J-S51001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

_________________________

*Retired Senior Judge assigned to the Superior Court. 

IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: A.F.M., FATHER : No. 3249 EDA 2014

Appeal from the Order October 23, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0000669-2012

IN THE INTEREST OF: K.H.M., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: A.F.M., FATHER : No. 3250 EDA 2014

Appeal from the Order October 23, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0000675-2012

IN THE INTEREST OF: A.H.M., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: A.F.M., FATHER : No. 3251 EDA 2014

Appeal from the Order October 23, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0000676-2012

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2015

Appellant, A.F.M. (“Father”) appeals from the orders entered in the 

Philadelphia County Court of Common Pleas, Family Court Division, which 

found aggravated circumstances existed and reasonable efforts were no 

longer required of the Department of Human Services (“DHS”) to reunify 
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Father and J.M., K.H.M., and A.H.M. (“Children”). We affirm in part and 

vacate in part. 

The trial court fully set forth the relevant facts and procedural history 

of this case in its opinion filed March 24, 2015. Therefore, we have no need 

to restate them at length; but we will summarize them briefly. Most 

recently, since the spring of 2012, DHS has been involved with this family, 

based on reports of Father’s excessive and inappropriate discipline toward 

Children and their failure to thrive. Each child suffered varied expressions of 

Father’s severe discipline and severe physical and emotional consequences 

as a result of his systematic starvation of Children. Consequently, Children 

were placed under protective orders, followed by findings of dependency and 

commitment to DHS’ custody. The court initially permitted supervised visits 

with Father, except for J.M., whose visits with Father were suspended. 

Throughout 2012, the court held regular permanency review hearings, after 

which the court continued Father’s supervised visits with Children, except for 

J.M. Visits with J.M. remained at the discretion of J.M.’s therapist. 

The instant proceedings began with child advocate petitions, filed on 

February 5, 2013, for a finding of “aggravated circumstances” and child 

abuse against Father relative to all three children. On November 13, 2013, 

the child advocate filed amended petitions for a finding of aggravated 

circumstances and child abuse against Mother as well. The hearing on these 

petitions was scheduled and rescheduled throughout the end of 2013 and 
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into 2014, based on appointment of new counsel, court schedules, and/or 

counsel’s schedules. The hearings eventually occurred on July 7, 2014, 

September 8, 2014, October 1, 2014, October 15, 2014, and October 23, 

2014.1 At the October 23, 2014 hearing, the court found “aggravated 

circumstances” existed as to Father relative to all three Children and allowed 

DHS to discontinue reasonable efforts to reunify Father and Children. The 

court suspended Father’s visits with J.M. and K.H.M. The court scheduled a 

hearing for December 1, 2014, to continue the permanency testimony for 

A.H.M. and decide visitation issues regarding Father and A.H.M.2 Meanwhile, 

Father timely filed notices of appeal from the court’s October 23, 2014 

orders on Monday November 24, 2014, accompanied by a concise statement 

of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).3 

 

1 At the start of the October 15, 2014 hearing, the child advocate withdrew 

the petition for aggravated circumstances/child abuse against Father 

regarding J.M. At the start of the October 23, 2014 hearing, the parties 

argued that, despite the child advocate’s withdrawal of the petition for 

aggravated circumstances against Father regarding J.M., the court could still 

find aggravated circumstances as to J.M. if the court found aggravated 

circumstances against Father as to A.H.M. and/or K.H.M., because a finding 

as to one child applies to all other children. Father’s counsel objected, 

stating a new motion must be filed against Father regarding J.M. on the 

basis of the sibling finding. The court overruled the objection. 

2 The permanency hearing for A.H.M. ultimately concluded on January 15, 

2015. The court suspended Father’s visits with A.H.M. until further notice. 

Father filed an appeal from that order, docketed at No. 624 EDA 2015. By 

order dated July 2, 2015, the appeal at No. 624 EDA 2015 was dismissed for 

failure to file a brief. 

3 Notwithstanding the initial appeal filing date, these consolidated appeals 

were not listed for disposition due to the delay in transmittal of the certified 
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On appeal, Father raises the following issues: 

WAS FATHER DENIED A FAIR HEARING AND DUE PROCESS 

BY THE TRIAL COURT’S REFUSAL TO PERMIT FATHER TO 

TESTIFY?

