J-S13003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.T.G., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: C.S., MATERNAL
GRANDMOTHER
No. 1588 MDA 2021
Appeal from the Dispositional Order Entered November 18, 2021
In the Court of Common Pleas of Northumberland County
Juvenile Division at No: CP-49-DP-0000083-2021
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 09, 2022
Appellant, C.S. (“Maternal Grandmother”), appeals from the November
18, 2021 dispositional order adjudicating P.T.G. (“Child”), her minor
grandchild, dependent, removing him from the home of Maternal
Grandmother and M.G., his mother (“Mother”), placing Child in foster care,
and ordering supervised visitation with a goal of reunification. We affirm in
part and vacate in part.
Northumberland County Children and Youth Services (“CYS” or the
“Agency”) has been involved with Child’s family since 2011, when he was four
years old. Child was first adjudicated dependent on November 30, 2011 and
placed in legal custody of CYS. He remained in placement until February of
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* Former Justice specially assigned to the Superior Court.
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2013, after which Child and Mother lived with Maternal Grandmother and
Child’s maternal grandfather, who has since passed away. On December 27,
2016, CYS received another referral when Mother overdosed on heroin in the
family home. CYS first received concerns about truancy from Child’s school
in November of 2019, and again on March 5, 2020. On February 18, 2021,
CYS met with Maternal Grandmother regarding Child’s failure to complete
schoolwork and his failure to login to remote learning sessions. Another
meeting occurred on February 23, 2021 regarding, among other things, Child’s
pending failure of several of his seventh-grade courses. CYS filed a
dependency petition on March 18, 2021 alleging that Child was without proper
parental care or control, and that he was habitually truant from school. The
trial court conducted a hearing on May 6, 2021 and declined to adjudicate him
dependent or remove him from the home.
The instant matter arose from an October 13, 2021 referral informing
CYS that Child had completely failed to attend school during the 2021-2022
school year. N.T., 11/10/21, at 16. Several subsequent attempts to contact
the family were unsuccessful. Id. at 16-18. On November 9, 2021, CYS
personnel and a local police officer traveled to Maternal Grandmother’s home,
where Mother and Child both lived. Initially no one answered the door, but
Mother eventually arrived as a passenger in a car. Id. at 18. She was
slumped over in the back of the car, and after exiting the vehicle she exhibited
slurred speech and difficulty in standing. Id. at 18; N.T. 11/18/21, at 13.
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Mother claimed she had just come from a methadone clinic. N.T 11/18/21, at
23. While Mother was present, the CYS caseworker was able to contact
Maternal Grandmother—Child’s legal guardian—by phone. N.T. 11/10/21, at
18. Maternal Grandmother claimed to be shopping in Selinsgrove, but the
police officer heard voices from inside the home. Id. at 18-19; N.T. 11/18/21,
at 16-18. Eventually, Maternal Grandmother came to the door with Child. Id.
She was unable to provide any verification that Child was enrolled in any cyber
school or private school. N.T. 11/10/21, at 18-19; N.T. 11/18/21, at 19-20.
Also, Grandmother spoke of difficulties in her life stemming from her
deteriorating mental and physical health and the recent death of her husband,
Child’s grandfather. N.T. 11/10/21, at 19; N.T. 11/18/21, at 16.
On November 9, 2021, CYS received a verbal order granting them
physical custody of Child. N.T. 11/10/21, at 19-20. A shelter care hearing
took place on November 10, 2021, and the trial court granted CYS’s petition
for protective custody. Id. at 30-31. CYS filed a dependency petition on
November 12, 2021, alleging that Child was without proper parental care or
control.
At the November 18, 2021 hearing on the petition, school officials
confirmed Child’s total absence from school during the Fall of 2021. N.T.,
11/18/21, at 28. Child’s school received nothing regarding Child’s enrollment
in any other school until a November 12, 2021 request from Milton Area School
District. Id. at 46. Child failed two subjects as a seventh grader the previous
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year and never completed a required summer remedial program. Id. at 29-
32, 44-45. Thus, he would have had to repeat seventh grade when he
returned. Id. at 50. The principal confirmed that truancy letters had been
sent on October 26, 2021 and November 9, 2021. Id. at 48. A school
attendance improvement meeting between Mother, Maternal Grandmother,
and school officials occurred on November 15, 2021, just before the hearing.
