In the Int. of: E.M., Appeal of: K.M. ( 2022 )

J-A28026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: E.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.M. :
:
:
:
:
: No. 659 MDA 2021
Appeal from the Dispositional Order Entered May 25, 2021
In the Court of Common Pleas of Schuylkill County Juvenile Division at
No(s): CP-54-DP-0000149-2021
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 28, 2022
K.M. (Mother) appeals pro se from the order adjudicating E.M. (Child)1
(born May 2021) dependent and transferring custody to the Schuylkill County
Children & Youth Services (CYS).2 This case returns to us after we remanded
to have the trial court resolve whether Mother was represented by counsel for
this appeal. Mother, pro se, raises numerous claims, including a violation of
her right to counsel and other challenges to the finding of dependency. We
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* Former Justice specially assigned to the Superior Court.
1 The trial court appointed Tom Campion, Esq., as Child’s guardian ad litem,
but because Attorney Campion was unavailable, James Conville, Esq.,
represented Child at the shelter care hearing, which we discuss below.
2 Mother identified J.A. as the father of Child, but as of the date of the
dependency hearing, he had not been located. N.T. Hr’g, 5/24/21, at 3. The
record reflects that Mother has also identified R.R. as Child’s father. Neither
J.A. nor R.R. is a party in this case.
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affirm based on the trial court’s reasoning and deny Mother’s application for
relief.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 6/23/21, at 1-5. Briefly, CYS filed an application
for emergency protective custody on May 17, 2021, alleging that Child should
be removed from Mother’s custody because of substance abuse, mental
health, and parenting issues. Id. at 1, 5. That same day, the trial court
granted the application and scheduled an emergency shelter care hearing for
May 20, 2021.3
On May 20, 2021, CYS filed a dependency petition, alleging Child was
dependent. CYS averred that Mother’s other minor child, A.M. (born
September 2018), was removed due to Mother’s “substance abuse, mental
health, and . . . inability to maintain sobriety.” Dependency Pet., 5/20/21, at
3. CYS asserted that during Mother’s pregnancy with Child, it conducted
random drug screens, which returned six positive test results. Id. CYS
alleged that Mother’s cooperation had declined over the prior eight months
and she was incarcerated for a probation violation after failing to complete
drug and alcohol treatment. Id. CYS averred that reasonable efforts were
made to prevent Child’s placement. Id. at 4.
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3 Under 42 Pa.C.S. § 6325, a court may place a child in shelter care “prior to
the hearing [if] required to protect . . . the child.” 42 Pa.C.S. § 6325.
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That same day, the trial court held the emergency shelter care hearing.
Mother had court-appointed counsel, Mark Barket, Esq., but he could not
appear for the hearing. N.T. Hr’g, 5/20/21, at 3-4, 18. The court proceeded
with the hearing without Attorney Barket. Id.
At the hearing, counsel for CYS explained that Child, who had been born
a few days prior to the hearing, was still hospitalized for “issues regarding
[Mother’s] opiate abuse.” Id. at 4. CYS caseworker Lisa Moyer testified that
CYS had previously provided services to Mother and A.M. because of Mother’s
drug use and mental health. Id. at 7. Because of Mother’s “inability to remain
sober,” A.M. was removed from Mother’s care and eventually custody was
transferred to A.M.’s father. Id. at 8.
Ms. Moyer testified that Mother had six drug tests between November
2020 and February 2021, which was during her pregnancy with Child, and
tested positive for methamphetamines, amphetamines, and opiates. Id. Ms.
Moyer stated that Mother was incarcerated for a probation violation, tested
negative for drugs, and released from prison on May 4, 2021. Id. at 8-9. Ms.
Moyer said that Mother was tested an additional five times in May 2021, with
one negative result and the remaining results pending at the time of the
hearing. Id. at 10. Ms. Moyer noted that Mother did not keep a telephone
appointment with a rehabilitation counselor and had not yet rescheduled that
appointment. Id. at 11. Ms. Moyer was also concerned that Mother lives with
her mother, L.G. (Child’s maternal grandmother), who has substance abuse
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issues as well as at least one open case with CYS. Additionally, L.G. tested
positive for methamphetamine on April 5, 2021. Id. at 16-17.
With respect to Child, Ms. Moyer testified that CYS wanted Child in foster
care until CYS could ensure that Mother could “stay clean and sober.” Id. In
Ms. Moyer’s view, Mother had a history of completing drug treatment,
remaining sober for “a couple of negative drug screens,” and then relapsing.
Id. at 10.
Mother acknowledged that she had six positive drug tests since the last
time she appeared before the trial court regarding A.M. Id. at 20. Mother
claimed that she had negative drug test results on May 14 and 16, 2021. Id.
at 21. At the end of the hearing, the trial court ordered that Child remain at
the hospital pending the May 24, 2021 dependency hearing. Id. at 27.
On May 24, 2021, the trial court held the dependency hearing, and
Attorney Barket attended the proceeding. Ms. Moyer and Mother testified in
greater detail about the issues raised at the prior emergency shelter care
hearing, such as Mother’s history of drug abuse and resistance to treatment.
See, e.g., N.T. Hr’g, 5/24/21, at 6-7. Ms. Moyer noted that Mother also tested
positive for PCP on the day Child was born. Id. at 9. Ms. Moyer testified that
CYS contacted or attempted to contact other people for placing Child, but none
were suitable. Id. at 14. Ms. Moyer also explained that Mother refused
inpatient treatment for her addiction. Id. at 7, 13.