DID THE [TRIAL] COURT ERR IN FINDING AGGRAVATED 

CIRCUMSTANCES AS TO J.M. AS THE CHILD ADVOCATE 

HAD WITHDRAWN [HER] PETITION AS SUCH THE COURT 

MADE A DECISION ON A CHILD IN WHICH THERE WAS NO 

PETITION BEFORE THE COURT?

DID THE [TRIAL] COURT ERR IN DETERMINING THAT 

AGGRAVATED CIRCUMSTANCES EXIST AGAINST FATHER 

AS DHS FAILED TO PROVE THE CIRCUMSTANCES BY 

“CLEAR AND CONVINCING EVIDENCE” THAT FATHER 

EITHER DIRECTLY OR BY NEGLECT CAUSED THE CHILD’S 

INJURIES AS REQUIRED BY 42 PA.C.S.A. § 6341(C.1) AND 

42 PA.C.S.A. § 6302.

DID THE [TRIAL] COURT ERR IN DENYING FATHER 

VISITATION OF J.M. AND K.H.M. 

(Father’s Brief at 4). 

The applicable scope and standard of review for dependency cases is 

as follows:

The standard of review which this Court employs in cases 

of dependency is broad. However, the scope of review is 

limited in a fundamental manner by our inability to nullify 

 

record to this Court. The certified record was first due by December 24, 

2014. On January 8, 2015, this Court contacted the trial court and 

repeatedly requested the certified record and the court’s opinion. This Court 

finally received both the certified record and the opinion on March 26, 2015, 

causing the briefing schedule to be deferred by three months. Further 

Father sought another thirty days in extensions of time to file a brief. 

Appellees also sought and were granted short extensions of time to file 

briefs, which were all filed by June 29, 2015. See In re T.S.M., 620 Pa. 

602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for 

unexplained delays in disposition of cases involving at-risk children, 

causing them to remain in stasis for substantial, unnecessary time). 
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the fact-finding of the lower court. We accord great weight 

to this function of the hearing judge because he is in the 

position to observe and rule upon the credibility of the 

witnesses and the parties who appear before him. Relying 

upon his unique posture, we will not overrule his findings if 

they are supported by competent evidence.

In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000) (citations omitted). See 

also In re L.Z., ___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating 

standard of review in dependency cases requires appellate court to accept 

trial court’s findings of fact and credibility determinations if record supports 

them, but appellate court is not required to accept the trial court’s inferences 

or conclusions of law); In re D.P., 972 A.2d 1221, 1225 (Pa.Super. 2009), 

appeal denied, 601 Pa. 702, 973 A.2d 1007 (3009) (stating applicable 

standard of review in dependency cases is “abuse of discretion”). Further, in 

placement and custody cases involving dependent children:

The trial court, not the appellate court, is charged with the 

responsibilities of evaluating credibility of the witnesses 

and resolving any conflicts in the testimony. In carrying 

out these responsibilities, the trial court is free to believe 

all, part, or none of the evidence. When the trial court’s 

findings are supported by competent evidence of record, 

we will affirm even if the record could also support an 

opposite result.

In re S.G., 922 A.2d 943, 947 (Pa.Super. 2007). The Pennsylvania Juvenile 

Act,4 which was amended in 1998 to conform to the federal Adoption and 

Safe Families Act (“ASFA”),5controls issues pertaining to the custody and 

 

4 42 Pa.C.S.A. §§ 6301-6365. 

5 42 U.S.C. § 671 et seq.
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placement of dependent children. Id. “The policy underlying these statutes 

is to prevent children from languishing indefinitely in foster care, with its 

inherent lack of permanency, normalcy, and long-term parental 

commitment. Consistent with this underlying policy, the 1998 amendments 

to the Juvenile Act, as required by the ASFA, place the focus of dependency 

proceedings, including change of goal proceedings, on the child.” Id. In 

other words, these Acts equally emphasize the best interests of the child is 

at the heart of the court proceedings; although the reunification of children 

placed in foster care with their natural parents is a primary goal, the ASFA 

“was designed to curb an inappropriate focus on protecting the rights of 

parents when there is a risk of subjecting children to long term foster care or 

returning them to abusive families.” In re C.B., 861 A.2d 287, 295 

(Pa.Super. 2004). 

