J-A24012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: D.L., MOTHER :
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:
:
: No. 535 WDA 2020
Appeal from the Order Entered April 15, 2020
In the Court of Common Pleas of Beaver County Juvenile Division at
No(s): CP-04-DP-0000014-2020
IN THE INTEREST OF: MK. L., : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.L., MOTHER :
:
:
:
: No. 536 WDA 2020
Appeal from the Order Entered April 15, 2020
In the Court of Common Pleas of Beaver County Juvenile Division at
No(s): CP-04-DP-0000013-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 15, 2020
D.L. (“Mother”) appeals from the orders of disposition, entered on April
15, 2020, in which the trial court adjudicated dependent her two children, P.L.
(born in February of 2020) and MK.L. (born in June of 2016) (collectively
“Children”). We affirm.
The juvenile court summarized the facts and procedural history of this
case as follows:
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On March 16, 2020, Beaver County Children and Youth
Services (“BCCYS” [or “Agency”]) filed [p]etitions for the
[a]djudication of [d]ependency for the minor children, MK.L., age
3 years, and P.L., age 2 months (collectively, “Children”) under 42
Pa.C.S.[] § 6302(1)[,] alleging that [] Children were without
proper care and control. A [s]helter [c]are [h]earing for each child
was held on March 17, 2020. That [s]helter [c]are [h]earing was
held after [C]hildren were removed from the care of … [M]other
and placed in the care of a family and [a] non-family kinship
caregiver by [e]mergency [o]rder. The parties agreed to schedule
the [a]djudication [h]earings to a date beyond ten days of the
[s]helter [c]are hearing to accommodate [M]other's request due to
her admission into an inpatient drug and alcohol treatment facility.
The [a]djudication [h]earings for MK.L. and P.L. were held
simultaneously, on April 13, 2020. BCCYS’s [p]etitions also
requested the continued placement of [] Children, who are the
subject of this appeal, MK.L. and P.L., outside the home of
[Mother].
BCCYS provided notice to the biological [M]other, D.L.;
biological father of MK.L., J.B.; and biological father of P.L., Q.S.
Notice of the [p]etitions for the [a]djudication of [d]ependency
hearings for each Child was sent to their respective biological
father’s last known address that was available to BCCYS at the time
of filing the [p]etitions for the [a]djudication of [d]ependency.
BCCYS also made phone contact with J.B., MK.L.’s biological father.
J.B. … advised BCCYS that he would not participate in the hearing
and declined to acknowledge MK.L. as his biological child. The
respective biological fathers for each child have not been involved
in the lives of either of the Children.
The following parties participated in the [h]earing via
telephone pursuant to the [c]ourt’s procedure at the time due to
the restrictions on in[-]person court hearings due to the COVID-19
pandemic: biological [M]other, D.L.; Attorney Nicole Tesla,
[c]ounsel for biological [M]other; Attorney Dana Kwidis, [c]ounsel
for BCCYS; and Attorney Tiffany York, Guardian Ad Litem (“GAL”)
for both Children.
Neither Child’s biological father participated in the hearing
and the [a]djudication [h]earing was held in their absence after a
finding was made that each Father had notice of the [h]earing.
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After a full hearing on the merits, this [c]ourt found that
there was clear and convincing evidence to adjudicate the minors
as dependent children and entered decrees to that effect on April
15, 2020. Findings of fact were made on the record at [the] time
of the [a]djudication [h]earing and additional findings of fact in
support of the [a]djudication of [d]ependency were included in the
written [a]djudication and [d]isposition [o]rder of April 15, 2020.
At the [h]earing, BCCYS offered the testimony of BCCYS
protective care caseworker, Sue Willy[,] and clinical therapist,
Michael Goodwin. Mother testified at the [a]djudication [h]earing.
Mother also offered the testimony of her aunt, [N.T.,] and[]
Mother’s current treating therapist, Joshua Curry.
