In the Interest of: D.S., Appeal of: S.C.

J-A29041-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 944 WDA 2019

Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000117-2019

IN THE INTEREST OF: H.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 945 WDA 2019

Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000119-2019

IN THE INTEREST OF: A.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
:
: No. 946 WDA 2019

Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000120-2019

IN THE INTEREST OF: F.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-A29041-19

:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
:
: No. 947 WDA 2019

Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): CP-02-DP-000121-2019

IN THE INTEREST OF: G.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.C., BIOLOGICAL :
MOTHER :
:
:
: No. 948 WDA 2019

Appeal from the Order Dated May 28, 2019
In the Court of Common Pleas of Allegheny County Family Court at
No(s): No. CP-02-DP-000122-2019

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 21, 2020

S.C. (Mother) and J.B. (Father) appeal1 from the Court of Common Pleas

of Allegheny County-Family Division (trial court) orders entered on May 28,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 While Mother and Father filed separate appeals, they filed identical briefs
raising the same issues related to the dependency adjudications. Therefore,
we address their arguments together and file an identical opinion in Father’s
appeals filed at 977-981 WDA 2019.

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2019, adjudicating their minor children, D.C., H.C., A.C., F.C. and G.C.

(collectively, the Children) dependent.2 They assert that the Children were

entitled to legal and best interests counsel, that the trial court abused its

discretion in admitting several pieces of evidence, and that the adjudications

of dependency were not supported by clear and convincing evidence. After

careful review, we affirm.

I.

We glean the following facts from the record. Mother is the biological

mother of H.C. (age 12), D.C. (age 8), A.C. (age 6), F.C. (age 4), and G.C.

(age 3).3 Father is the biological father of F.C. and G.C. and the stepfather to

the remaining children.4 Mother and Father are married and lived together

with the Children for several years prior to the proceedings in this matter.

In early 2019, law enforcement received a ChildLine report that D.C.

had alleged that Father had sexually abused him. This report was determined

____________________________________________

2 A separate order of dependency was entered for each child.

3 These were the Children’s ages at the time of the dependency hearings.
Mother has one other Child, D.B., who was found not to be dependent after
being placed in the care of his biological father. Additionally, the record
reveals that during the pendency of this case, Mother and Father were
expecting another child.

4 The trial court determined that Father stands in loco parentis to his non-
biological children. H.C., D.C. and A.C.’s biological father was present for the
dependency proceedings and is a participant in these appeals. At the
proceedings below, he stipulated to portions of the dependency petitions and
admitted that he could not presently take custody of his children.

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to be unfounded. However, a second ChildLine report was filed shortly

thereafter alleging that H.C. had disclosed years of sexual abuse by Father.

Law enforcement initiated an investigation into this report and took protective

custody of all of the Children, placing them with their maternal grandmother.

The Allegheny County Office of Children, Youth and Families (CYF) initiated

dependency proceedings. Following a Shelter Hearing, Mother and Father

moved into maternal grandmother’s home and maternal grandmother moved

into the family home with the Children.

All of the Children were forensically interviewed regarding the

allegations. In her interview, H.C. disclosed that Father had sexually abused

her from age six through ten. H.C. also stated that she had told Mother about

the abuse in 2017 when Father continued to reside with the family. In an

interview with a CYF investigator, H.C. stated that she had told Mother a year-

and-a-half prior that Father had touched her inappropriately. After she

disclosed the abuse to Mother, Mother and Father had a conversation with

H.C. in which they told her that these were serious allegations and that it was

a “big deal” to lie.

Following H.C.’s forensic interview, criminal charges were filed against

Father, which were pending at the time of the dependency hearings. None of

the other Children disclosed any instances of abuse in their forensic interviews.