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Mother testified that she missed the telephone appointment with a
rehabilitation counselor because she had a conflicting doctor’s appointment.
Id. at 23. Mother could not explain her positive result for PCP. Id. at 24.
Mother stated that she would live at L.G.’s house with Child. Id. Mother also
admitted that she had six positive drug test results while pregnant with Child.
Id. at 27.
At the conclusion of the hearing, CYS argued for Child’s continued
placement until Mother could “establish sobriety for a longer period of time”
but also suggested CYS would be amenable to “early review” if Mother
continued to test negative and completed thirty days of drug rehabilitation.
Id. at 34-35. On May 25, 2021, the trial court found Child to be dependent
and removed Child from Mother’s care. Id. at 13-14.
On May 27, 2021, Mother, pro se, timely appealed and
contemporaneously filed a Pa.R.A.P. 1925(a)(2)(i) statement of errors
complained of on appeal, raising the following eleven issues:
1. The Court erred in that [CYS] should have never been
granted emergency custody as there was no danger to
[Child] proven;
2. The Court erred in that custody of [Child] should not have
been transferred to [CYS] as notarized papers were
provided to Orphans Court May 17, 2021 giving temporary
custody to grandmother [L.G.]; . . .
3. The Court erred in that three different judges that were not
provided all filings were able to decide the outcome of taking
a child from his mother;
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4. The Court erred in that counsel should have been provided
for [Mother] on the May 20, 2021 hearing ([Mother] called
CY[S] the morning after being served with the hearing
papers at the hospital for counsel);
5. The Court erred in letting two different guardian ad litem’s
with two different opinions represent the child within two
days’ time;
6. The Court erred in not reviewing the case file of
grandmother, [L.G.], as well as putting her caseworker on
the stand to testify to her good standing and being a
resource for [Child] to come home as subpoenaed twice for
the two hearings;
7. The Court erred in not considering all of the recent negative
drug screens all of which were not even part of the original
affidavit to take him, the last positive screen was February
2021;
8. The Court erred in not considering all of the resources
[Mother] has set up for herself (not one program is court
ordered or required) but she set up and attends all
voluntarily;
9. The Court erred in considering [Mother’s] placement
through [CYS], which was requested by her mother back in
2013 for addiction to be a factor in her keeping her son in
2021;
10. The Court erred in allowing Karen Rismiller, attorney for
[CYS] question [Mother] in regards to her sister[’s B.M.]
opioid addiction that led to her death in 2018 (3 years before
[Child’s] birth), also a direct violation of civil rights as opioid
addiction is considered a disability, this matter has nothing
to do with [Mother] taking care of her child in 2021(county
suit to follow);
11. The Court erred in allowing Karen Rismiller to question
[Mother] on her having Hepatitis C and how she is able to
nurse the baby being a direct violation of HIPA[A] and civil
rights as the child was tested at the hospital and the CDC
states that nursing with Hepatitis C is safe (county suit to
follow) . . . .
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Pa.R.A.P. 1925(a)(2)(i) Statement, 5/27/21 (formatting altered).4
Mother raises the following issues in her appellate brief, which we
reordered for disposition:
1. Whether the trial court’s order must be reversed because
the court failed to require [CYS] to put on record the manner
of service for hearing notices and appellant’s appeal rights?
2. Whether the trial court’s order must be reversed because
the appellant was deprived of her right to produce evidence
and witnesses and an opportunity to cross examine?
3. Whether the trial court’s order must be reversed because
the court failed to provide statement[s], state specific facts
for his decision and any legal determinations?
4. Whether the trial court’s order must be reversed because
the court failed to comply with what needs to be stated on
the record pursuant to 237 Pa Code 1512 Section (C)(D)?
5. Whether the trial court’s order must be reversed because
[CYS] failed to provide notice of the [issues] before court
preventing appellant from having a fair opportunity to
present a case?
6. Whether the trial court’s Opinion of Court should not be
considered as it does not comply with Rule 1925?
7. Whether the trial court’s order must be reversed because
the court failed to comply with [Pa.R.J.C.P. 1408(1)]?
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4 Because the trial court’s record indicated that privately retained counsel
entered his appearance for Mother, this Court remanded to have the trial court
resolve whether Mother was represented by that counsel for this appeal. The
trial court held that Mother was proceeding pro se on appeal and therefore
this case is ripe for disposition.
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8. Whether the trial court’s order must be reversed because
the court and counsel for [Mother] both failed to require
[CYS] to provide the lab results of her drug screens?
9. Whether the trial court’s order must be reversed because
appellant’s right to counsel was denied?
10. Whether the trial court’s order must be reversed because
[CYS] failed to provide what exact reasonable efforts were
made to prevent placement in foster care?
11. Whether the trial court’s order must be reversed because
even if child was determined dependent there was no
evidence presented that it was clearly necessary to separate
[Child] from his parent?
12. Whether the trial court’s order must be reversed because
the court failed to require [CYS] to state their extent [sic]
pursuant to Family Findings not just what was replayed [sic]
to them by the parent?
13. Whether the trial court’s order must be reversed because he
relied on [CYS’s] Affidavit which references drug screens
while [Mother] was pregnant with [Child]?
Appellant’s Brief at 5-6 (formatting altered).
As a preliminary matter, this Court has stated:
While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any
particular advantage because she lacks legal training. As our
Supreme Court has explained, any layperson choosing to
represent herself in a legal proceeding must, to some reasonable
extent, assume the risk that her lack of expertise and legal
training will prove her undoing.
Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006)
(citation omitted and formatting altered). Where a pro se appellant raises an
issue in her appellate brief that is not raised in her Pa.R.A.P. 1925(a)(2)(i)
statement, this Court may find waiver. In re G.D., 61 A.3d 1031, 1036 n.3
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(Pa. Super. 2013). Instantly, Mother waived her first eight issues as they
were not raised in her Rule 1925(a)(2)(i) statement. See id.Right to Counsel
In support of her ninth issue, Mother argues that the trial court violated
her right to counsel because Attorney Barket was not present at the
emergency shelter care hearing. Mother’s Brief at 8, 10. Mother asserts the
trial court failed to comply with Pa.R.J.C.P. 1406 and 42 Pa.C.S. § 6337. Id.
Section 6337 of the Juvenile Code states in relevant part:
Except as provided under this section and in section 6311 (relating
to guardian ad litem for child in court proceedings), a party is
entitled to representation by legal counsel at all stages of any
proceedings under this chapter and if he is without financial
resources or otherwise unable to employ counsel, to have the
court provide counsel for him. If a party other than a child
appears at a hearing without counsel the court shall ascertain
whether he knows of his right thereto and to be provided with
counsel by the court if applicable. The court may continue the
proceeding to enable a party to obtain counsel. . . .
42 Pa.C.S. § 6337; see also In re S.U., 204 A.3d 949, 959 (Pa. Super. 2019)
(noting there is a right to counsel for parents in dependency cases).
Pennsylvania Rule of Juvenile Court Procedure 1406 states, in relevant
part:
(1) Notification. Prior to commencing the proceedings, the court
shall ascertain:
(a) whether notice requirements pursuant to Rules 1360 and
1361 have been met; and
(b) whether unrepresented parties have been informed of the
right to counsel pursuant to 42 Pa.C.S. § 6337.
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Pa.R.J.C.P. 1406(A)(1)(a)-(b).
Instantly, at the emergency shelter care hearing, Attorney Barket was
not present to represent Mother. N.T. Hr’g, 5/20/21, at 3. The trial court,
however, proceeded with the hearing notwithstanding Mother’s right to
representation, and ordered Child to remain at the hospital pending the
dependency hearing. This was error because, under Section 6337, Mother
was entitled to representation “at all stages of any” Juvenile Act proceeding.
Further, we are troubled that the trial court opted to proceed with the hearing
even though Mother’s attorney could not attend. See 42 Pa.C.S. § 6337; see
also Pa.R.J.C.P. 1406(A)(1).
However, the record shows that Attorney Barket represented Mother at
the dependency hearing, held a few days later and the court thoroughly
addressed the matters raised during the shelter care hearing. Further, the
parties’ testimony at the dependency hearing went into greater depth and
detail than their testimony at the emergency shelter care hearing. Child
remained hospitalized during both the emergency shelter care and
dependency hearing, and, accordingly, was not moved anywhere else. Given
these circumstances, we decline to find reversible error based solely on the
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fact that Mother was not represented by counsel at the emergency shelter
care hearing.5 Cf. S.U., 204 A.3d at 959.
Sufficiency of the Evidence
We summarize Mother’s arguments in support of her remaining issues
together, as they are interrelated. In Mother’s view, CYS had no basis to apply
for emergency custody because the allegations were false, Child was not in
danger and not born addicted to narcotics, and Mother had maintained her
sobriety. Mother’s Brief at 11. Mother asserts that CYS did not establish it
was “clearly necessary” to remove Child from her care. Id. In any event,
Mother argues that CYS should have created a safety plan as an alternative
to removal. Id. Mother alleges that CYS did not present, suggest, or provide
services to her. Id. at 12. Finally, Mother claims that CYS “should have to
present what they actually did and whom they contacted” to justify removal.
Id. at 10.
Our standard of review follows:
In reviewing an order in a dependency matter, our standard of
review requires us 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
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
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5We are concerned that the trial court proceeded with the emergency shelter
care hearing without the presence of Mother’s court-appointed counsel. We
urge the trial court to reconsider holding any hearing in which court-appointed
counsel is not present.
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In re N.B., 260 A.3d 236, 245 (Pa. Super. 2021) (citation omitted and
formatting altered).
We are guided by the following:
To adjudicate a child dependent, a trial court must determine, by
clear and convincing evidence, that the child[] 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.
Clear and convincing evidence has been defined as testimony that
is so clear, direct, weighty, and convincing as to enable the trier
of facts to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue.
In accordance with the overarching purpose of the Juvenile Act to
preserve the unity of the family whenever possible, a child will
only be declared dependent when he is presently without proper
parental care and when such care is not immediately available.
This Court has defined proper parental care as that care which (1)
is geared to the particularized needs of the child and (2) at a
minimum, is likely to prevent serious injury to the child.
In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (citations omitted and
formatting altered); accord 42 Pa.C.S. § 6351(a).
“Following a finding of dependency, the trial court may make an order
for the child’s disposition pursuant to the Juvenile Act, which is best suited to
the safety, protection and physical, mental, and moral welfare of the child.”
In re A.C., 237 A.3d 553, 564 (Pa. Super. 2020) (formatting altered, citations
and footnote omitted).
Under the provisions of the Juvenile Act, . . . the trial court is given
broad discretion in meeting the goal of entering a disposition best
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suited to the protection and physical, mental, and moral welfare
of the child. The trial court’s decision to permit a child to either
remain with his present caretaker(s), or to temporarily transfer
custody to a qualified agency or individual, is subject only to the
express limitation that the disposition be in the best interest of
the child.
Id. at 565 (citations omitted and formatting altered).