The gist of the allegation against Mother is that BCCYS
became involved with the family at the time MK.L. was born. At
the time of his birth, MK.L. was born premature at just thirty-three
(33) weeks gestation and tested positive for [m]arijuana. At that
time, BCCYS opened a case with the family to provide general
protective services and implemented Project Star Intensive
services to assist Mother with attending appointments related to
drug and alcohol treatment, WIC and housing. Mother was initially
cooperative with BCCYS. She completed a drug and alcohol
assessment, but was inconsistent with the recommended
treatment for drug and alcohol and mental health. Thereafter,
Mother gave birth to two (2) additional children that are not the
subject of the instant action. Both of those children were born
prematurely, tested positive for drugs at the time of their births,
and required extended hospital stays following their respective
births. Both of those children do not currently reside with Mother.
Then on February 22, 2020, Mother gave birth to P.L., a few
weeks premature.[1] P.L. tested positive for cocaine and marijuana
at the time of his birth and required an extended hospital stay
following his birth due to issues of bradycardia and some periods
of apnea.
By the time that [M]other gave birth to P.L. [in] February []
2020, the Agency had been involved with [M]other and her family
on an ongoing basis for three and one-half (3½) years. In the
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1P.L. is Mother’s eighth child. The six children, other than MK.L. and P.L.,
are not subject to this proceeding.
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months preceding the filing of the [d]ependency petitions, the
Agency, through caseworker Willy, intensified the efforts to find
housing and get drug and alcohol treatment for [M]other. In
January, 2020, the Agency made arrangements to have [] Mother
interview with the Harmony House, a local facility that provides
housing for recovering addicts while allowing the children to reside
with the parents at the facility. At the interview for Harmony
House, Mother self-admitted to recent use of cocaine and she was
thus disqualified from admission into Harmony House. []
[M]other’s use of cocaine, as admitted by her at the Harmony
House interview, occurred while she was pregnant with P.L.
The Agency also unsuccessfully attempted to get housing for
Mother with Beaver County Housing Authority and another Beaver
County resource, Cornerstone. These efforts were unsuccessful.
At the time of the [a]djudication hearing, Mother was residing at
the home of her aunt, [N.T.], in McKees Rocks. [N.T.’s] children
also reside in that home and a sister of [] [M]other also resides at
that home. [] Mother’s sister[,] who resides at the McKees Rocks
home with Mother[,] is raising another biological child of [] Mother
[pursuant to] an informal arrangement.
After P.L. was born, the Agency and Mother were working on
a plan to have [M]other admitted to an inpatient drug and alcohol
treatment facility. Eventually, [M]other settled on FamilyLinks, an
inpatient facility that would have eventually allowed [] [C]hildren
to reside at that facility with Mother. On March 20, 2020, Mother
was evaluated and admitted into FamilyLinks, a four (4) to six (6)
month inpatient treatment program to address her mental health
and drug and alcohol treatment. She left that facility against
medical advice sixteen (16) days later, on April 5, 2020. Even
though FamilyLinks offered the possibility of stable housing in a
setting [where] [M]other could get the treatment to address her
drug addiction[,] which resulted in her last four children being born
with drugs in their system, Mother left the facility to return to an
unstable housing situation from where she could continue her drug
use.
BCCYS throughout their involvement with the family has
continuously attempted to get Mother to follow through with
mental health and drug and alcohol treatment. Throughout the
time BCCYS has been involved with the family, Mother’s housing
situation has been inconsistent at best. Mother has been evicted
from multiple apartments, has moved in and out of residences of
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family members and friends, and has even experienced periods of
homelessness. Mother is currently in active addiction, as she has
tested positive for drugs or admitted that she would test positive
for drugs on at least four (4) occasions since January of 2020.
Mother is also a victim of domestic abuse by the father of one [of]
her other children.
Mother’s drug use has also impeded her efforts to start and
engage in mental health treatment. She is required to undergo a
drug and alcohol evaluation for probation that she is currently
serving in Beaver County and only the involvement of the BCCYS
caseworker in arranging an evaluation may avoid a probation
violation for failure to comply with the mental health directives.
Mother conceded that she is diagnosed with bipolar disorder and
personality disorder. Yet, Mother specifically testified that she still
was not addressing her mental health needs during the early
months of 2020. Further, Mother, against medical advice, once
again turned her back on mental health treatment that she
admitted to needing by leaving the course of treatment that she
started at FamilyLinks on March 20, 2020.