Relevant to this appeal, H.C. did not testify at the dependency hearing nor did

CYF introduce the video recording of her forensic interview. Instead, Sergeant

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Eric Egli of the McCandless Police, Detective Jeffrey Gumkowski of the

Allegheny County Police, CYF caseworker Stephanie Schmidt, and forensic

interviewer Sarah Gluzman testified to the substance of H.C.’s interview. In

addition, the written reports describing H.C. and D.C.’s forensic interviews

were admitted into evidence.

Mother testified at the dependency hearing regarding the disclosure H.C.

made to her in 2017. She testified that in late 2017, she caught H.C., then

ten years old, typing a sexually explicit email on an old phone.5 Mother stated

that none of the children was permitted to use electronic devices and that H.C.

must have taken the phone from Father’s nightstand.6 Mother found nude

photos on the phone that H.C. had taken of herself that she believed H.C. had

intended to attach to the email.

When asked, H.C. initially told Mother that she was sending the email

to a boy from school. She later said that she was sending the email to a

classmate’s older brother. Mother continued to question her about the email,

and a few weeks later H.C. told Mother that Father had told her to send the

email and given her the email address, but that she did not know who the

recipient was. Mother testified that H.C. told her this while they were in the

____________________________________________

5 H.C. was allegedly answering sexual questions in the email, saying that she
liked to drink alcohol before sex to relax.

6Father testified that the phone was deactivated but he still used it to play
games.

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car but refused to talk about the allegation again. Mother further testified that

H.C. never told her about any physical sexual abuse.

Mother testified that after H.C. made this allegation, she immediately

spoke to Father and told him that H.C. had said that he told her to send the

email. Father denied the allegation, and he and Mother agreed that he would

never be alone with H.C. again. Father and Mother then had a discussion with

H.C. where Mother explained that she was making serious allegations that

could ruin lives. At that point, H.C. refused to talk about the email again.

Mother testified that she did not ask Father to leave the home, did not

report the events to law enforcement or CYF and did not seek any therapeutic

services for H.C. She did not report the email because she was concerned

that H.C. could be charged with distributing child pornography. Mother

testified that she never saw Father acting inappropriately with H.C. and she

did not believe that allegation because he never had the opportunity to be

alone with H.C. She also said that she and Father had announced a new

pregnancy a few days before H.C. made her disclosure and they believed that

H.C. was not happy about the change.

Mother also testified that she did not believe H.C.’s allegations against

Father were truthful and that H.C. had a history of lying. Mother and Father

moved forward with the process of having Father adopt his non-biological

children, including H.C., in 2018. They filed the adoption petition and petition

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to terminate the biological father’s parental rights in February 2019 after the

Shelter Hearing in this case had taken place.7

Based on these facts, the trial court adjudicated the Children dependent

and directed that they continue to reside with maternal grandmother. It

further ordered that Mother would be permitted to have liberal unsupervised

visits with all of the Children, including overnight visits once in-home services

were initiated. Father was ordered to have no contact with his non-biological

children and supervised contact only with his biological children.

Mother and Father simultaneously filed timely notices of appeal and

statements of errors complained of on appeal pursuant to Rule 1925, and the

trial court has filed a responsive opinion. Before addressing the merits of

Mother and Father’s challenge to dependency, we must address several

structural and evidentiary matters that go to that challenge.

II.

Mother and Father argue that the trial court committed a structural error

by not appointing a separate guardian ad litem (GAL) for H.C. and the

remaining children, as well as separate legal counsel for the children other

____________________________________________

7 Father also testified at the dependency hearing and denied all allegations of
abuse. He corroborated Mother’s testimony that after H.C.’s disclosure
regarding the email, he insisted that he never be left alone with H.C.

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than H.C.8 They argue that while H.C.’s legal and best interests may have

aligned, the other children’s legal and best interests may have conflicted with

H.C.’s.9

In a dependency proceeding pursuant to the Juvenile Act, the GAL is

specifically authorized to represent both the child’s best and legal interests.

