from O.T.'s home as her drug screen was positive for high levels of opiates, benzodiazepines, marijuana, and cocaine; the readings for all substances exceeded levels that the testing device was able to measure.⁴ N.T., 2/10/17, at 8–9, 16, 33. When Children's Choice was notified of the Children's removal, O.T. lost her certification as a foster parent. Id. at 3, 10–11.

While O.T.'s family assured Mr. DeJesus they would assist her to seek help in the form of therapy and treatment, he was unaware as to whether she had engaged in a drug treatment program. Id. at 8, 9, 12. Critically, O.T. never provided Mr. DeJesus any explanation for her positive drug screen. Thus, Mr. DeJesus opined that there were "serious safety concerns concerning [O.T.'s] ability to properly care for the [Children]" and it was in their best interests to be removed from her home permanently. Id.

O.T., who was present and permitted to testify, indicated that she was prescribed opiate pain medication for an injury to her knee from an accident in January 2016 and took benzodiazepines as needed for anxiety attacks.⁵ Id. at 12–13. She did not acknowledge that the amount of prescription drugs measured in her blood test far exceeded therapeutic levels, was unable to explain the presence of cocaine in the blood, and was unwilling to admit she had any problem, stating, "I didn't need help. I'm not a drug addict...." Id. at 12–13, 18. In response to the master's inquiry as to why she did not engage in rehabilitation, O.T. indicated, "I don't need rehab. I'm not on drugs. I went to a party. The kids went down the shore. I went to a party, smoked marijuana. They were drinking...."⁶ Id. at 17–18. As to the presence of cocaine, she continued, "I don't know if—I don't know what happened that night really. And I'm sorry it happened." Id. at 18.

DHS argued that the Children's removal from O.T.'s home is in their best interests, maintaining that they were removed due to "an obvious safety risk." Id. at 15. The Child Advocate joined in this argument. Id. In opposition, O.T. argued that the Children had been with her for five years and that, notably, J.P. had been in her care essentially his entire life. Id. at 19–20. Master Ciccone agreed with DHS and the Child Advocate and issued a Permanency Review Order with the finding that "a judicial removal from [O.T.'s] home is in the best interest of the child by clear and convincing evidence," Master's Recommendation—Permanency Review, 2/10/17. The trial court adopted the master's recommendation on that same date. Id.

On March 13, 2017, O.T. filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated on April 5, 2017.

O.T. raises the following issues for our review:

1. Did Judge Olszewski err in his opinion when he held that [O.T.'s] failure to file a challenge to the Master's recommendation in the prescribed three-day period pursuant to Pa.[ ]R.J.C.P. 1191 constituted a waiver of any issue that would challenge the Master's recommendation and that such waiver precludes the instant appeal?

2. Did the trial court err in denying standing to [O.T.], a prospective adoptive parent, in the Judicial Removal proceeding on February 10, 2017, when it was ordered that her prospective adoptive children were to be removed from her care?

3. Did the trial court err in denying [O.T.] her 42 Pa.C.S.A. § 6336.1 statutory right to notice and to be heard in violation of procedural due process at the dependency hearings on December 2, 2017 and to fully be heard with the assistance of her attorney on February 10, 2017, prior to the [c]ourt making its recommendation to judicially remove the [C]hildren from her care?

4. Did the trial court err in following the recommendation of D.H.S. and the child advocate, in finding that it was in the children's best interest to be removed from [O.T.'s] home, where the [C]hildren had resided and thrived for almost five years?

O.T.'s Brief at 5.

In a dependency case, our standard of review is 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 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).

We first review the trial court's finding that O.T. waived all issues on appeal by failing to challenge the Master's recommendation within three days of her receipt of the recommendation, pursuant to Pennsylvania Rule of Juvenile Court Procedure 1191. This rule provides in relevant part:

RULE 1191. MASTER'S FINDINGS AND RECOMMENDATION TO THE JUDGE

...

C. Challenge to Recommendation. A party may challenge the master's recommendation by filing a motion with the clerk of courts within three days of receipt of the recommendation. The motion shall request a rehearing by the judge and aver reasons for the challenge.

D. Judicial Action. Within seven days of receipt of the master's findings and recommendation, the judge shall review the findings and recommendation of the master and:

1) accept the recommendation by order;

2) reject the recommendation and issue an order with a different disposition;

3) send the recommendation back to the master for more specific findings; or

4) conduct a rehearing.

Pa.R.J.C.P. 1191.

In this case, the trial court found that O.T.'s failure to challenge the master's recommendation pursuant to Pa.R.J.C.P. 1191 deprived it of the ability to issue an appealable order. However, Rule 1191 does not require a party to challenge a master's recommendation, but provides that a party "may" file a motion to request a rehearing before the trial court. Section 6305(d) of the Juvenile Act provides that "[a] rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations [of the master] become the findings and order of the court when confirmed in writing by the judge." 42 Pa.C.S.A. § 6305(d). Moreover, this Court has held that "neither the Juvenile Act, nor the Rules of Juvenile Court Procedure, provides that parties have a right to a rehearing after a dependency hearing before a master. The Juvenile Act provides that a court ‘may’ order a rehearing, but only upon cause shown." In Interest of H.K. , 172 A.3d 71, 76 (Pa.Super. 2017) (citing 42 Pa.C.S.A. § 6305(d) ). See In re A.M. , 365 Pa.Super. 516, 530 A.2d 430, 432 (1987) (finding "there is no requirement to file exceptions to the master's report to preserve issues on...