Trial Court Opinion (TCO), 6/1/20, at 1-6.
In addition to this extensive discussion of the facts and procedural
history of this matter, the court also included in its opinion the findings and
conclusions it reached and stated on the record at the end of the April 13,
2020 hearing. The court further provided a statement of additional findings it
provided in its adjudication order, dated April 15, 2020. See TCO at 7-10.
These findings include the court’s credibility determination. Namely, it stated
that Sue Willy, the Agency’s caseworker, was credible, basing this on the more
than three-year relationship Ms. Willy had with Mother. However, the court
did not find the testimony of Mother or her aunt, N.T., to be credible, i.e., the
court did not believe that Mother was not actively using drugs. The court also
noted that due to the Covid-19 pandemic, the hearing took place by telephone,
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therefore, preventing the court from observing Mother at the time she
testified. Additionally, the court stated that “[t]he level of care assessment
determination of Joshua John Curry[, Mother’s treating therapist,] is not
accepted as credible and that part of his testimony is not found to be credible.”
TCO at 9 (#5). Thus, on April 15, 2020, the disposition orders were issued
by the court that concluded that Children were dependent.
Mother filed timely notices of appeal and concise statements of errors
complained of on appeal. She raises the following one issue for our review:
Whether the [t]rial [c]ourt erred in adjudicating the minor children
dependent when there was insufficient evidence presented in
support of a finding that the minor children were without proper
care and control, subsistence, education as required by law, or
other care or control necessary for [their] physical mental or
emotional health, or morals[?]
Mother’s brief at 6.
The arguments Mother presents in her brief are essentially challenges
to the sufficiency of the evidence to support the trial court’s determinations.
In particular, Mother asserts that the trial court “utilized its observations and
not facts presented as evidence….” Id. at 17. Thus, she complains that the
court erred in finding clear and convincing evidence that Children were without
proper care and control. Id. at 19. Specifically, with regard to Mr. Curry’s
testimony, Mother contends that his testimony was credible because he has
five board certifications in Pennsylvania, and that he stated that despite her
leaving inpatient treatment, she could participate as an outpatient and was in
compliance with her treatment. Mother further asserted that she had stable
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housing, having lived at her present residence since January of 2020. Mother
also mentions that she has contact with her six other children and that no
protective order is in place relating to those children. She also complains that
the Agency’s testimony was contradictory, specifically pointing out that the
testimony by the FamilyLink’s counselor was not credible because that person
had spent little time in her presence.
The Pennsylvania Supreme Court has set forth our standard of review
in a dependency case as follows.
“[T]he standard of review in dependency cases requires an
appellate court to accept 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
lower court’s inferences or conclusions of law.” In re R.J.T., 608
Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for abuse
of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Section 6302 of the Juvenile Act defines a “dependent child” as [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.
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified the
definition of “dependent child” further:
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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.
Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5
A.3d 284, 289 (Pa. Super. 2010). 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.” G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the statutory
definition by clear and convincing evidence. If the court finds that
the child is dependent, then the court may make an appropriate
disposition of the child to protect the child’s physical, mental and
moral welfare, including allowing the child to remain with the
parents subject to supervision, transferring temporary legal
custody to a relative or public agency, or transferring custody to
the juvenile court of another state. 42 Pa.C.S. § 6351(a).
Id. at 617.
The trial court here found clear and convincing evidence that the Agency
had met its burden of proof. In response to Mother’s allegations of error, the
trial court stated:
In the instant case, the [c]ourt found clear and convincing
evidence was presented that [] Children were without proper
parental care and that proper parental care was not immediately
available for either child. [] Children’s respective Fathers refused
to participate in the dependency proceedings or provide any level
of care for their respective Child. Mother was found to be still in
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active addiction at the time of the [d]ependency [h]earing and, by
her conduct in continuing to use drugs through four recent
pregnancies and the early days of life of P.L., refused to
acknowledge the necessity and importance of maintaining her
sobriety.
Mother’s housing situation at the time of the hearing was
not stable and has been exceedingly inconsistent over the course
of time in which BCCYS has been involved with the [f]amily. At
the time of the [h]earing, Mother was not on the lease at the
house in which she indicated to the [c]ourt was her current place
of residence. The house in which she was residing at the time of
the [h]earing was a house that she has a history of frequently
moving in and out of and where there is active drug use in the
home.
