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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.F., MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.A., MOTHER :
:
:
:
:
: No. 816 EDA 2018
Appeal from the Order Entered February 9, 2018
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): CP-51-DP-0000243-2018
IN THE INTEREST OF: K.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.A., MOTHER :
:
:
:
:
: No. 821 EDA 2018
Appeal from the Order February 9, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000244-2018,
FID: 51-FN-316479-2009
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 26, 2018
K.A. (Mother) appeals from the order entered February 9, 2018, which
discharged the dependency petition filed by the Philadelphia Department of
Human Services (DHS), removed Khy.F. (born December 2005) and Kha.F.
(born August 2007) (collectively, Children) from her custody, and awarded
custody to B.F. (Father). We affirm.
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Prior to the commencement of the instant matter, Mother and Father
exercised a shared custody arrangement by court order of April 3, 2017. See
N.T., 2/9/18, at 12-13. Father, or paternal grandmother, picked Children up
from their after school program, had custody of Children until no later than
8:00 p.m., and dropped them off at Mother’s house, where they stayed until
it was time for school the next day. Id. at 12. On the weekends, Father had
custody of Children until Sunday before 8:00 p.m. Id.
DHS became involved with the family on December 13, 2017, after
receiving a General Protective Services (GPS) report.1 Id. at 1. Children went
to school and stated they had been beaten by Mother that morning, that they
did not know why they had been hit, and that they were afraid to return to
the home with Mother. Id. at 4-5. After meeting with DHS, Children stated
that Mother was mentally and physically abusive, took out her anger on them,
and had abused Children’s older siblings when they were young. Id. Children
further stated that this behavior has been going on since they were young,
with a frequency of about five times per month, and that they are not sure
why they are being disciplined. Id. at 11. Moreover, when asked whether
they had seen drugs or alcohol, Children stated that Mother “uses a pipe” and
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1 We note, initially, that many of the details in the trial court’s opinion are
taken wholesale from DHS’ petition for adjudication of dependency. This
petition was never stipulated to by Mother and never entered into evidence.
Accordingly, we base our procedural history solely upon the evidence
introduced at the hearing through testimony.
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has a lot of lighters. Id. at 10. There were no marks or bruises on Children
at that time. Id.
However, upon review, DHS determined that the GPS report was
founded, but that the Child Protective Services (CPS) report that it received
at the same time was unfounded. Id. at 6-7. Children were removed from
the home and placed with paternal grandmother with a safety plan. Id. at 5-
6.
Sean Callan, the DHS social worker assigned to the case, interviewed
Children. At first, he was unsure whether their accusations were credible. Id.
at 8. He changed his mind after receiving a letter from Mary Theresa
Fitzgerald, a behavioral therapist at Turning Points for Children, describing an
encounter between Mother and Children, which made her uncomfortable. Id.
at 8-9. The therapist likened Children’s behavior to someone suffering from
post-traumatic stress disorder. Id. at 9. Children stated they wanted to be
in the custody of Father. Id. at 13. Mr. Callan recommended that Children
be released to Father’s custody or care, noting that his home was appropriate.
Id.
On February 9, 2018, the court held a hearing on the petition. Mr. Callan
testified on behalf of DHS. Mother, represented by counsel, testified on her
own behalf. Children did not appear at the hearing and did not testify,
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although they were represented by James Martin, Esquire.2 Mr. Callan
testified to the facts as discussed above and additionally noted that Father
had appropriate housing, his wife had been cleared, and recommended that
custody be confirmed with Father. See id. at 2-14. Father testified he was
ready, willing, and able to take custody of Children. Id. at 28.
Mother testified that she had never hit her children and that she treats
them very well. Id. at 22. Mother also stated that she encountered Children’s
therapist with Children the week earlier, asked Children in front of the
therapist whether “mommy ever beat you” and that she recorded Children
saying “no.” Id. at 22-23. Mother denied using drugs. Id. at 25. On cross-
examination, DHS introduced testimony of Mother’s prior criminal history. Id.
at 25-28.
At the conclusion of the hearing, the court stated that it was concerned
with Ms. Fitzgerald’s assessment, Mother’s behavior of recording Children, her
criminal past, and Children’s statements that they are afraid to be with
Mother. Id. at 31-32. The court added that there was no dependency issue
and that Children should be returned to Father. Id. at 32.
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2 The order appointing Attorney Martin indicates that he was appointed to
serve in dual roles as a guardian ad litem, representing Children’s best
interests, and as legal counsel, representing their preferences. See Order,
2/5/18, at 1. As there appears to be no conflict between Children’s best and
legal interests, there is no issue with Attorney Martin’s dual roles. See In re
T.S., --- A.3d ----, at *10 (Pa. filed Aug. 22, 2018); see also In re Adoption
of L.B.M., 161 A.3d 172 (Pa. 2017).
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That same day, the trial court entered an order concluding that Children
were not dependent and dismissing the petition for dependency. See Order,
2/9/18, at 1. In the order, the court found that there was clear and convincing
evidence to substantiate the allegations against Mother. Id. Moreover, the
court found that to allow Children to remain in Mother’s home would be
contrary to Children’s welfare, and that it would be in Children’s best interest
to be removed from Mother’s home. Id. at 1-2. The order then granted
Father physical and legal custody of Children. Id. at 2.
