In re V.B.

• Docket Number: 438 EDA 2023
• Decision Date: 29 August 2023
• Parties: IN THE INTEREST OF: V.B., A MINOR APPEAL OF: R.B., MOTHER
• Court: Pennsylvania Superior Court

1

IN THE INTEREST OF: V.B., A MINORAPPEAL OF: R.B., MOTHER

No. 438 EDA 2023

Superior Court of Pennsylvania

August 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered January 20, 2023, in the Court of Common Pleas of Philadelphia County, Juvenile Division at No(s): CP-51-DP-0001079-2022.

Joseph D. Seletyn, Esq.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS J.^[*]

MEMORANDUM

KUNSELMAN, J.

In this matter, R.B. (Mother) appeals the decision of the Philadelphia Court of Common Peas (the juvenile court), which determined that her 12-year-old daughter V.B. (the Child) was dependent under the Juvenile Act.See42 Pa.C.S.A § 6341.Mother claims that the decision was based on insufficient evidence, as well as improper hearsay testimony.In addition to the substantive dependency adjudication, Mother appeals the dispositional portion of the adjudicatory order, which removed the Child from Mother's home.After careful review, we conclude inter alia that the court's admission of impermissible hearsay testimony constituted a harmless error, and we affirm.

By way of factual background, the record indicates that the Philadelphia Department of Human Services(DHS) became involved with the family in early 2022.DHS had received a general protective services report, which referenced the parents' drug use and alleged there was domestic violence in the home.Although DHS ultimately determined these reports were "validated" in May 2022, DHS did not seek an order for protective custody or file a dependency petition.

In November 2022, DHS received another report alleging drug use and domestic violence in the home.This time, DHS filed a dependency petition and sought and obtained an order for protective custody.Pursuant to a safety plan, the Child went to live with a family friend.On January 20, 2023, the juvenile court held a hearing on the dependency petition.The court heard testimony from the DHS social worker who investigated the allegations, the caseworker from the Community Umbrella Agency(CUA), and the CEO of the Child's school.Neither parent appeared for the hearing.The testimony was the subject of frequent objections, mostly for hearsay.The court largely overruled the objections.At the end of the hearing, the court adjudicated the Child dependent and committed the Child to the custody of DHS.Mother timely filed this appeal.^[1]The juvenile court authored a Pa.R.A.P. 1925(a) opinion, which largely directs this Court to its reasoning set forth on the record.

Mother raises the following issues for our review, which we reorder for ease of disposition:

1.Did the juvenile court err as a matter of law and abuse its discretion by adjudicating [the Child] to be a "dependent child" pursuant to 42 Pa.C.S.A. § 6302 on hearsay statements in violation of the Juvenile Act, the Pennsylvania Rules of Evidence, and Appellant's right to due process?

2.Did the juvenile court err as a matter of law and abuse its discretion by adjudicating the Child to be a "dependent child" pursuant to 42 Pa.C.S.A. § 6302 in the absence of clear and convincing evidence that [the Child] was presently "without proper parental care and control…as required by law"?

3.Did the juvenile court err as a matter of law and abuse its discretion by committing the Child to the legal custody of [DHS] in the absences of clear and convincing evidence that removal from Mother was clearly necessary?

Mother's Briefat 3(style adjusted).

Our discussion begins with Mother's claim that the juvenile court committed evidentiary errors.The admission of evidence is within the discretion of the trial court and such decisions will be reversed only if the trial court has abused its discretion.Interest of I.R.-R., 208 A.3d 514, 519(Pa. Super.2019)(citation omitted).The Rules of Juvenile Court Procedure provide that in adjudications, each party shall have an opportunity to present evidence subject to the Rules of Evidence.SeePa.R.J.C.P. 1406.

"Under the Pennsylvania Rules of Evidence, hearsay evidence is incompetent and inadmissible unless it meets an exception set forth in the Rules or one prescribed by this Court or statute."In re A.J.R.-H., 188 A.3d 1157, 1167(Pa.2018)(quoting Pa.R.E. 801(c))."'Hearsay' is 'a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2)a party offers in evidence to prove the truth of the matter asserted in the statement.'"Id.Hearsay within hearsay - or "double hearsay" as it is sometimes referred - is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.SeePa.R.E. 805.