Furthermore, Mother tested positive for illegal substances at
the time of birth of both Children at issue in the instant action as
well as at the time of the birth of two (2) other children not the
subject of this instant action. All four (4) of the most recent
children born of Mother tested positive for illegal substances at
the time of their respective births, were born prematurely, and
required extensive medical treatment following their respective
births. The most recent of which was at the birth of P.L. on
February [] 2020.
The testimony provided by Mother was not credible and was
highly inconsistent throughout. Mother presented testimony of
three (3) witnesses during the hearing. Mother’s current
outpatient drug and alcohol therapist, Joshua John Curry, testified
regarding his interactions with Mother and the treatment h[e] is
providing. Mr. Curry at the time of the hearing had been treating
Mother for ten (10) days. Mr. Curry’s initial interaction with
Mother occurred during the time when she was a patient at
FamilyLinks and continued after she left that facility against
medical advice. At the time of the [h]earing, Mr. Curry had met
with Mother for a total of nine (9) hours over that time period.
Mr. Curry’s first interaction with Mother occurred during a group
therapy session at the inpatient facility. Following that group
therapy session at the inpatient facility, Mr. Curry again met with
Mother on April 8, 2020[,] and performed his own independent
reevaluation of Mother. Mr. Curry’s opinion was that Mother was
in need of outpatient care as opposed to the inpatient care
recommended by the intake specialist at FamilyLinks of March 20,
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2020. Mr. Curry determined that Mother needed outpatient care
with weekly sessions and that he could provide the level of care
necessary. Mr. Curry indicated that the information used to make
this determination of the level of care necessary for Mother was
based on Mother self-reporting her past drug use, personal history
and birth of her most recent child, P.L.[,] with drugs in his system.
Mother did not report to Mr. Curry that she had given birth to four
(4) children who tested positive for drugs at birth. Mr. Curry
acknowledged there was indeed a possibility that Mother’s
responses to the assessment were not truthful. Mother was never
drug tested by Mr. Curry to determine if she was in fact abstaining
from drug use. Mr. Curry relied on Mother’s reports to him that
she was abstaining from drug use. The [c]ourt found the
testimony of Mr. Curry with regard to his assessment of Mother
wherein he determined Mother’s necessary level of care to be not
credible.
Mother also presented the testimony of [N.T.], [M]other’s
aunt. [N.T.] currently resides with Mother in McKees Rocks,
Pennsylvania[,] in a four-bedroom townhome that is rented by
[N.T.] Mother is not currently on the lease at that residence.
There are currently three (3) adults, [N.T.], Mother's sister,
[D.L.], and Mother, and three (3) children, not including the
children at issue in this action, that reside in that residence.
Mother would share a room with the children if they were to reside
there with Mother. [N.T.] testified that Mother was residing at her
residence during the time period of January of 2020 through
March of 2020, specifically the time period in which Mother tested
positive for drugs or admitted to using drugs. When asked, [N.T.]
denied knowledge that Mother was using drugs in the home during
that time period. The [c]ourt found that testimony of [N.T.] to be
incredible.
Mother testified at the hearing. During Mother’s
testimony[,] she stated that she resides with [N.T.], with Mother's
sister, and with three other children. Mother stated that she has
full custody of all her children; a fact that was refuted by
caseworker Willy whose testimony was found to be credible.
Mother indicated to the [c]ourt that she intended to move out of
the McKees Rocks residence into her own residence through the
Beaver County Housing Authority in June, so long as she pays the
Housing Authority the outstanding balance owing on her account.
This [c]ourt found Mother’s responses to questions asked on direct
and cross-examination to be unresponsive at times and that her
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demeanor was unstable and incoherent. Mother’s testimony that
she turned over two of her other children to other adults because
those adults could not have children was concerning to the
[c]ourt. The [c]ourt determined that Mother’s testimony was not
credible, in particular, as it related to her continued drug use and
her drug activity and use at the home of [N.T.]
