J-S61031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.G., A MINOR

APPEAL OF: H.H., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1531 EDA 2019

Appeal from the Order Entered April 29, 2019

in the Court of Common Pleas of Philadelphia County Family Court at 

No(s): CP-51-DP-0000509-2019

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 16, 2019

Appellant, H.H. (“Mother”), files this appeal from the order entered April 

29, 2019, in the Philadelphia County Court of Common Pleas, adjudicating her 

male child with father, J.G. (“Father”), J.G., born in March 2019 (“Child”),

dependent, finding abuse as defined by 23 Pa.C.S. § 6303 and determining a 

report of abuse was founded as to Mother and Father,

1 and suspending 

Mother’s and Father’s visitation with Child, pending further order of court.

After review, we affirm the trial court’s order.

The trial court summarized the procedural and factual history as follows:

On January 24, 2018, the Department of Human Services 

(“DHS”) received a General Protective Services (“GPS”) report 

alleging that Mother gave birth to an infant girl (“Infant”) and that 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Mother does not challenge the adjudication of Child dependent or the finding 

of abuse.
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both tested positive for marijuana and cocaine. On April 8, 2018, 

[] Infant was found dead lying between Mother and Father in their 

bed. [] Infant died while Mother and Father were sleeping. The 

cause of death could not be determined by the Medical Examiner 

of Philadelphia. The Medical Examiner’s Report, however, 

reported that when [] Infant was found dead a partially smoked 

cigarette was found in the infant’s blanket and that adjacent to 

Mother’s bed was a crack cocaine pipe, empty vials and beer cans. 

Mother later admitted that when [] Infant died in her bed []

Mother was under the influence of drugs. 

On March 22, 2019[,] DHS received a GPS report alleging 

that Mother gave birth to [] Child [in] March [], 2019 and that 

both Mother and Child tested positive for marijuana and cocaine 

at delivery. Due to Mother’s history of mental illness, substance 

abuse and the death of [] Infant on April 8, 2018, DHS filed a 

petition to adjudicate [] Child [] dependent. On April 29, 2019, 

the trial court held [an adjudicatory] hearing to determine (1) if 

Child [] should be adjudicated dependent; (2) if aggravated 

circumstances existed and (3) whether reasonable efforts to 

reunify the family should be made or continue to be made. Mother
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was present and represented by counsel during the hearing.[2], [3]

After a full hearing on the merits, the trial court found clear and 

convincing evidence to adjudicate the Child dependent. The trial 

court also found that aggravated circumstances existed and that 

reasonable efforts to preserve the family need not be made. 

____________________________________________

2 Father was present and represented by counsel, as well. While Father 

presented an exhibit, neither Mother nor Father testified on their own behalf. 

 Moreover, Child was represented by a guardian ad litem, also referred to as 

a child advocate, Nghi Duong Vo, Esquire. This Court extended the 

requirements of In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 

(2017), and its progeny to dependency actions generally. See In re 

Adoption of L.B.M., 639 Pa. 428, 432, 441-42, 161 A.3d 172, 175, 180 

(2017) (plurality) (stating that, pursuant to 23 Pa.C.S.A. § 2313(a), a child 

who is the subject of a contested involuntary termination proceeding has a 

statutory right to counsel who discerns and advocates for the child’s legal 

interests, defined as a child’s preferred outcome); see also In re T.S., ___Pa. 

___, 192 A.3d 1080, 1089-90, 1092-93 (2018) (finding the preferred outcome 

of a child who is too young or non-communicative unascertainable in holding 

a child’s statutory right to counsel not waivable and reaffirming the ability of 

an attorney-guardian ad litem to serve a dual role and represent a child’s nonconflicting best interests and legal interests); see also In re J’K.M., 191 A.3d 

907 (Pa.Super. 2018) (reversing order denying appointment of a separate 

counsel for dependency proceedings where there was a conflict between the 

child’s best interests and legal interests). Given Child’s extreme young age,

we find the requirements of L.B.M. and T.S. were satisfied. We note, 

however, that in In re: Adoption of K.M.G., Appeal of T.M.G., ___ A.3d 

___, 2019 WL 4392506 (Pa.Super., filed September 13, 2019) (en banc),

petition for allowance of appeal granted, ___ A.3d ___, 362 WAL 2019 (Pa. 

filed 12/9/19), this Court held it has the authority only to raise sua sponte the 

issue of whether the trial court appointed any counsel for the child, and not 

the authority to delve into the quality of the representation.