42 Pa.C.S. § 6311(b) (“The [GAL] shall be charged with representation of the

legal interests and best interests of the child at every stage of the

proceedings.”). The GAL must “[e]xplain the proceedings to the child to the

extent appropriate given the child’s age, mental condition, and emotional

condition.” 42 Pa.C.S. § 6311(b)(8); Pa.R.J.C.P. 1154(8). The GAL must then

“[m]ake specific recommendations to the court relating to the appropriateness

and safety of the child’s placement and services necessary to address the

child’s needs and safety,” while also “[advising] the court of the child’s wishes

to the extent that they can be ascertained and present to the court whatever

evidence exists to support the child’s wishes.” 42 Pa.C.S. § 6311(b)(7), (9);

Pa.R.J.C.P. 1154(7), (9).

____________________________________________

8We review such a claim for an abuse of discretion. In re J.K.M., 191 A.3d
907, 910 (Pa. Super. 2018).

9A child’s legal interests “are synonymous with the child’s preferred outcome.”
In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (plurality). In
contrast, “‘[b]est interests’ denotes that a [GAL] is to express what the [GAL]
believes is best for the child’s care, protection, safety, and wholesome physical
and mental development regardless of whether the child agrees.” Id. at 174
n.2 (quoting Pa.R.J.C.P. 1154 cmt.).

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While the plain language of the statute allows for a GAL to represent a

child’s legal and best interests even when the two diverge, our Supreme Court

has suspended this provision and noted that such a divergence creates a

conflict of interest for the GAL. See In re Adoption of L.B.M., 161 A.3d 172,

175 n.4 (Pa. 2017) (plurality) (citing Pa.R.J.C.P. 1154 cmt). In such a case,

the child is entitled to separate legal interests counsel. Id.

In In re J.K.M., 191 A.3d 907, 914-15 (Pa. Super. 2018), we held that

when a sixteen-year-old child was competent to direct legal representation

and had clearly ascertainable legal interests that diverged from her best

interests in a dependency action, the trial court abused its discretion by failing

to appoint separate legal and best interests counsel. Significantly, the child

was old enough to be presumed competent and to articulate her wishes to

counsel and the court. Id. (citing Rosche v. McCoy, 156 A.2d 307, 309 (Pa.

1959)). However, we declined to hold that all conflicts require the

appointment of both a GAL and legal interests counsel. Id. at 915-16.

Here, the GAL explained to the trial court that she did not believe the

four younger children, whose ages ranged from three to eight years old, were

competent to direct representation of their legal interests.10 A team consisting

of the GAL and a child advocate specialist had met with the children to

____________________________________________

10Mother and Father concede that H.C.’s preferred outcome aligned with the
GAL’s recommendation for her best interests, so separate legal counsel was
unnecessary. See Briefs at 65-66.

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determine their legal interests, which the GAL then relayed to the trial court.

The GAL told the trial court that the children, excluding H.C., “all very much

would like their mother to move back home, and they do refer to [Father] as

their father.” R.R. 614a-15a. However, she went on to explain:

They have no idea what the allegations on the table are at all.
They don’t know what the safety concerns are at all. They can’t
appreciate or comprehend what’s going on because they don’t
have that information. And I’m not saying they should have it,
but for me to ask for legal counsel to be appointed for those
children, they would need to fully understand the situation, to not
only have the facts but have the ability to comprehend and be
competent to actually be able to make me adequately represent
them. I need somebody who can form an adequate and
reasonable position so that I can represent them based on what’s
going on, and my assessment of the kids is that they are not
competent. They do not know what’s going on. There’s been no
testimony that they have been clued in to this situation.

R.R. at 615a-16a. The GAL concluded that all of the Children had the same

best interests.

The GAL fulfilled her obligations to the Children under the statute and

the trial court did not abuse its discretion in declining to appoint legal interests

counsel for the younger four children. The statute specifically contemplates

that a GAL tailor her conversations with a child “to the extent appropriate

given the child’s age, mental condition, and emotional condition.” 42 Pa.C.S.