Id. at 43, 50. Otherwise, the truancy proceeding had gone no further.
Rather, the school referred the matter to CYS and the local police, resulting in
the welfare check on November 9, 2021.
At the conclusion of the hearing, the trial court entered the order on
appeal. Maternal Grandmother filed this timely appeal in which she presents
three questions for our review:
I. Whether the trial court erred/abused its discretion by
adjudicating [Child] dependent?
II. Whether the trial court erred/abused its discretion by
removing [Child] from the physical custody of Maternal
Grandmother?
III. Whether the trial court erred/abused its discretion by
ordering supervised visitation with Maternal Grandmother?
Maternal Grandmother’s Brief at 18.1
We conduct our review as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
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1 We note with disapproval that the Agency has not filed a brief.
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lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re E.B., 83 A.3d 426, 430 (Pa. Super. 2013).
The Juvenile Act defines dependent child, in relevant part, as follows:
“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, including evidence of the parent’s,
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;
[…]
(5) while subject to compulsory school attendance is
habitually and without justification truant from school;
42 Pa.C.S.A. § 6302, Dependent child (1), (5). “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.” E.B., 83 A.3d at 431. “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[.]” Id. “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
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and control, and if so, whether such care and control are immediately
available.” Id.
In her first argument, Maternal Grandmother claims that the
adjudication of dependency was improper because CYS did not articulate any
safety concerns about the home. Rather, the referral that led to this
dependency petition arose from Child’s habitual truancy. Maternal
Grandmother argues that Southern Columbia School District failed to follow
the appropriate procedures2 to address Child’s truancy, and thus she
apparently believes Child’s truancy is not properly in issue.
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2 Maternal Grandmother refers to 24 P.S. § 13-1333.1 of the Public School
Code. § 13-1333.1, titled “Procedure by school when child habitually truant,”
which provides in relevant part as follows:
(a) When a child is habitually truant and under fifteen (15) years
of age at the time of referral, the school:
(1) Shall refer the child to either of the following:
(i) A school-based or community-based attendance
improvement program.
(ii) The county children and youth agency for services or for
possible disposition as a dependent child under the provisions of
42 Pa.C.S. Ch. 63 (relating to juvenile matters).
(2) May file a citation in the office of the appropriate judge
against the person in parental relation who resides in the same
household as the child.
[…]
(d) When referring a habitually truant child to the
county children and youth agency or filing a citation with
(Footnote Continued Next Page)
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As quoted above, subsection one of the statutory definition of dependent
child is child’s lack of “education as required by law.” 42 Pa.C.S.A. § 6302,
Dependent child (1). The Agency’s petition, a pre-printed form, contains a
checklist quoting the statutory bases for dependency. The Agency checked
the box next to subsection one, which addresses several issues including
education, but the Agency did not check the box next to subsection five, which
deals specifically with habitual truancy.3 Maternal Grandmother’s argument
ignores the fact that lack of education is cognizable under subsection one.
On that point, the record demonstrates Child’s total failure to attend
school during what would have been his eighth-grade year. The record also
demonstrates that Child’s attendance issues went at least as far back as
February of 2020. Subsequently, during Child’s 2020-2021 seventh-grade
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the court because a child has been habitually truant, the
school shall provide verification that a school attendance
improvement conference was held.
24 P.S. § 13-1333.1(a), (d) (emphasis added). Given our disposition in the
main text, we need not consider the effect of the school district’s compliance,
or lack thereof, with these dictates.