A child may be removed from a parent’s care only upon a showing
of clear necessity; clear necessity exits where the continuation of
the child in his home would be contrary to the welfare, safety, or
health of the child and reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need for
removal.
In re La.-Ra. W., --- A.3d ---, ---, 2021 PA Super 227, 2021 WL 5443285,
*14 (Pa. Super. filed Nov. 22, 2021) (citations omitted and formatting
altered).
CYS is required to comply with the “family finding” requirement when it
accepts a child for service. See 67 Pa.C.S. § 3103 (stating, “[f]amily finding
shall be conducted for a child when the child is accepted for service”). Section
3102 defines “family finding” as follows:
“Family finding.” Ongoing diligent efforts between a county
agency, or its contracted providers, and relatives and kin to:
(1) Search for and identify adult relatives and kin and engage
them in children and youth social service planning and delivery.
(2) Gain commitment from relatives and kin to support a child
or parent receiving children and youth social services.
Id. § 3102.
CYS may also provide services, which include:
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(1) Counseling service. Supportive and therapeutic activities
provided to a child or a child’s family and directed at preventing
or alleviating conditions, including crisis conditions, which present
a risk to the safety or well-being of the child by improving
problem-solving and coping skills, interpersonal functioning, the
stability of the family, or the capacity of the family to function
independently.
55 Pa. Code § 3130.35(1).
After careful review of the parties’ arguments, the record, and the trial
court’s opinion, we agree with the trial court’s reasoning that the record
supports the finding that it was unsafe for Child to remain in Mother’s custody.
CYS had conducted family finding but identified no kinship placements,
including the fact that maternal grandmother had substance abuse issues and
at least one open case herself with CYS which raised concerns for Child’s safety
in that Mother and Child had been residing with maternal grandmother.
Further, CYS had provided services to Mother unsuccessfully.6 See Trial Ct.
Op. at 11-14. Additionally, Mother had six positive drug test results while
pregnant with Child and tested positive for PCP on the day Child was born.
Id. at 12. Further, CYS presented testimony regarding potential “family
finding” for Child. See id. at 12-13; see also 67 Pa.C.S. § 3102. Finally, the
record refutes Mother’s assertion that CYS did not provide services, as Ms.
____________________________________________
6 We note that the trial court inadvertently stated that Child should not remain
at home, when the record reflects that Child was hospitalized at all relevant
times. See Trial Ct. Op. at 13. It appears that the trial court’s statement is
referring to the safety concerns addressed in its opinion such that Child should
not return to his maternal grandmother’s home.
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Moyer testified regarding Mother’s refusal of inpatient treatment. See N.T.
Hr’g, 5/24/21, at 7, 13. To the extent Mother argues CYS should have created
a safety plan, Mother waived her argument because she did not identify any
legal authority requiring CYS to create such a plan instead of pursuing
removal. See Gesiorski, 904 A.2d at 942. Because the record supports the
trial court’s findings and we find no abuse of discretion nor error of law by the
trial court, we affirm the order.7 See N.B., 260 A.3d at 245.
Order affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
____________________________________________
7We agree with CYS and the trial court that should Mother continue to make
substantial progress in remaining sober, she may move for appropriate relief.
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Received 8/10/2021 4:48.25 PM Superior Court Middle District
Circulated 02/08/2022 08:58 AM
Filed 8/10/2021 4:48.25 PM Superior Court_Mid@lg District
659 MDA 2021
IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PA
JUVENILE DIVISION
IN THE INTEREST OF: DP-149-2021
E.M., a minor 659 MDA2021
Karen E. Rismiller, Esq. - for Schuylkill County Children and Youth Services
Mark A. Barket, Esq. - for the Appellant
Thomas J. Campion, Jr., Esq. -- Guardian ad Litem for the minor child
OPINION PURSUANT TO PA.R.A.P. 1925
GOODMAN, J.
1. PROCEDURAL HISTORY
]
The Appellant, who is the biological mother of the minor child, E.M., fid a
notice of appeal on May 28, 2021 from the Honorable Senior Judge Robert B. Sacavage's Order
of Adjudication and Disposition dated May 24, 2021.' The relevant procedural history of this
matter is summarized as follows. On or about May 17, 2021, Schuylkill County Children &
Youth Services (CYS) fled anApplication & Affidavit requesting that emergency custody of
E.M. be granted to the agency for placement of the minor child in foster care. On that same date,
the Honorable Judge Cyrus Palmer Dolbin issued a Protective Custody Order of Court granting
CYS request pursuant to the Juvenile Act of July 9, 1976, P.L. 586, No. 142 as amended
effective June 27, 1978; 42 Pa.C.S.A. $ 6325? On or about May 20, 2021, CYS filed a
Dependency Petition. An informal emergency shelter care hearing was held, pursuant to 42
Pa.C.S.$ 6332, on May 20, 2021 before the Honorable Senior Judge D. Michael Stine. By Order
of Court dated May 20, 2021, Senior Judge Stine determined that the May 17, 2021 Protective
Custody Order of Court would remain in effect until further Order of Court. A dependency
The Order ofAdjudication and Disposition was filed on May 25, 2021.
By separate Order of Court, date May 17, 2021, Thomas J. Campion, Ir. Esq. was appointed to act as Guardian ad
Litem for the minor child.