On March 8, 2018, Mother contemporaneously filed a timely notice of
appeal and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).3
On appeal, Mother raises the following issue for our review:
Whether [t]he trial court erred and/or abused its discretion by
discharging the dependency petition and awarding custody to
[Father] where [Mother] had primary custody prior to the filing of
the dependency petition and did not believe that there were any
conditions which should have caused the court to transfer custody
of the children[.]
See Mother’s Brief at 5.
Although Mother claims that the trial court had no legal authority to
transfer custody from Mother to Father because it made no finding of
dependency, she acknowledges in her brief that Pennsylvania Supreme Court
precedent provides the trial court with this authority. Id. at 11-12 (citing In
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3 Mother initially pro se filed her notice and statement. On April 1, 2018,
Mother’s counsel filed a motion to supplement her statement, which this Court
granted on April 13, 2018. See Order, 4/13/18, at 1.
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re M.L., 757 A.2d 849, 849 (Pa. 2000) (holding that a child whose non-
custodial parent is ready, willing, and able to provide adequate care to the
child cannot be found dependent)). In spite of this precedent, Mother requests
that we reexamine this Pennsylvania Supreme Court decision based on
“changes to the law over the years.” Id. Mother further claims that she is a
competent parent who is able to care for Children. Id. at 10. She argues that
there was no corroboration of the allegations that she hit children, such as
bruises or markings. Id. Mother maintains that she and Father are
undergoing a custody dispute and that she believes Father persuaded Children
to live with him full time. Id.
With regard to dependency cases,
[t]he 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 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 N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an
abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
A dependent child is a child who:
(1) is 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, including evidence of the parent’s,
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guardian’s or other custodian’s use of alcohol or a controlled
substance that places the health, safety or welfare of the child at
risk;
(2) has been placed for care or adoption in violation of law;
(3) has been abandoned by his parents, guardian, or other
custodian;
(4) is without a parent, guardian, or legal custodian;
(5) while subject to compulsory school attendance is habitually
and without justification truant from school;
(6) has committed a specific act or acts of habitual disobedience
of the reasonable and lawful commands of his parent, guardian or
other custodian and who is ungovernable and found to be in need
of care, treatment or supervision;
(7) has committed a delinquent act or crime, other than a
summary offense, while under the age of ten years;
(8) has been formerly adjudicated dependent, and is under the
jurisdiction of the court, subject to its conditions or placements
and who commits an act which is defined as ungovernable in
paragraph (6);
(9) has been referred pursuant to section 6323 (relating to
informal adjustment), and who commits an act which is defined
as ungovernable in paragraph (6); or
(10) is born to a parent whose parental rights with regard to
another child have been involuntarily terminated under 23 Pa.C.S.
§ 2511 (relating to grounds for involuntary termination) within
three years immediately preceding the date of birth of the child
and conduct of the parent poses a risk to the health, safety or
welfare of the child.
See In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010); see also 42 Pa.C.S. §
6302. Here, the relevant concerns are whether a child is presently without
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such care or control, and whether such care or control are immediately
available. J.C., 5 A.3d at 289.
In M.L., our Supreme Court held that:
[t]he plain language of the statutory definition of a dependent
child compels the conclusion that a child is not dependent if the
child has a parent who is willing and able to provide proper care
to the child. When a court adjudges a child dependent, that court
then possesses the authority to place the child in the custody of a
relative or a public or private agency. Where a non-custodial
parent is available and willing to provide care to the child, such
power in the hands of the court is an unwarranted intrusion into
the family. Only where a child is truly lacking a parent, guardian
or legal custodian who can provide adequate care should we allow
our courts to exercise such authority. Accordingly, we hold that
where a non-custodial parent is ready, willing and able to
provide adequate care to a child, a court may not adjudge
that child dependent.
M.L., 757 A.2d at 851 (citation omitted and emphasis added); accord In
Interest of J.M., 166 A.3d 408, 415 (Pa. Super. 2017).
Here, the trial court concluded that Children were not safe in Mother’s
care based upon the GPS report, the testimony of Mr. Callan, the assessment
of Ms. Fitzgerald, and Mother’s own testimony. See N.T., 2/9/18, at 7-24,
31. In its findings, the court was concerned that Children were afraid to return
to Mother’s home, that Mother recorded Children in an attempt to prove that
she did not hit Children, and that Mother had a criminal past. See id. at 4-5,
22-23, 25-28. The court was also concerned with Ms. Fitzgerald’s assessment
regarding Mother’s interaction with Children. See id. 8-9. Ultimately, the
trial court determined that Father was ready, willing, and able to take custody
of Children. See id. at 13-14, 28, 32.
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Accordingly, we conclude that the trial court’s findings are supported by
competent evidence in the record and should not be disturbed. See N.A., 116
A.3d at 1148. Further, we find that the trial court did not abuse its discretion
in its determination that Children were not dependent as Father was ready,
willing, and able to care for them. See M.L., 757 A.2d at 851; see also See
Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480
(Pa. 2011) (noting that “the Superior Court must follow [the Supreme] Court’s
mandates, and it generally lacks the authority to determine that [the
Supreme] Court’s decisions are no longer controlling”).
Order affirmed.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/18
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