In her first appellate issue, Mother alleges several instances where the juvenile court improperly admitted hearsay evidence:

• The DHS social worker's testimony about what the neighbor told her about the parents' drug use and the existence of domestic violence in the home (seeN.T.at 16-18);

• The DHS social worker's testimony that the police department said there were several calls concerning domestic violence in the home (seeN.T.at 28);

• The DHS social worker's testimony about how the Child said Father"held her hostage in the home once"(seeN.T.at 21); and

• The CUA caseworker's testimony that, according to the Child, Mother said the Child should not speak to the caseworkers (seeN.T.at 47-48).

See generallyMother's Briefat 20-23:

We address each instance in turn.In the first instance, the DHS social worker testified that she spoke with Mother's neighbor as part of her investigation.Over Mother's objection, the caseworker testified about what the neighbor told her:

DHS social worker: The neighbor stated that there are major drug and alcohol concerns for Mother and Father.She stated that there are domestic violence concerns for Mother and Father.[The neighbor] stated that Father has been seen laying in the street apparent to be dead [sic] and they have ran to get [Mother] because he looked dead.And [Mother] basically came out and said, "Oh, I'm going to Narcan you."^[2] And he jumped up.

N.T.at 17-18(footnoted added).

This excerpt contains hearsay within hearsay - that is, the caseworker's testimony concerns what the neighbor said that Mother had stated to Father.As such, each component (Mother's statement and the neighbor's statement) required an exception to the hearsay rule.SeePa.R.E. 805(Hearsay Within Hearsay).

Mother's statement ("I'm going to Narcan you") meets an exception to the hearsay rule.SeePa.R.E. 803(25)(A)("The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity").However, Mother's statement was alleged by the neighbor.As the neighbor did not testify, her statement must fit within its own exception under either Pa.R.E. 803(Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is Available as a Witness) or Pa.R.E. 804(Exceptions to the Rule Against Hearsay - when the Declarant is Unavailable as a Witness).

Neither of the proponents of the neighbor's statement (DHS or the Child's GAL), nor the juvenile court addressed whether the neighbor's statement fit within a hearsay exception.In apparent agreement that the neighbor's statement constituted impermissible hearsay, the juvenile court said it would only consider the statement for dispositional purposes and not for the initial question of whether the Child should be adjudicated dependent.SeeN.T.at 17.

Under the Juvenile Act, an adjudicatory hearing has two distinct phases.First, the juvenile court must ascertain, after hearing the evidence on the dependency petition, whether the child is dependent - i.e., without proper parental care or control.See42 Pa.C.S.A. § 6341(a).Second, if the court finds from clear and convincing evidence that the child is dependent, the court shall proceed to make a proper disposition of the case.See§ 6341(c).^[3] Importantly, the Juvenile Act provides for a relaxed evidentiary standard when it comes to the dispositional phase:

(d) Evidence on issue of disposition.-

(1)(i) In disposition hearings under subsections

(b) and (c)[relating to dependency]all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.

[...]

(2)The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports.Sources of information given in confidence need not be disclosed.

42 Pa.C.S.A. § 6341(d)(emphasis added).

When the juvenile court explained that it would admit the hearsay testimony for dispositional purposes only, the parties' respective counsel sought clarification:

[Father's]counsel:^[4] I just want to complete the record, Your Honor.I understand that it's for the dispositional purposes, but we are not at disposition.We are not at adjudication and if that information comes in you are Judge and jury.That is prejudicial.

The court: Understood.I'll use it for dispositional purposes as you know we do both adjudication and disposition in the same hearing.I will be able to [parse] out the information that's received.

N.T.at 17(footnoted added).

We share Mother's concern that acceptance of inadmissible hearsay during the adjudicatory phase is problematic, even if the same testimony may be considered during the dispositional phase.Still, we must recognize that our trial judges are perfectly capable of entertaining a thought for one purpose without accepting it for another.Our Rules of...