- '- i '
hearing was held before Senior Judge Sacavage on May 24, 2021. By Order of Adjudication and
Disposition dated, May 24, 2021, Senior Judge Sacavage found E.M. to bc a "dependent child",
and that it was in the minor child's best interests to be removed from Appellant's home.3
On or about May 28, 2021, Appellant filed her Notice of Appeal, a Statement of Matters
Complained of on Appeal, a Motion to Proceed In Forma Pauperis, and a Petition for
Appointment of Counsel. On or about June 07, 2021, Appellant filed a Petition for Clarification,
a Petition seeking information about her transcript requests and her In Forma Pauperis
application, and a Petition for New Hearing and the Return of Child Pending that Hearing. By
Order of Court dated June 08, 2021, the undersigned member of this Court issued an Order
which granted Appellant's Motion to Proceed In Forma Pauperis; denied her petition for
Appointment of Counsel", and further directed Appellant to comply with Pa.R.A.P. I911. On or
about June 09, 2021, Attomey Barket filed a Petition to Withdraw as Counsel, in which he
asserted that Appellant had discharged him and that the instant appeal is frivolous. In response to
Attorney Barket's request to withdraw as counsel, the undersigned member of this Court entered
an Order dated June 10, 2021, which directed Attorney Barket to comply with the requirements
of Anders • California, 386 U.S. 738, 87 S.Ct, 1396, 18 L.Ed.2d. 493 (1967), and its progeny by
June 21, 2021. Our June 10, 2021 Order further dismissed Appellant's remaining June 07, 2021
pro se Petitions as legal nullities. On or about June 14, 2021, Appellant filed a Petition seeking
entry of an order that would inform Appellant how and/or why CYS was able to prepare an
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appeal withdrawal statement for her to sign without Appellant's knowledge or request. In this
'Senior Judge Sacavage determined that maternal relatives,
had been ruled out as resources for E.M, in three scparate Orders of Court, whicl were late fay ·, ,an
filed on May 25, 2021. Additionally, in an Order of Court dated May 24, 2021, which was filed on June 08, 2021,
Senior Judge Sacavage found that the maternal grandmother, i was also ruled out as a resource for E.M.
'Appellant was already represented by court appointed counsel, Mark A. Barket, Esq., when she filed her May 28,
2021 Petition for Appointment of Counsel.
2
petition, Appellant argues that her June 07, 2021 pro se Petition for Clarification and Petition for
New Hearing and Return of Child are not legal nullities pursuant to Pennsylvania Rule of Civil
Procedure No. 121(g)()&(iv).°
On or about June 16, 2021, the Superior Court of Pennsylvania entered an Order indicating
that our May 25, 2021 Dependency Order, to which the instant appeal has been taken, had not
been entered on the trial court docket. On or about June 16, 2021 the Clerk of Courts for the
Schuylkill County Court of Common Pleas transmitted the record to the Pennsylvania Superior
Court's Prothonotary Office. By Order of Court dated June 17, 2021, this Court offered further
clarification regarding the Dependency Order that is dated May 24, 2021, but was filed on May
25, 2021. On or about June 18, 2021, Attorney Barket filed his Anders Brief, in which he alleges
that Appellant discharged him as counsel, and that Appellant's pro se appeal is frivolous because
this Court's finding of dependency pursuant to 42 Pa. C.S.A. $ 6302 is supported by substantial
'However, this Court has determined that Appellant's June 07, 2021 Petitions are not the equivalent of a request to
change or remove counsel pursuant to Pa.R.A.P, 121(g)(ii) or a complaint that existing counsel has abandoned
Appellant pursuant to Pa.R.A.P. 121(g)(iv). In her Petition for New Hearing and Return of Child, Appellant
indicated that she believed violations of 42 Pa.C.S. $ 6337, Pa.R.C.P. 1406(e), Pa.R.C.P, 1408 and Pa.R.C.P 1409
occurred during her May 20, 2021 and May 24, 2021 hearings. Appellant requested that E.M. be returned to her and
that a new hearing be scheduled as a result of these alleged violations. However, this matter is already on appeal. In
her June 07, 2021 Petition for Clarification, Appellant requested that this Court provide her with written clarification
as to how and/or why alleged actions of CYS and/or Attomey Barket are legal, how they do not violate her rights,
and how Attorney Barket and CYS could continue to engage in the allegcd bchavior. Appellant requested that the
Court provide written clarification for her following questions:
(1) How Attorney Barket was able to tell Appellant that he was not qualified for an appeal and that her appeal
had no merit;
(2) How CYS could prepare an appcal withdrawal document for Appellant to sign without her knowledge or
request;
(3) How, after refusing to sign the withdrawal document, CYS could inform Appellant that E.M.'s foster
mother is unable to bring E.M. for visits three times a weck because it is an inconveniencc to the foster
mother; and .
(4) How CYS could threaten, that if Appellant did not sign the appeal withdrawal document, she would never
bc able to obtain court appointed counsel in the future.
Upon review of her June 07, 2021 pro se Petitions, it is clear that Appellant did not request to remoyg or{9 chgpge
her counsel in accordance with Pa.R.A.P 121(g)(ii). Further, it is also clear that neither of these petitions constitutes
a complaint that Attorney Barket abandoned Appellant, which she would be able to file pro sc pursuant to Pa.R.A.P.
121(g6).
The Superior Court of Pennsylvania directed tbis Court to enter the May 25, 2021 Dependency Order on our
docket, and it further directed this Court to provide a copy of the Order and a corrected copy of the trial court docket
to the Superior Court by June 25, 2021.
3
evidence. On or about June 21, 2021, the Superior Court of Pennsylvania entered an Order,
which denied Attorney Barket's request to withdraw as counsel as premature, and further vacated
this Court's directive to have him file an Anders brief.