§ 6311(b)(8); Pa.R.J.C.P. 1154(8). Here, the GAL declined to explain the

complete nature of the proceedings to the younger Children because she

believed that telling them about H.C.’s allegations against Father would create

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more trauma.11 The younger Children, who were three to eight years old,

were considerably younger than the child at issue in J.K.M. and did not have

the same presumption of competency to direct legal representation. Even so,

the GAL explained to the court that the younger Children did want Mother to

live with them again and thought of Father as their father.

Thus, the GAL correctly balanced her duty to represent the Children’s

best interests, her duty to convey their preference to the court, and her duty

to discuss the nature of the proceedings with the Children as appropriate to

their ages, mental conditions and emotional conditions. The younger

Children’s best interests aligned with the best and legal interests of H.C., who

was the only child with a full understanding of the history that led to the

Children’s placement. Consequently, the trial court did not abuse its discretion

in declining to appoint separate legal interests counsel for the younger

Children.

III.

Next, we address Mother and Father’s challenges to several of the trial

court’s evidentiary rulings.12 They challenge the admission of hearsay

____________________________________________

11No party argues that the younger four children should have been informed
about the full details of their removal from their parents and placement with
maternal grandmother.

12“Our standard of review for evidentiary rulings by the trial court is very
narrow. In general, we may reverse only for an abuse of discretion or an error

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statements by several witnesses who recounted H.C.’s disclosures of abuse.

They also challenge the admission of Sergeant Egli’s opinion testimony

regarding H.C.’s credibility and contend that H.C.’s disclosures in the forensic

interview were improperly admitted in violation of the best evidence rule. We

address each of these arguments in turn.

A.

H.C. did not testify at the dependency hearing; rather, CYF presented

testimony from several witnesses who recounted H.C.’s various allegations of

abuse by Father and her 2017 disclosure to Mother. First, Sergeant Egli

testified that he observed H.C.’s forensic interview and H.C. alleged that

Father had subjected her to numerous acts of sexual abuse when she was six

to ten years old. R.R. at 204a-07a. He also confirmed that H.C. stated that

she told Mother about the abuse in the past, but he did not recall whether she

described Mother’s reaction to the disclosure. R.R. at 209a. Detective

Gumkowski, who viewed a video of H.C.’s forensic interview, also testified to

these same statements. R.R. at 226a-28a. He further testified that H.C. said

that when she made the initial disclosure to Mother in 2017, Mother and Father

confronted her about the allegations and told her it was a “big deal” to lie.

R.R. at 228a. CYF caseworker Schmidt and forensic interviewer Gluzman

____________________________________________

of law.” Cruz v. Northeastern Hospital, 801 A.2d 602, 610 (Pa. Super.
2002) (citation omitted).

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similarly testified about H.C.’s statements in the forensic interview. R.R.

250a-51a, 257a-58a, 309a-11a. In addition, the written reports describing

H.C. and D.C.’s forensic interviews were admitted into evidence. Mother and

Father objected to the admission of these statements because they were

hearsay.

This court recently addressed a similar argument in In re I.R.R., 208

A.3d 514 (Pa. Super. 2019). There, the child was adjudicated dependent after

she disclosed that she had been sexually abused by her father and that she

had told her mother about the abuse a year prior, but her mother did not

believe the allegations. Id. at 516. The child did not testify at the dependency

proceedings, but the trial court admitted into evidence a forensic interview

report of the allegations, a report from Child Protective Services (CPS), and

the testimony of a CPS caseworker. Id. at 517. We held that the statements

were properly admitted pursuant to the state of mind exception to the hearsay

rule: “Testimony as to what a child tells other people is admissible in order

to establish that child’s mental state at the time he or she made the comment,

particularly for purposes of identifying the child’s needs for therapy and

treatment.” Id. at 519 (citing In re Adoption of R.K.Y., 72 A.3d 669, 677

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(Pa. Super. 2013) (internal quotations omitted)). Thus, the hearsay