Both statutes are compatible pieces of legislation seeking 

to benefit the best interest of the child, not the parent. 

There is no denying that ASFA promotes the reunification 

of foster care children with their natural parents when 

feasible, but the one notable exception to the goal of 

reunification is where aggravated circumstances are extant 

in the home, which encompasses abandonment, torture, 

and/or abuse of a chronic or sexual nature:

(D) reasonable efforts ... shall not be required to be 

made with respect to a parent of a child if a court of 

competent jurisdiction has determined that—

(i) the parent has subjected the child to 

aggravated circumstances (as defined in State 

law, which definition may include but need not 

be limited to abandonment, torture, chronic 

abuse, and sexual abuse)[.] 
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42 U.S.C. § 671(a)(15)(D)(i). In like fashion, 

Pennsylvania’s Juvenile Act focuses upon reunification of 

the family, which means that the unity of the family shall 

be preserved “whenever possible.” 42 Pa.C.S.A. § 

6301(b)(1). However, as with ASFA, all family 

reunification may cease in the presence of a finding of 

aggravated circumstances...:

(c.1) Aggravated circumstances.—If the county 

agency or the child’s attorney alleges the existence 

of aggravated circumstances and the court 

determines that the child is dependent, the court 

shall also determine if aggravated circumstances 

exist. If the court finds from clear and convincing 

evidence that aggravated circumstances exist, the 

court shall determine whether or not reasonable 

efforts to prevent or eliminate the need for removing 

the child from the home or to preserve and reunify 

the family shall be made or continue to be made and 

schedule a dispositional hearing as required by 

section [6351(e)(3)] (relating to disposition of 

dependent child). 

42 Pa.C.S.A. § 6341(c.1). 

In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009), appeal denied, 603 Pa. 

710, 985 A.2d 220 (2009). “Safety, permanency, and the well-being of the 

child must take precedence over all other considerations, including the rights 

of the parents.” Id. 

Our Juvenile Act defines “Aggravated circumstances” as including the 

following circumstances:

§ 6302. Definitions

“Aggravated circumstances.” Any of the following 

circumstances:

* * *
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(2) The child or another child of the parent has been the 

victim of physical abuse resulting in serious bodily injury, 

sexual violence or aggravated physical neglect by the 

parent. 

42 Pa.C.S.A. § 6302(2). The definition of “child abuse” in effect at the time 

of these cases included:

§ 6303. Definitions

(b) Child abuse.─

(iv) Serious physical neglect by a perpetrator 

constituting prolonged or repeated lack of supervision 

or the failure to provide essentials of life, including 

adequate medical care, which endangers a child’s life or 

development or impairs the child’s functioning. 

23 Pa.C.S.A. § 6303(b)(iv). “Aggravated physical neglect” means “[a]ny 

omission in the care of the child which results in a life-threatening condition 

or seriously impairs the child’s functioning.” 42 Pa.C.S.A. § 6302. Section 

6334 of the Juvenile Act addresses petitions alleging aggravated 

circumstances in pertinent part as follows: 

§ 6334. Petition

* * *

(b) Aggravated circumstances─

(1) An allegation that aggravated circumstances exist 

may be brought:

(i) in a petition for dependency with regard to a 

child who is alleged to be a dependent child; or 

(ii) in a petition for a permanency hearing with 

regard to a child who had been determined to be a 
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dependent child.

(2) The existence of aggravated circumstances may 

be alleged by the county agency or the child’s attorney. 

... 

(3) A petition for dependency or a permanency 

hearing that alleges aggravated circumstances shall 

include a statement of the facts the...child’s attorney 

intends to prove to support the allegation. ... 

42 Pa.C.S.A. § 6334(b). Section 6351 of the Juvenile Act governs the 

disposition of the dependent child. 42 Pa.C.S.A. § 6351. 