JI. DISCUSSION
A, Whether the Court Erred in Granting Emergency Custody of EM to CyS,
and_ by Not_Providing Appellant with Counsel at the May 20,2021 Hearing
In three of her issues raised on appeal, Appellant argues that this Court erred in (1)
granting CYS emergency custody of E.M., as there was no danger to the child proven; (2)
transferring custody of EM. to CYS because notarized papers were provided to the Orphan's
Court on May 17, 2021, which gave temporary custody of E.M. to the maternal grandmother;
and (3) not providing counsel for Appellant at the May 20, 2021 informal emergency shelter care
a. Emergency Protective Custody & Shelter Care
"Pursuant to the Juvenile Act [,42 Pa.C.S. $ 6301 et seq.], a trial court may place a child
in protective custody if it determines that 'to allow the child to remain in the home is contrary to
the welfare of the child." In the Interest of M.Y.C.,230 A.3d 500, 508 (Pa. Super. 2020)
(quoting 42 Pa.C.S. $ 6324(1). Section 6325 provides that, "[a] child taken into custody shall
not be ... placed in shelter care prior to the hearing on the petition unless his detention or care is
required to protect the person or property...of the child...or an order for his...shelter care has
been made by the court pursuant to this chapter." 42 Pa.C.S $ 6325. Pennsylvania Rule of
Juvenile Court Procedure No. 1210 governs the Order for Protective Custody, including the
findings of court and the contents of the order. Pursuant to Pa.R.J.C.P. 1210(b)(1), "[a] child may
be taken into protective custody by court order when the court determines that removal of the
child is necessary for the welfare and best interests of the child," Pa.R.J.C.P. 1210(b)(1).
4
In the instant matter, CYS filed its Application & Affidavit, in which the agency sought
emergency custody of E.M. and placement of the minor child in foster care on or about May 17,
2021. In its Affidavit, CYS alleged that it was not safe for E.M. to remain in Appellant's care
based on the agency's involvement with Appellant to address her ongoing substance abuse,
mental health issues, and parenting concerns. The agency further indicated that it had concerns
about Appellant's and/or extended family's diminished compliance with CYS' services, the
maternal grandmother's substance abuse issues, and E.M.'s safety and well-being while in
Appellant's care, CYS alleged that Appellant tested positive, on multiple occasions, for
methamphctamines, amphetamines, and/or opiates while she was pregnant with E.M.
Additionally, in its May 17, 2021 Affidavit, CYS alleged that reasonable efforts were made to
prevent the placement of E.M,; and that the agency satisfied the requirements of Pa.R.J.C.P.
1149, regarding family finding, as the maternal cousin, was not willing to be a
resource at the time; and the maternal brother, could not be contacted. The
Affidavit further indicated that the maternal grandmother, who is the custodian for her grandson
C.C., has an open case with CYS for services to address substance abuse and supervision issues.
CYS further alleged that allowing E.M. to remain in Appellant's care was contrary to the health,
safety, and welfare of the child. According to the agency, there were no less restrictive measures,
other than transfer of custody to the agency for placement, which would assure E.M.'s safety and
well-being.
By Order dated May 17, 2021, Judge Dolbin granted CYS' application for protective
custody of E.M. This Order further placed the child in shelter care, pursuant to 42 Pa.C.S.A $
6325, after Judge Dolbin detemined that allowing E.M. to remain in the home would be contrary
to the welfare and/or best interests of E.M. This determination was based on CYS' history of
5
involvement with Appellant; the agency's concerns related to Appellant's and maternal
grandmother's substance abuse issues; Appellant's mental health issues, CYS' concerns about
inadequate parenting and supervision of the minor child, criminal activity, housing issues, and
the incarceration of E.M's alleged father. Based on the record, it was proper for Judge Dolbin to
grant protective custody of E.M. and to place the child in shelter care, pursuant to 42 Pa.C.S.A. {
6325, because he determined that allowing EM, to remain in the home would be contrary to the
welfare of the child. Therefore, Appellant's arguments, which indicate that this Court erred in
granting CYS emergency custody of E.M are without merit,
b. The May 20, 2021 Informal Emergency Shelter Care Hearing and Appellant's
Right to Counsel
The right to counsel in Juvenile Matters is provided for by 42 Pa.C.S.A. $ 6337. Section
6337 indicates that
a party is entitled to representation by legal counsel at all stages of any proceedings under
this chapter and if he is without financial resources or otherwise unable to employ counsel, to
have the court provide counsel for him. If a party other than a child appears at a hearing without
counsel the court shall ascertain whether he knows of his right thereto and to be provided with
counsel by the court if applicable. The court may continue the proceeding to enable a party to
obtain counsel.
42 Pa.C.S.A. $ 6337. Pursuant to 42 Pa.C.S. $ 6332(a)', after the child is placed in shelter care, an
informal hearing must be held within 72 hours of the child's placement
'section 6322(a) provides that
[a]n informal hearing shall be held promptly by the court or master and not later than 72 hours after the child is
placcd in detention or shelter care to determine whether his detention or shelter care is required under scction
6325 (relating to detention of child), whether to allow the child to remain in the home would be contrary to the
welfare of the child and, if the child is alleged to be delinquent, whether probable cause exists that the child has
committed a delinquent act. Reasonable notice thereof, either oral or written, stating the time, place, and purpose
of thc hearing shall be given to the child and if they can be found, to his parents, guardian, or other custodian.