statements were properly admitted for non-substantive purposes. Id.13

Consistent with I.R.R., H.C.’s statements in the forensic interview were

properly admitted as non-substantive evidence of her state of mind and need

for immediate treatment. As discussed infra, CYF petitioned for dependency

and the trial court granted the petitions based on Father’s criminal case and

Mother’s reaction to H.C.’s disclosure and inappropriate sexual behaviors in

2017. The hearsay statements at the hearing concerned both H.C.’s

allegations of abuse against Father and her earlier attempt to talk to Mother

about the allegations. Regardless of their truth or falsity, the statements were

relevant and admissible to demonstrate H.C.’s state of mind and ongoing need

for treatment, as well as Mother’s inaction when confronted with the

allegations. The trial court did not abuse its discretion in admitting these

statements for these non-substantive purposes.

____________________________________________

13 We reversed the adjudication of dependency and remanded for a new
hearing in I.R.R. because, while the statements were properly admitted for
non-substantive purposes, the trial court improperly relied on the truth of the
matter asserted in the statements to make a specific factual finding that the
child had been the subject of sexual abuse. Id. at 521. That factual finding
was the basis for the child’s dependency. Id. Here, however, CYF did not ask
the trial court to make a factual finding that H.C. (or any of the Children) had
been subjected to abuse. As explained in Part IV, infra, the finding of
dependency in this case was instead based on Mother’s own testimony and
her failure to protect and seek services for H.C. once she disclosed abuse and
exhibited inappropriate sexual behaviors.

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B.

Next, Mother and Father argue that the trial court erred in allowing

Sergeant Egli to offer his opinion regarding whether H.C.’s disclosures in her

forensic interview were credible. Sergeant Egli testified that based on

witnessing over forty forensic interviews in his career and his six years of

specialized experience investigating crimes against children, he believed that

H.C. was credible.14 R.R. at 204a-06a.

Expert witnesses are precluded under well-settled law from offering an

opinion regarding a witness’s credibility, as the fact-finder is the sole arbiter

of credibility. Commonwealth v. Maconeghy, 171 A.3d 707, 778-79 (Pa.

2017). In a dependency proceeding, it is the trial court’s duty to make

determinations regarding the credibility of witnesses. In re T.M.A., 207 A.3d

375, 380 (Pa. Super. 2019) (citation omitted). This made the admission of

Sergeant Egli’s opinion regarding H.C.’s credibility improper.

____________________________________________

14It is unclear from the record whether CYF intended to offer Sergeant Egli as
an expert, and CYF did not address this point in its brief. Nevertheless, it
appears from the record that the trial court treated this as expert testimony,
as it requested that CYF lay a foundation regarding Sergeant Egli’s
qualifications and asked counsel if they would like to voir dire Sergeant Egli
on that point before admitting the testimony. R.R. at 204a-06a. Because
Sergeant Egli relied on his history, training and experience as a sexual assault
investigator in offering this opinion, it appears that it was based on
“specialized knowledge [] beyond that possessed by the average layperson.”
See Pa.R.E. 702(a), 701(c). Regardless of whether this constituted expert
testimony, however, we find the admission harmless, as discussed infra.

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Nevertheless, the admission of this testimony was harmless. 15 As

explained in Part IV, infra, the truth or falsity of H.C.’s statements in the

forensic interview is immaterial to the adjudication of dependency.

Dependency was based on the failure to respond and seek treatment for H.C.’s

inappropriate sexual behaviors and her initial disclosure in 2017. Sergeant

Egli’s opinion regarding the credibility of H.C.’s allegations in 2019 does not

bear on this basis for dependency.

C.

Third, Mother and Father argue that the trial court abused its discretion

in admitting testimony describing the contents of H.C.’s forensic interview,

which was recorded, in violation of the best evidence rule. See Pa.R.E. 1002

(“An original writing, recording, or photograph is required in order to prove its

content. . . .”). They argue that the best evidence rule required that CYF

admit the full video of H.C.’s forensic interview into evidence rather than the

testimony of individuals who had viewed the video.