3 At the dependency hearing, the Guardian Ad Litem (“GAL”) moved, over the
objection of the Agency, to amend the petition to alleged dependency under
subsection five. The trial court granted the amendment and found Child
dependent under both subsections one and five. Maternal Grandmother does
not directly challenge the order granting the GAL’s motion, but for reasons
explained in our memorandums at docket numbers 1635 MDA 2021 (Child’s
appeal) and 1636 MDA 2021 (Mother’s appeal), we conclude the trial court
erred. We therefore vacate the dispositional order in all three cases insofar
as the trial court found Child dependent under subsection five of the statutory
definition of dependent child.
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year, he failed two courses. Child then failed to complete summer remedial
work that could have allowed him to move forward to eighth grade for the
2021-2022 school year. The Agency’s repeated attempts to help the family
address these issues were futile. The trial court did not err in finding that
Child is dependent because he was not receiving an education as required by
law. Maternal Grandmother’s first argument fails.
Next, Maternal Grandmother argues the trial court erred in ordering
Child removed from her home because there was no clear necessity to do so.
“[E]ven after a child properly has been determined to be dependent, the court
is not free to remove the child from parental custody. Removal may be
ordered only where the evidence demonstrates a clear necessity for removal.”
In re A.L., 779 A.2d 1172, 1175 (Pa. Super. 2001). Maternal Grandmother
cites A.L., argues that her home was safe, and concludes that Child should
not have been removed from her home. As we have already explained,
however, the evidence demonstrates a tragic, ongoing failure to see to Child’s
education. Child’s truancy issues date at least as far back as February of
2020, and he has since failed seventh grade and then failed to complete
remedial summer schoolwork. Maternal Grandmother fails to explain why
these circumstances do not constitute a clear necessity to remove Child from
the home.
Furthermore, when a CYS agent was able to enter the home on
November 9, 2021, she reported seeing deplorable conditions, with dirty
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clothes strewn about and animal feces everywhere. N.T. 11/18/21, at 62.
Child smelled so bad the agent had to roll down the window of her car while
transporting him away from the home. Id. at 65. While Agency personnel at
earlier times reported no safety concerns with the home, it appears such
concerns had arisen at the time of the instant referral. We find no merit in
Maternal Grandmother’s argument that the trial court erred in removing Child
from the home.
In her third and final assertion of error, Maternal Grandmother argues
the trial court erred in ordering supervised visitation. Maternal Grandmother
cites In re Mary Kathryn T., 629 A.2d 988 (Pa. Super. 1993), appeal
denied, 639 A.2d 32 (Pa. 1994), for the proposition that visitation with a
dependent child can be limited only where the parent or grandparent suffers
from “severe mental or moral deficiencies” that pose a “grave threat” to the
child. Id. at 995. Maternal Grandmother’s argument misses the mark.
“The polestar and paramount concern in evaluating parental visitation,
in dependency as well as non-dependency situations, is the best interests and
welfare of the children.” In re C.J., 729 A.2d 89, 94 (Pa. Super. 1999).
Maternal Grandmother does not explain how the trial visitation schedule was
not in Child’s best interest, nor does she explain why the visitation schedule
constitutes so severe a restriction as to require application of the “grave
threat” standard. We observe, for example, that the Pennsylvania Code
provides that county agencies “shall provide opportunity for visits between the
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child and parents as frequently as possible but no less frequently than once
every 2 weeks at a time and place convenient to the parties and in a location
that will permit interaction[….]” 55 Pa. Code. 3130.68 (emphasis added). We
are cognizant that this provision governs county agencies but is not binding
on reviewing courts. C.J., 729 A.2d at 94. Regardless, § 3130.68, in
condoning semi-weekly rather than weekly visitation, undermines Maternal
Grandmother’s argument that the visitation schedule was unlawfully
restrictive. Because Maternal Grandmother’s final argument finds no support
in the law she cites, it fails.
In summary, we have concluded that none of Maternal Grandmother’s
arguments is meritorious. We therefore affirm the dispositional order insofar
as it found Child dependent under 42 Pa.C.S.A. § 6302, Dependent child (1).
We vacate insofar as the trial court found Child dependent under 42 Pa.C.S.A.
§ 6302, Dependent child (5).
Order of disposition affirmed in part and vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/09/2022
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