Prior to the commencement of the hearing the court or master shall inform the partics of their right to counsel and
to appointed counsel if they are needy persons, and of the right of the child to remain silent with respect to any
allegations of delinquency. If the child is alleged to be a dependent child, the court or master shall also determine
whether reasonable efforts were made to prevent such placement or, in the case of an emergency placement where
services were not offered and could not have prevented the necessity of placement, whether this level of effort was
reasonable due to the emergency nature of the situation, safety considerations and circumstances of the family.
42 Pa.C.S.A $ 6332(a).
6
mzr s=rt)
to determine whether his...shelter care is required under section 6325 (elating to
detention of child), whether to allow the child to remain in the home would be contrary to
the welfare of the child and, if the child is alleged to be delinquent, whether probable
cause exists that the child has committed a delinquent act.
42 Pa.C.S. $ 6332(a). Section 6332(a) further provides that "[p]rior to the commencement of the
[informal] hearing the court or master shall inform the parties of their right to counsel and to
appointed counsel if they are needy persons ..." 42 Pa.C.S. $ 6332(a). Additionally, the Official
Comment of Rule of Juvenile Court Procedure No, 1151(E) provides that, in a dependency
matter, "the court is to inform all parties of the right to counsel if they appear at a hearing without
counsel. If a party is without financial resources or otherwise unable to employ counsel, the court
is to appoint counsel prior to the proceeding."Pa.J.R.C.P. No. 1151(E), Official Comment.
In the instant matter, an informal hearing was held on May 20, 2021, bcfore Senior Judge
Stine, after E.M. was placed in protective custody and/or in shelter care on May 17, 2021. At the
informal hearing, Karen E. Rismiller, Esq., counsel for CYS, informed this Court that Appellant
applied for court appointed counsel on or about May 16, 2021. See Emergency Shelter Care
Hearing, 3:6-13, May 20, 2021, Attorney Rismiller further indicated that Attorney Barket had
been appointed as counsel for Appellant the morning of the informal hearing; however, he was
unable to attend. See Emergency Shelter Care Hearing, 3:6-13, May 20, 2021. Additionally, at the
informal hearing, Senior Judge Stine clarified Appellant's right to an attorney, on the record,
before said hearing commenced, See Emergency Shelter Care Hearing, 5:23-25, May 20, 2021.
At the conclusion of the May 20, 2021 informal hearing, Senior Judge Stine found that it was
necessary for E.M. to remain subject to the May 17, 2021 Protective Custody Order of Court until
"Section 6325 provides that
[a] child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition
unless his detention or care is required to protect the person or property of others or of the child or because the
child may abscond or be removed from the jurisdiction of the court or because he has no parent, guardian, or
custodian or other person able to provide supervision and care for him and return him to the court when required,
or an order for his detention or shelter care has been made by the court pursuant to this chapter.
42 Pa.C.S.A. $ 6325.
7
Pm:,
the dependency hearing occurred, which was scheduled for May 24, 2021, See Emergency Shelter
Care Hearing, 27: 12-25, May 20, 2021. Senior Judge Stine determined that the child should
remain in shelter care because (1) Judge Dolbin had issued an Order determining E.M. required
shelter care pursuant to 42 Pa.CS.A $ 6325; and (2) allowing E.M. to return to Appellant's home
would be detrimental to the child's welfare and best interests because Appellant had relapsed', her
recent cooperation with CYS and her negative drug screens were "very short lived", and her
recent compliance and sobriety were partly the result of Appellant's incarceration for a probation
revocation. See Emergency Shelter Care Hearing, 20:6-11; 27:1-24, May 20, 2021, Judge Stine
entered an Order of Court the same day, which placed E.M. in shelter care and directed that the
May 17, 2021 Protective Custody Order remain in effect pending further Order of Court.
Based on the record, this Court properly held an informal emergency shelter care hearing,
pursuant to 42 Pa.C.S. $ 6332(a), within 72 hours after Judge Dolbin issued his May 17, 2021
Order, which placed E.M. in CYS' protective custody and/or in shelter care. Further, the
transcript for the May 20, 2021 informal hearing illustrates that Appellant was properly informed
of her right to court appointed counsel before the commencement of the informal hearing, as well
as, that counsel was properly appointed before the dependency proceeding occurred, which is
required by Pa.R.C.P. 1151(E). Additionally, the record reflects that, Judge Stine properly found
;; that E,M. was still in need of shelter care bccause returning the child to Appellant's home would
' ±
be contrary to E.M.'s welfare as Appellant had relapsed, she had only very recently produced
negative drug screens after her release from incarceration, and because she had only recently
become compliant with CYS' services. Therefore, Appellant's arguments that this Court erred in
The testimony from Lisa Moyer, Caseworker for CYS, at the May 20, 2021 Informal Emergency Shelter Care
Hearing, indicates that Ms. Moyer jointly prepared CYS' May I7, 2021 Affidavit with her supervisor, Samantha
Kranch. Sec Emergency Shelter Care Hearing, 7:7-13, May 20, 2021. The May 17, 2021 Affidavit included a list of
dates from November 6, 2020 through February 16, 2021, in which Appellant tested positive for methamphetamines,
amphetamines, and or opiates on at least six occasions. See Emergency Shelter Care Hearing, 8:11-18, May 20, 2021.
8
l ; b
granting emergency custody of E.M. to CYS and in not providing Appellant with counsel at the
May 20, 2021 informal hearing are without merit."
