J-S37018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF C.B., JR., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
v.
APPEAL OF: C.B., SR.; FATHER
No. 264 MDA 2014
Appeal from the Order Dated January 22, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No: CP-06-DP-0000060-2010
IN THE INTEREST OF A.B., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
v.
APPEAL OF: C.B., SR.; FATHER
No. 265 MDA 2014
Appeal from the Order Dated January 22, 2014
In the Court of Common Pleas of Berks County
Juvenile Division at No: CP-06-DP-0000046-2010
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 01, 2014
the Juvenile Division of the Court of Court of Common Pleas of Berks County
J-S37018-14
1
After
considered review, we affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
summarized the procedural history of this case as follows:
This family, including Father, [Mother], the minor children,
and their half-sibling, D.J., has an extensive history with Berks
minor children were previously in foster care from April 1, 2010,
e
in May 2012 and dependency was terminated in March 2013
demonstrated sobriety and cooperation with substance abuse
treatment. Unfortunately, less than a year and a half after their
return to
Mother had relapsed and disengaged from substance abuse
treatment. After Mother missed two scheduled urine screens
and tested positive on January 10, 2014, BCCYS petitioned for
and was granted emergency custody of the minor children on
including two years while the minor children were in foster care,
Father has been largely uncooperative with BCCYS and court-
ordered services.
BCCYS filed petitions on January 15, 2014, requesting that
the minor children be declared dependent. The Court held a
detention hearing on January 17, 2014, and, at the conclusion
thereof, determined that the minor children should remain in
foster care until the adjudicatory and dispositional hearing on
January 22, 2014. Upon the agreement of the parties, the Court
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1
C.B., Jr. (d/o/b 1/18/07) and A.B. (d/o/b 12/8/09) are the children of
3/16/12), wi
at 7. The trial court issued an order and disposition for each child on
appeal addresses the orders with respect to Son and Daughter. Mother has
disposition with respect to D.J. are not before this Court in this appeal.
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incorporated the testimony from the detention hearing into the
dependency hearing. At the conclusion thereof, this Court found
the children to be without the necessary care and control and
that it was within their best interest to be removed from
minor children dependent and transferring legal custody to
BCCYS for placement purposes.
Trial -2 (references to notes of
testimony and court documents omitted).
On February 6, Father filed timely appeals, which we have
consolidated sua sponte, and raised four issues in his Rule 1925(b)
statement of matters complained of on appeal, the same four issues he asks
this Court to consider on appeal:
1. Did the lower court err by finding said children to be
dependent?
2. Did the lower court err by taking said children under the care
of the court and placing them into foster care?
3. Did petitioners establish by clear and convincing evidence
that said children were dependent and should be placed into
foster care?
4. Was the evidence presented by petitioners insufficient to
hildren
dependent and place them into foster care?
2
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2
We remind counsel for Father of the requirements for matters to be
con
statement of jurisdiction, the orders in question, and the statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pa.R.A.P.
2111(a)(1), (a)(2), (a)(11) and (d).
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Father suggests that his first and second issues are substantively
related and that his third and fourth issues are also substantively related.
Consequently, Father combines his arguments into
two parts, the first considering issues one and two and the second
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court, on the other hand, determined that the four issues identified in
Father argues that the Court erred in declaring the minor
children dependent and transferring legal custody to BCCYS for
placement purposes. Father contends that the evidence
presented by BCCYS was insufficient to show that the minor
children were without the proper care, control or subsistence
necessary for their physical, mental and emotional health and
that foster care [was] not [] the least restrictive placement to
meet those needs.
T.C.O. at 3 (emphasis in original). We agree with the trial court that the
four issues are so interrelated that they warrant unified discussion and we
shall conduct our review accordingly.
Our Supreme Court set forth the standard of review for dependency
cases 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
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
This Court has explained:
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Dependency matters are governed by the Juvenile Act, 42
Pa.C.S.A. § 6301, et seq.
without proper parental care or control, subsistence, education
as required by law or other care or control necessary for his
physical, mental or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian, or other custodian that places the health, safety or
welfare of the child at risk. The question of whether a child is
lacking proper parental care or control so as to be a dependent
child encompasses two discrete questions: whether the child
presently is without proper parental care and control, and if so,
whether such care and control are immediately available.
The burden of proof in a dependency proceeding is on the
petitioner to demonstrate by clear and convincing evidence that
a child meets that statutory definition of dependency.
In re E.B., 83 A.3d 426, 431 (Pa. Super. 2013) (citing In re T., G. (Appeal
of S.S.), 845 A.2d 870, 872 (Pa. Super. 2004) and 42 Pa.C.S.A. § 6302
(definition of dependent child)).3
the trial court provided the following excerpt from the dependency hearing
testimony:
The Court: Anyone tha
Now, a fair reading of everything and
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3
Pursuant to 42 Pa.C.S.A § 6302(1), the finding of lack of proper parental
of the
safety or welfare of the child Id.
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Mom cannot take the children right now.
And [Father] is not in a position to care
for the children. Does everyone
acknowledge that?
Yes.
Yes.
The Court: Everyone seems to be shaking their
heads up and down. So therefore they
are dependent children. I mean, does
anyone really dispute the dependency
aspect of these proceedings at this point
in time?
No, not on behalf of my client.
As far as the parents are concerned, the
kids would be dependent but there is, we
think, [a] ready and willing relative.