Forensic interviewer Gluzman testified at the dependency hearing and

described, based on her personal knowledge and recollection of the interview,

the disclosures of abuse H.C. made during the interview. R.R. at 309a-12a.

____________________________________________

15 An error is not harmless and the appellant is entitled to a new hearing if,
“in light of the record as a whole, an erroneous evidentiary ruling could
potentially have affected the decision.” In re A.J.R.H., 188 A.3d 1157, 1170
(Pa. 2018) (addressing harmless error in the context of a termination of
parental rights proceeding).

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Further, Sergeant Egli observed the interview through a window and described

H.C.’s disclosures based on his observations. R.R. at 204a. Mother and Father

did not object to this testimony on best evidence grounds. Gluzman and

Sergeant Egli did not provide a description of the video; they merely recounted

their memories of the interview as they had observed it. See

Commonwealth v. Steward, 762 A.2d 721, 723 (Pa. Super. 2000) (holding

that videotape was not necessary as “best evidence” of events when an

eyewitness to the occurrence testified based on his own personal

observations). Because this testimony was properly admitted, any error in

the admission of the testimony of Detective Gumkowski and caseworker

Schmidt on best evidence grounds was harmless.16 That testimony was simply

duplicative of the properly admitted testimony of Gluzman and Sergeant Egli.

Now to the merits of the dependency adjudication.

IV.

A.

Mother and Father argue that the trial court’s determination that the

Children are dependent was not supported by clear and convincing evidence.17

____________________________________________

16 We again note that the truth or falsity of H.C.’s disclosures in the 2019
forensic interview were not the basis for the adjudication of dependency.

17 In dependency proceedings, we review the juvenile court’s order pursuant
to an abuse of discretion standard of review. In the Interest of H.K., 172
A.3d 71, 74 (Pa. Super. 2017). As such, we must accept the court’s findings
of fact and credibility determinations if the record supports them, but we need

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The Juvenile Act governs dependency proceedings. See 42 Pa.C.S. § 6301-

6375. The Act permits a court to adjudicate a child dependent if it finds that

he or she meets the requirements of one of ten listed definitions. The Act

defines “dependent child” as follows, in relevant part:

“Dependent child.” 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[.]

42 Pa.C.S. § 6302(1).

In In re G.T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified the

definition of “dependent child” further.

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.

____________________________________________

not accept the court’s inferences or conclusions of law. Id. “[W]e accord
great weight to the [juvenile] court’s fact-finding function because the
[juvenile] court is in the best position to observe and rule on the credibility of
the parties and witnesses.” In re T.M.A., 207 A.3d 375, 380 (Pa. Super.
2019) (citation omitted; alterations in original). “‘An abuse of discretion is
not merely an error of judgment, but is, inter alia, a manifestly unreasonable
judgment or a misapplication of law.’” In re A.T., 81 A.3d 933, 936 (Pa.
Super. 2013) (quoting In re J.R., 875 A.2d 1111, 1114 (Pa. Super. 2005)).

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Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5

A.3d 284, 289 (Pa. Super. 2010). As such, “the dependency of a child is not

determined ‘as to’ a particular person” but rather hinges on whether the child

meets the statutory definition of dependency. In re J.C., supra. In making

that determination, we address whether Mother or Father was available to

provide proper parental care and control. Additionally, we note that “[t]he

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 G.T., supra.

This court has previously affirmed adjudications of dependency when

one parent learned of sexual abuse by another parent but allowed the other

parent to remain in the home. In re M.W., 842 A.2d 425, 429-30 (Pa. Super.

2004). A child can be found dependent even without a factual finding by the

trial court that the child was the subject of abuse. In re R.P., 957 A.2d 1205,

1212-13 (Pa. Super. 2008) (citation omitted). A child may be found

dependent if her parent’s conduct “places the health, safety or welfare of the

child at risk,” even through failure to protect the child or seek treatment to

maintain the child’s physical or emotional welfare. Id. at 1213 (citing 42

Pa.C.S. § 6302(1)).