In dependency cases, the standard to measure visitation depends on 

the goal mandated in the family service plan. In re C.B., 861 A.2d 287, 

293 (Pa.Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005). 

“Where...reunification still remains the goal of the family service plan, 

visitation will not be denied or reduced unless it poses a grave threat. If the 

goal is no longer reunification of the family, then visitation may be limited or 

denied if it is in the best interests of the...children.” Id. (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...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.

In re C.B., supra at 294 (internal citations and some quotation marks 

omitted). 

Finally, “The general rule is that a court may, in its discretion, reopen 
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the case...for the taking of additional testimony, but such matters are 

peculiarly within the sound discretion of the trial court....” Colonna v. 

Colonna, 791 A.2d 353, 356-57 (Pa.Super. 2001), appeal denied, 569 Pa. 

690, 803 A.2d 732 (2002) (quoting In re J.E.F., 487 Pa. 455, 458, 409 A.2d 

1166 (1979)).

Such a ruling will be disturbed only if the court has abused 

its discretion.

In determining whether there has been an abuse of 

discretion in denying a motion to reopen a case for further 

evidence, it is logical to review those factors which a court 

should consider when confronted with such a motion.

This Court has previously found it proper to reopen a case 

to allow the introduction of additional evidence where the 

evidence has been omitted by accident, inadvertence, or 

even because of mistake as to its necessity...but not where 

the omission was intentional.... We have also stated that a 

case may be reopened where it is desirable that further 

testimony be taken in the interest of a more accurate 

adjudication...and where an honest purpose would be justly 

served without unfair disadvantage....

Id. at 458-59, 409 A.2d at 1166 (internal citations omitted). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Joseph 

Fernandes, we conclude Father’s issues merit no relief. The trial court 

opinion comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion, filed March 24, 2015, at 1-18) 

(finding: (1) Father testified at September 8, 2014 hearing; given scheduling 

and coordination difficulties, Father knew he had to testify at October 15, 
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2014 hearing, at specific time and date certain, but he intentionally left 

courthouse and did not return until 45 minutes after hearing was scheduled 

and after closing arguments; based on Father’s September 8, 2014 

testimony, Father’s proposed additional testimony would have been 

cumulative; court had sufficient evidence to reach decision on aggravated 

circumstances; (2) court asks us to vacate its decision against Father on 

aggravated circumstances/no reasonable efforts regarding J.M., solely 

because child advocate withdrew that petition; (3) evidence was sufficient to 

support aggravated circumstances and child abuse against Father as to 

K.H.M. and A.H.M, based on Father’s excessive discipline and systematic 

neglect of Children’s basic caloric needs and resulting obvious health 

problems, which resolved following removal from home and normal diet; (4) 

based on competent, credible testimony, court continued suspension of 

Father’s visitation with J.M. because his heinous and repugnant actions 

toward J.M. posed grave threat to health, safety, and welfare of J.M.; 

K.H.M.’s visits with Father have hindered her progress in therapy; K.H.M. is 

so afraid of Father that she cannot disclose her fears in therapy because she 

is afraid Father will kill her with gun if she shares what happens during visits 

with Father; K.H.M. needs to feel physically and emotionally safe so she can 

heal from trauma she suffered at Father’s hand; Father posed grave threat 

to health, safety, and welfare of K.H.M.; based on competent, credible 

testimony, court suspended Father’s visitation with K.H.M.). 
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With respect to Father’s complaint about reopening the record, under 

the circumstances of this matter, we conclude the court properly found that 

the proposed additional evidence from Father would not have led to a more 

accurate adjudication and its absence had no problematic effect on the 

result. See In re J.E.F., supra. Further, the record supports the court’s 

decisions on aggravated circumstances against Father with respect to 

K.H.M., and A.H.M. The record also supports the court’s findings as to J.M. 

Nevertheless, based solely on the child advocate’s withdrawal of the petition 

for a finding of aggravated circumstances/child abuse regarding J.M., and in 

accord with the trial court’s request, we vacate the court’s finding of 

aggravated circumstances against Father as to J.M. only. We affirm the 

court’s orders in all other respects, based on the trial court’s opinion. 

Orders affirmed in part and vacated in part. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2015