3

In support of its petition, DHS presented the testimony of Michelle Ludwig, 

DHS social worker supervisor; Portia Henderson, DHS investigative social 

worker; and Tiara Clay, CUA case manager, Catholic Community Services. 

Notes of Testimony (“N.T.”), 4/29/19, at 4. DHS additionally presented 

exhibits DHS Exhibit 1 through 5, which were marked and admitted without 

objection. Id. at 10, 12, 28.
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Visitation between [] Mother and Child was ordered suspended.[4], 

[5] . . .

Trial Court Opinion (“T.C.O.”), 8/1/19, at 2-3 (unpaginated) (citations to 

record omitted).

In finding aggravated circumstances and that no reasonable efforts at 

reunification need be made, the trial court stated,

A history of crack cocaine use, which was part of the 

testimony from a couple years ago when this fatality, not even a 

couple years ago, one year ago where this fatality occurred in the 

presence of [M]other and [F]ather in the same house.

Also, this is the third child born with crack cocaine and 

marijuana in their system.

. . .

Or second child, excuse me. Second child born with crack 

cocaine and marijuana in his system. The admission by mother 

and father to drug abuse, namely crack cocaine. And a prior 

indicated report from DHS with regard to child abuse.

So that’s my finding.

No reasonable efforts be made to reunite this one-monthold child. . . .

[6]

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4 We observe that the court suspended visitation between Mother and Father 

and Child. Mother filed a motion for reconsideration on May 12, 2019. Said 

motion was denied by order dated May 15, 2019, and entered May 16, 2019. 

See Order 5/16/19.

5 The court additionally indicated that the report from April 8, 2018 was 

founded as to Mother and Father and made a finding of child abuse as defined 

by 23 Pa.C.S. § 6303. Order of Adjudication and Disposition, 4/29/19, at 2.

6 While the court made a finding of aggravated circumstances, as reflected by 

the subsequent permanency review order, Child’s permanency goal remained

reunification. See Permanency Review Order, 7/17/19.
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N.T., 4/29/19, at 39-40.

Further, as to visitation, the trial court continued,

I’m suspending any visitation until I get a better read on 

whether or not these people are cooperating and drug free, if not 

the visitation will remain or I’m sorry, will not occur. 

Id. at 42.

Mother, through appointed counsel, filed a timely notice of appeal on 

May 27, 2019, along with a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

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

Whether the trial court committed an error of law and abuse of 

discretion when it suspended visits between the mother, H.H.[,]

and her infant son, J.G.[?]

Mother’s Brief at 4.7

We observe our standard of review for dependency cases 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 

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7 While Mother additionally raised that the trial court erred and/or abused its 

discretion by ordering that DHS no longer follow their mandate to provide 

reasonable efforts to effectuate reunification in her Rule 1925 concise 

statement, we conclude that Mother waived this issue as she failed to raise it

in the statement of questions involved section of her brief and failed to include 

any argument and/or discussion related to this issue in her brief. See Krebs 

v. United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a 

failure to preserve issues by raising them both in the concise statement of 

errors complained of on appeal and statement of questions involved portion 

of the brief on appeal results in a waiver of those issues); see also In re 

W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011); see also In re M.Z.T.M.W., 

163 A.3d 462, 465-66 (Pa.Super. 2017). 
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lower court’s inferences or conclusions of law. Accordingly, we 

review for an abuse of discretion.