B.

In this case, the dependency petitions were not based on the truth of

any of H.C.’s disclosures. Rather, as testified to by caseworker Schmidt, the

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“concerns would be that when [H.C.] stated that [Father] was inappropriately

touching her, [Mother] failed to protect [H.C.], she failed to get proper

services for [H.C.], and she failed to protect her other children in the event

[Father] could or could not be causing them harm as well.” R.R. at 293a-94a.

As a result, CYF contends that all of the Children were lacking proper care and

control because Mother had failed or refused to protect them when confronted

with the possibility that her husband posed a threat. CYF argues that, at

minimum, H.C.’s sexual behaviors were inappropriate for her young age and

should have prompted Mother to seek therapy or other treatment for H.C. to

determine the cause of the behaviors. The record contains clear and

convincing evidence to support these bases for dependency.18

Mother’s own testimony provided clear and convincing evidence to

support CYF’s allegations of dependency. While Mother denied that H.C. had

ever disclosed physical sexual abuse by Father, she did admit that H.C., at ten

years old, had taken nude photographs of herself on a cell phone, wrote an

email including sexually explicit content, and seemed to intend to attach the

photographs to the email. These behaviors alone, given H.C.’s young age,

should have prompted Mother to seek treatment for H.C.

____________________________________________

18Father and Mother primarily argue that the Children should not have been
adjudicated dependent because, even if Father was not able to provide them
with care and control due to the pending criminal charges, Mother was
available and capable of providing that care and control. We focus much of
our analysis on this argument.

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When questioned, H.C. eventually stated that Father had told her to

send the email. According to Mother’s own testimony, she and Father together

confronted H.C. about the allegation, emphasizing that she should not lie

about the matter. She did not ask Father to leave the house and instead

merely agreed that Father should not be alone with H.C. in the future, so as

to prevent further allegations. At the dependency hearing, Mother expressed

reservations about H.C.’s truthfulness. She admitted that she did not seek a

forensic interview, assistance from law enforcement or any type of therapy for

H.C. following this disclosure. She did not take steps to address or determine

the cause of H.C.’s age-inappropriate sexual behaviors. Regardless of the

veracity of H.C.’s disclosure, her behaviors clearly revealed a strong need for

support and services that Mother failed to provide. Mother’s failure to take

appropriate action in response to H.C.’s disclosure was clear and convincing

evidence that she was unable to provide care and control to the Children if it

would jeopardize her relationship with Father.

Mother also insisted that Father had never been alone with H.C. in the

year-and-a-half that had passed between H.C.’s initial disclosure and the

dependency proceedings. However, the trial court found this testimony

incredible and we are bound by that credibility determination. In re M.W.,

supra, at 428 (“[W]e will accept those factual findings of the trial court that

are supported by the record because the trial judge is in the best position to

observe the witnesses and evaluate their credibility. We accord great weight

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to the trial judge’s credibility determinations.”). Further, this argument

neglects to acknowledge that Mother still allowed H.C. to be in contact with

Father on a daily basis in the home after making her disclosure, even if the

contact was supervised.

Despite the very serious allegations H.C. had made against Father,

Mother and Father proceeded to file petitions to terminate the parental rights

of her biological father so that Father could adopt H.C., D.C. and A.C. They

took this step after the Shelter Care hearing in this case when all Children

were in protective custody and well after Mother became aware of the full

extent of H.C.’s allegations against Father. In addition, Mother continued to

reside with Father while the dependency and criminal proceedings were

ongoing despite the no-contact order that would have prevented the Children

from visiting the home while Father was present.

Mother’s actions show that she did not take seriously H.C.’s mental

health and need for therapy or treatment or her obligation to protect H.C.

when she was experiencing distress. Her reaction to the disclosures further

casts doubt on Mother’s ability to provide any of the Children with proper care

and control if it interfered with her relationship with Father. The truth or falsity

of H.C.’s allegations are ultimately irrelevant to the trial court’s determination

that Mother had consciously failed to provide care and control for her child

when she made serious allegations of abuse against Father and was exhibiting

inappropriate sexual behaviors.