T.C.O. at 4 (quoting N.T. Dependency Hearing, 1/22/14, at 6-7).4
The trial court concluded that Father waived any challenge to the
determination of dependency by acknowledging the minor children would be
dependent with respect to the parents, but suggest
challenging the dependency finding as much as he was challenging the
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4
H.J., who was incarcerated at the time of the dependency hearing, testified
that he was not an appropriate resource for the children as of the time of the
hearing. N.T. Dependency Hearing, 1/22/14, at 6. Mother acknowledged
she started using heroin again in the summer of 2013 and had used heroin
as recently as January 9, 2014. N.T. Detention Hearing, 1/17/14, at 9-10;
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Detention Hearing, 1/17/14, at 50.
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i.e
-5. We conclude that the trial
worst because the trial court did consider Paternal Grandmother as an
alternative to designating the minor children dependent. Further, the trial
court considered placing the minor children with Paternal Grandmother
rather than in foster care.
role in these proceedings. Father contends the trial court used Paternal
Grandmother was not afforded a full opportunity to present evidence or
represent herself as a part Paternal
Grandmother has not claimed party status and, in fact, has not filed any
documents with the trial court claiming party status or seeking to intervene
in the dependency proceedings, she did attend the detention hearing and
offered testimony. N.T. Detention Hearing, 1/17/14, at 34-55. Further, her
counsel presented argument at the dependency hearing. N.T. Dependency
Hearing, 1/22/14, 7-11.
At the detention hearing, Mother was asked who was caring for the
minor children from May of 2012, when they were returned to her custody,
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home.5
Hearing, 1/17/14, at 9.6 Mother also testified that she took Son to Paternal
Id. at 13. Daughter and D.J. would
And [Daughter] would come and sleep overnight, sometimes stay an entire
Id. at 36. Paternal Grandmother testified that Son had been
Id. at 34-35. There was no suggestion that
Daughter lived with Paternal Grandmother at any time prior to January 10,
2014.
Son was in first grade at the time of the detention hearing. When
Grandmother
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5
On January 10, 2014, Mother took Son, Daughter, and D.J. to Paternal
be determined at a later
6
There is no suggestion in the record that the minor children ever lived with
Father or that he provided any level of care to them from May of 2012 until
Detention Hearing, 1/17/14, at 13, and on at least one occasion in 2013
evidenced by the traffic citation issued to Father for failing to have Daughter
properly restrained in the vehicle. N.T. Dependency Hearing, 1/22/14,
Exhibit 1.
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Id. at 40.
When Mother was asked if she ever told anyone at BCCYS that she had
say that I gave custody because I did not legally, you know, at that point
give custody, but I said I had told him before, yes, that [Son] most of the
Id. at 16-17.
Counsel for BCCYS noted:
I was attempting to [] argue why grandmother cannot care for
[Son] stay with grandmother, [Mother] was not there and she
urine screen on January 10th.
Other than that, our understanding he would stay [at Paternal
him back and
forth to school. So we would argue that . . . mother was the one
who had custody and that this whole façade or whatever you
want to call it was really just done in an effort to avoid [BCCYS]
from taking custody.
***
[E]ven if this Court does deem that grandmother was the one
that was caring for [Son], [] removal is still appropriate based on
the fact that grandmother was not protecting him from father,
was allowing unsupervised contact with father; that father was
still residing in the home; that grandmother was deemed an
unfit caretaker; that nothing [has] changed really since 2011;
that grandmother continues to be dishonest; that grandmother
was the whole part of the safety plan that she was supposed to
report if mother started using and step in and help the children.
N.T. Dependency Hearing, 1/22/14, at 9-11.
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As reflected in its opinion, the trial court considered
role in the care of the minor children at the time the trial court adjudicated
them dependent and as a resource for the minor children following that
adjudication. The court stated:
At these hearings, the Court looked closely at Paternal
Grandmother as a potential resource for the children and an
alternative to foster care. However, after close inspection, the
Court concluded that Paternal Grandmother was not an
appropriate caregiver. When the children were previously in
foster care, Paternal Grandmother had been denied as a kinship
resource. In fact, when the children were first placed in foster
care. One of the main concerns was that Paternal Grandmother
allowed Mother and Father to have unsupervised contact with
the children. This is particularly concerning in light of Paternal
from Mother and Father when they are under the influence. At
the detention hearing Mother testified that she informed Paternal
Grandmother of her relapse. Of course, Paternal Grandmother
testified to the contrary that Mother never said that she was
testimony credible. The record established that Mother was
exhibiting outward physical signs indicative of her drug use, that
Paternal Grandmother was aware that Mother had been taking
Suboxone, and that Mother was evasive when asked if she was
using. It was evident to this Court that Paternal Grandmother
either knew or should have known that Mother was using;
however, Paternal Grandmother did nothing to protect
-time care.
T.C.O. at 5-6 (references to notes of testimony and court documents
omitted).
17 detention hearing but also a January 13, 2014 adjudication from the
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Department of Public Welfare, denying Paternal Grandmother and Paternal
family placement resource. N.T. Dependency Hearing, 1/22/14, Exhibit 2.
The trial court concluded:
[T]he record contains sufficient evidence that the minor children
were without proper care and control necessary for their
physical, mental and emotional health. Both Mother and
risk. Father is not now, nor has he been for the last four (4)
[years], able to parent the minor children on a full-time basis.
Furthermore, the Court believes that ample evidence shows that
foster care is the only available placement to protect the minor
children.
T.C.O. at 6. We agree. Father does not suggest he provided proper care or
control for the minor children prior to the determination of dependency or
that he would be an appropriate resource going forward. Because the trial
court did not abuse its discretion in adjudicating the minor children
dependent pursuant to 42 Pa.C.S.A. § 6302, or in concluding that placement
of the minor children in foster care was best suited to the safety, protection
and physical, mental, and moral welfare of the minor children in accordance
wi
Orders of Adjudication and Disposition with respect to the minor children.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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