In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010) (citations omitted); 

see also In the Interest of L.Z., 631 Pa. 343, 360-361, 111 A.3d 1164, 

1174 (2015). “The trial court is free to believe all, part, or none of the 

evidence presented and is likewise free to make all credibility determinations 

and resolve conflicts in the evidence.” In re M.G. & J.G., 855 A.2d 68, 73-

74 (Pa.Super. 2004) (citation omitted).

Further, in dependency cases, where reunification remains the goal, this

Court has stated that parental visitation of the child may not be denied or 

reduced unless it poses a grave threat to the child. See In re C.J., 729 A.2d

89, 95 (Pa.Super. 1999). Where the permanency goal is no longer 

reunification, the court may suspend, limit, or deny visitation, if it is in the 

best interests of the child to do so. See id. (stating, “[t]he ‘best interests’ 

standard, in this context, is less protective of parents’ visitation rights than 

the ‘grave threat’ standard”). In In re C.B., 861 A.2d 287 (Pa.Super. 2004),

we explained,

The “grave threat” standard is met when the evidence clearly 

shows that the 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.

In re C.B., 861 A.2d at 293-294 (citations and some quotations omitted).

Nevertheless, “[i]n rare instances, we have approved restricting or 

temporarily suspending visitation even though there has been no showing of 
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such severe mental or moral deficiencies in the parent as would constitute a 

grave threat to the child’s welfare.” In re Damon B., 460 A.2d 1196, 1198 

(Pa.Super. 1983) (holding reduction of mother’s visitation rights was 

appropriate, even absent showing of mother’s severe mental or moral 

deficiencies which would constitute grave threat to child’s welfare, where visits

were counterproductive to child’s development of any bond with mother, and

child experienced severe stress during visits; and reduction of visitation was 

temporary and limited in time, where court scheduled review hearing within 

next seven months). Thus, in In re Damon B., we concluded that, although 

the trial court improperly applied the “best interest” standard instead of the 

“grave threat” standard, the error did not require reversal of the order 

temporarily reducing visitation because this Court can affirm the trial court’s 

ruling on any basis.

In the case sub judice, in determining that it was in Child’s best interests 

to suspend Mother’s visitation with Child, the trial court reasoned,

In the instant case, the trial court determined that visitation 

was to be suspended in order to find if Mother was capable of 

controlling her substance abuse problem. The [c]ourts have 

recognized that where reunification still remains the goal of the 

family service plan, visitation with a parent will not be denied or 

reduced unless it poses a grave threat to the child. Evidence of 

the existence of a grave threat may include documentation or 

testimony suggesting that visitation between child and parent 

causes a child significant ill effects, physically or emotionally.

Evidence of a grave threat may include documentation or 

testimony presented by the Commonwealth showing that there 

are no practicable visitation options that permit visitation and 

protect the child. [In re Mary Kathryn T., 427 Pa.Super[.] 515, 

530 (1993)]. Evidence of a grave threat includes documentation 
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or testimony presented by the Commonwealth showing that 

continued visitation has or will undo the good achieved under the 

child’s present placement. [In re B.G.,] 774 A.2d 761 

([Pa.Super.] 2001). Where reunification is not a viable option, 

then visitation may be limited or denied if it is in the best interests 

of the dependent child. [In re C.J.,] 229 A.2d 89, 95 (Pa.Super. 

1999). In the instant case, because the court determined that no 

reasonable efforts be made to reunite the family, the proper 

standard to review if visitation was to be suspended was based on 

a determination of [] Child’s best interests while balancing the 

rights of the Mother to visit [] Child. ([See In the Interest of 

E.P., 1171-72 WDA 2018, 2019 WL 993389 (Pa.Super., filed

February 28, 2019) (unpublished memorandum)]. In the instant 

case, Mother’s continued use of drugs; her drug history and the 

suspect circumstances of [] Infant’s death along with the fact []

Child and [] Infant were born with controlled substances in their 

systems from prenatal drug exposure justified that visitation be 

suspended. It should be noted, the trial court did not permanently 

terminate visitation but solely provided an opportunity to assess 

the scope of Mother’s addiction and to protect [] Child from further 

harm. This decision must be viewed in light of the fact the trial 

court had determined that aggravated circumstances already 

existed. Mother’s history of drug use and the death of [] Infant 

justified a suspension of visitation and was in [] Child’s best 

interest.