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Father’s pending criminal charges also prevented him from providing the

Children with proper care and control.19 Due to the nature of the charges that

had been filed against him, the criminal court entered a no-contact order

prohibiting Father from having any contact with his non-biological children.

As a result, Father was prevented by court order from providing H.C., D.C. or

A.C. with proper care and control. Moreover, his biological children continued

to reside in the same home with H.C., D.C. and A.C. Given the no-contact

order and the nature of the pending criminal charges, which had proceeded

past the preliminary hearing stage at the time of the dependency adjudication,

the evidence was clear and convincing that Father was also incapable of

providing care and control to any of the Children.

Finally, Mother and Father contend that the trial court abused its

discretion in adjudicating the Children dependent based on “prognostic

evidence” or “evidence that predicts a likelihood of unknown future harm

rather than actual past harm.” Briefs at 43. They maintain that there is no

evidence that the Children, particularly those other than H.C., were ever

____________________________________________

19 At oral argument, Father provided further facts regarding the current status
of his criminal case. Because these facts were not available to the trial court
at the time of the adjudication of dependency, they are not properly part of
the record on appeal and we may not consider them. See Ritter v. Ritter,
518 A.2d 319, 323 (Pa. Super. 1986). Father may present this information
for the trial court’s consideration in any future review hearings.

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subjected to any abuse or were exposed to any risk of harm. It is uncontested

that H.C. was the only child to disclose abuse during a forensic interview. 20

Again, we note that dependency “does not require proof that the parent

has committed or condoned abuse, but merely evidence that the child is

without proper parental care.” In re R.P., supra, at 1211. “[A]cts and

omissions of a parent must weigh equally since parental duty includes

protection of a child from the harm others may inflict.” Id. at 1212. While a

child may not be found dependent merely because his or her sibling was

adjudicated dependent, the sibling’s adjudication may be relevant to the

extent that it shows that the other children are also without proper parental

care and control. In re M.W., supra, at 429. A parent’s inability to provide

care and control to one child may evidence a genuine risk to the physical,

mental and emotional health of all of the parent’s children. Id.

Here, there was no substantive evidence of abuse suffered by the

Children. However, Mother exhibited a pattern of behavior wherein she

disregarded serious allegations made by H.C. and D.C., failed to investigate

them, and failed to seek treatment when the two children exhibited

vulnerability. Again, the crux of the dependency did not depend on the truth

____________________________________________

20 While there was a ChildLine report alleging that D.C. had said his “father”
subjected him to sexual abuse, this report was determined to be unfounded.
Nevertheless, we note that upon being informed of this report, Mother said
she did not believe the allegation was true and did not think a forensic
interview was necessary. R.R. at 202a, 210a-11a.

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or falsity of the allegations made by H.C. or D.C. Dependency was based on

the failure to react appropriately to the disclosures and to H.C.’s inappropriate

sexual behaviors in 2017. On two occasions, Mother was unwilling to

investigate allegations, seek therapy and protect the children from potential

harm when they made statements accusing Father of sexual abuse. Instead,

she chose to prioritize maintaining her relationship with Father over seeking

help for her Children.

The trial court’s finding that the Children were without proper parental

care and control was not based on hypothetical prognostic evidence that they

may in the future be subjected to abuse. The finding was based on a pattern

of failing to protect and seek treatment for the Children when confronted with

disturbing allegations and age-inappropriate behavior. The record reveals

clear and convincing evidence that no parent was immediately available to

support the Children’s mental and emotional health in this way.

Accordingly, we conclude that there was clear and convincing evidence

to support dependency.

Orders affirmed.

President Judge Emeritus Bender joins the memorandum.

Judge Kunselman files a concurring/dissenting memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/21/2020

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