In this case, the proof of dependency was found by the
[c]ourt by clear and convincing evidence. Protective [c]aseworker
Sue Willy has been involved with the family for the past three and
one-half (3½) years. Ms. Willy has extensive personal knowledge
of the family dynamics and the history of the case because of her
close involvement with the family over that time period.
Although[] the family’s involvement with the Agency began prior
to Ms. Willy[’s] becoming involved, Ms. Willy was familiar with the
case history from the prior caseworker.
Ms. Willy was the [p]rotective [c]are [c]aseworker at the
time of the current allegation that gave rise to filing the [p]etitions
for [d]ependency. Ms. Willy’s testimony was found to be credible
by the [c]ourt. Ms. Willy testified that she has smelled marijuana
at the residence of Mother [] during visits and that she is familiar
with the smell of marijuana due to her prior employment with
Gateway Rehab. Furthermore, Mother admitted that she still
smokes marijuana. Ms. Willy testified that Mother’s housing
situation has been “pretty inconsistent” and that Mother has even
been homeless on occasions.
***
Mother’s longstanding goals have been to address issues in
housing, mental health and drug and alcohol abuse. Caseworker
Willy stated that Mother failed to comply with these concise
objectives over the last three years, and in particular, over the
last three months leading to the filing of the [d]ependency
[p]etitions. Mother has failed to engage in or complete drug and
alcohol treatment; caseworker Willy testified that Mother failed to
complete housing service opportunities through Harmony House,
Cornerstone, FamilyLinks and the Beaver County Housing
Authority. Mother’s current active drug use occurs in the home
where she currently stays and her drug use while pregnant with
P.L. occurred while she resided at the home of [N.T.] P.L. was the
last of four recent children born to Mother that was born with
drugs, including marijuana and cocaine, in their systems. Mother
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continues to consistently test positive for continued drug use and
that drug use leads to unstable housing for the children and being
involved with other adult caregivers who are enabling of and
complicit with Mother’s drug use life style. Mother's drug addictive
life style has placed her in a position where she and [] [C]hildren
are exposed to domestic violence at least by the Father of one of
her other Children. Mother acknowledges that she needs mental
health treatment but, by her own admission, she is non-compliant
in that regard.
Finally, at the time of the [a]djudication hearing[,] [] MK.L.
was three years old and P .L. was only in his second month of life.
[] [C]hildren are vulnerable, incapable of self-protecting and are
not safe with Mother in her current life style which is dominated
by drug use, untreated mental health issues, unstable housing,
and drug enabling adult contacts. Four weeks prior to the
hearing[,] Mother tested positive for drug use. Four months prior
to the hearing[,] she admitted to using cocaine when she was
pregnant with P.L., her son who was to be born just over one
month later. She used drugs during her pregnancy even after the
three most recent children born to her, including ML.K., were born
with drugs in their systems and related birth complications. She
used drugs immediately after the birth of P.L. even though her
expectation was to have the child, in his initial days of life, in her
care and custody. Mother is presently incapable of understanding
that her ability to keep [] [C]hildren safe in her care is
compromised by her continued drug use and the periods of
decompensation that exist because of her untreated mental health
condition.
TCO at 12-17, 18-19.2
We agree with the trial court’s determination. With reliance on the law
set forth above and a review of the record in this case, we conclude that the
trial court did not abuse its discretion in adjudicating Children dependent and
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2 Because Mother did not include any arguments relating to the testimony of
one of the Agency’s witnesses, Michael Goodwin, a clinical therapist who
treated Mother while she was in the inpatient program at FamilyLinks, this
Court has not included that portion of the trial court’s opinion that discussed
that testimony.
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placing them in the custody of the Agency. The trial court’s credibility
determinations and findings provide the basis for its reasoning underlying its
conclusions as to the dependency orders. Moreover, the trial court’s findings
are supported by the testimony and evidence presented at the hearing.
Additionally, Mother’s arguments are generally an attack on the trial court’s
credibility determinations and she disregards the evidence before the court
that contradicts her position regarding dependency. See R.J.T., 9 A.3d at
1190 (stating that an appellate court is required to accept the findings of fact
and credibility determination of the trial court if they are supported by the
record). Accordingly, we affirm the orders adjudicating Children dependent.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
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