T.C.O. at 8-9 (unpaginated) (citations to record omitted).

Mother, however, argues that, absent a prior change of goal from 

reunification, the “grave threat” standard is applicable as to suspension of her

visitation with Child. Mother states as follows:

Here[,] the trial court erred applying the “best interests” standard 

in ordering visits suspended between [Child] and his parents. At 

the time of the April 29, 2019 Adjudicatory Hearing, [Child] had 

been in care under two months, there had been no goal change 

hearing that changed the goal of reunification that was still 

mandated by the family’s single case plan. The case law is clear 

that where reunification is the formal case plan goal, visitation 

may not be limited absent clear and convincing evidence of a 

“grave threat.” DHS and CUA did not meet their burden of proving 
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that continued supervised visits between [Child] and his parents 

would pose a grave threat to [Child].

Mother’s Brief at 10. Moreover, in the summary of her argument and in 

conclusion, Mother further asserts that the “best interests” standard is not 

met. Id. at 7, 12.

Upon review, we discern no abuse of discretion. We, however, find that 

the “grave threat” standard is applicable. In the instant matter, while 

aggravated circumstances were found and no further reasonable efforts 

toward reunification ordered at the conclusion of the adjudicatory hearing in 

question, see Aggravated Circumstances Order, 4/29/19, Child’s permanency 

goal remained reunification, see Permanency Review Order, 7/17/19. 

Nevertheless, the record supports the trial court’s suspension of parental 

visitation. The evidence reveals a history of substance use and abuse, as 

admitted by both Mother and Father. N.T., 4/29/19, at 11-17, 24-27; see 

also Exhibits DHS 2, 3, 4, 4/29/19. Child is the second child born to Mother 

and Father with cocaine and marijuana in their system. Id. at 13, 16-17, 24-

27; see also Exhibit DHS 2, 4/29/19. As testified by DHS investigative social 

worker, Portia Henderson, as to the investigation following Child’s birth, “Mom 

was very open. Accepted responsibility. Did admit to using the substance 

and stated that she had had a substance problem for a while.” Id. at 26. Ms. 

Henderson noted, however, that Mother did not indicate that she was engaged 

in any treatment. Id. Ms. Henderson also related that Mother stated that she 

did not have stable housing. Id. at 27. In addition, Mother tested positive 
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for marijuana and cocaine on April 8, 2019, as well as April 29, 2019, the date 

of the hearing in question.

8

 See DHS Exhibit 1, 7/17/19; see also Exhibit 

DHS 3, 4/29/19. Further, as reported by Michelle Ludwig, DHS social worker 

supervisor, an infant child died one year prior resulting in an indicated report 

with regard to child abuse with DHS. Id. at 19-21; see also Exhibit DHS 1, 

4/29/19. 

Moreover, the trial court suspended visitation “pending further order of 

court.” Order of Adjudication and Disposition, 4/29/19, at 2 (emphasis 

added). In suspending visitation, the court stated that it wanted to see if 

Mother and Father were “cooperating and drug free.” Id. at 42. Hence, as 

indicated by the court in its Rule 1925(a) Opinion, the suspension of visitation 

was temporary. As the court stated, “It should be noted, the trial court did 

not permanently terminate visitation but solely provided an opportunity to 

assess the scope of Mother’s addiction and protect [] Child from further harm.” 

T.C.O. at 9.

For the foregoing reasons, we affirm the order of the trial court

suspending Mother’s visitation.

Order affirmed.

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8 Father tested positive for marijuana and cocaine as well. See Exhibit DHS 

2, 7/17/19; see also Exhibit DHS 4, 4/29/19.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/19