B. Whether Appellant's Arguments Related to the Dependency Proceeding and/or the
Determination that E.M. is n Dependent Child pre Without Merit
On appeal, Appellant raises several issues that ultimately question thc validity of the
dependency proceeding and/or Senior Judge Sacavages' finding that E.M. is a "dependent child"
pursuant to the Juvenile Act.'' Section 6335(a) of the Juvenile Act provides that, "[if a child is
placed in protective custody pending a dependency adjudication, the trial court must schedule the
dependency hearing within 10 days of the filing of the petition. In the Interest of M.Y.C., 230
A.,3d 500, 508 (Pa. Super. 2020) citing 42 Pa.C.S. $ 6335(a); Pa.R.J.C.P. 1404(A). A trial court
can adjudicate a child dependent, pursuant to the Juvenile Act, if it finds that the child meets the
requirements of one of the ten definitions of a "dependent child" found at 42 Pa.C.S.$ 6302. Sce
In the Interest of M.Y.C.,230 A.3d 500, 508 (Pa. Super. 2020), Pursuant to Section 42 Pa.C.S.A.
$ 6302, a "dependent child" is defined as a child who:
(I) 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
"In her Statement of Matters Complained of on Appeal, Appellant also argues that this Court errcd in letting two
different guardian ad litem's, with two different opinions, represent the child within two days' time. This argument
is without merit because tho transcript from the May 20, 2021 informal hearing makes it clear that Attomey
Campion was appointed Guardian ad Litem for E.M., and that Attorney James Conville only acted as Guardian ad
item because Attorney Campion was not available for the Informal Emergency Shelter Care Haring.
''In her May 28, 2021 Statement of Matters Complained of on appeal, Appellant makes the following arguments
that relate to the dependency procceding: The Court erred in (1) that three different judges that were not provided all
filings were able to decide the outcome of taking a child from his mother; (2) not reviewing the case file of
grandmother, AI] as well as putting her caseworker on the stand to testify to her good standing and being a
resource for E.M. to come home as subpoenaed twice for the two hearings; (3) not considering all of the relevant
negative drug screens all of which were not even part of the original affidavit to take him, the last positive screen
was February 2021; (4) not considering all the resources El has set up for herself (not one program is court
ordered or required) but she set up and attends all voluntarily; (5) considering E placement through Children
and Youth , which was requested by mother back in 2013 for addiction to be a factor in her keeping her son in 2021;
allowing Karen Rismiller, attorney for Children and Youth question [ in regards to her sisters (Bil
(6)
IN.NI] opioid addiction that led to her death in 2018 (3 years before E.M.'s birth), also a direct violation of civil
rights as opioid addiction is considered a disability, this matter has nothing to do with ['I taking care of
her child in 2021 (county suit to follow); and (7) allowing Karen Rismiller to question [! on her having Hcpatitis
C and how she is able to nurse the baby being a direct violation of HIPAA and civil rights as the child was tested at
the hospital and the CDC states that nursing with Hepatitis C is safe (county suit to follow).
9
t IE A.
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[.]
I the Interest ofM.Y.C.,203 A.3d at 512-513 (quoting 42 Pa.C.$. $ 6302(1)).
"Proper parental care" is care "which (1) is geared to the particularized needs of the child
and (2) at minimum, is likely to prevent serious injury to the child." In re A.B., 63 A.3d
345, 349 (Pa. Super. 2013) (citation omitted). Proof that a parent has committed abuse is
not necessary for a child to be found dependent under the Juvenile Act. In re RR., 455
Pa.Super. I, 686 A.2d 1316, 1317 (Pa. Super. 1996). 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., 845 A.2d 870, 872 (Pa. Super. 2004).
In the Interest of M.Y.C,, 203 A.3d at 513. "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." In re G.T. 845 A.2d 870, 872 (Pa.Super. 2004)
(quoting In re MW., 842 A.2d 425,428 (Pa.Super. 2004)).
After the adjudicatory hearing occurs, the trial court must enter its findings on the
dependency petition within seven days. See Pa.R.J.C.P. 1408; 42 Pa.C.S.A. $ 6341(a). Rule 1408
further provides that the court must specify "which, if any, allegations were proved by clear and
convincing evidence" and "whether the county agency has reasonably engaged in family finding
as required pursuant to Rule 1149." Pa.J.R.C.P. 1408(1)-(2). "Once the court bas made its
findings under Rule 1408, the court shall enter an order whether the child is dependent'?'
Te Official Comment to Pennsylvania Rule of Juvenile Court Procedure No 1409 provides that,
[before the court can find a child to be dependent, there must be clear and convincing evidence in support of
thc petition. The burden of proof is on the petitioner. The court's inquiry is to be comprehensive and its findings
are to bc supported by specific findings of fact and a full discussion of the evidence. In re LaRue, 244 Pa.Super.
218, 366 A,2d 1271 (1976), See also In re Frank W.D., Jr., 315 Pa.Super. 510, 462 A.2d 708 (1983); In re
Clouse, 244 Pa.Super, 396, 368 A,2d 780 (1976). The evidence must support that the child is dependent. In the
Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976). The court is not frce to apply the best interest of
the child standard as the requirements of the Juvenile Act, 42 Pa.C.S. $ 6341(c), require clear and convincing
evidence that the child is dependent is the proper standard. In re Haynes, 326 Pa. Super. 311, 473 A.2d 1365(1983). A child, whose non-custodial parent is ready, willing, and able to provide adequatc care for the child,
10
me .stet j
Pa.R.J.C.P, 1409(a). "If the court finds from clear and convincing evidence that the child is
dependent, the court shall proceed to a dispositional hcaring under Rule 1512," Pa.R.J.C.P.
1409(A)1). If a child is found to be a dependent child, the trial court may "transfer temporary
legal custody...to an agency...licensed 'or otherwise authorized by law to receive and provide
care for the child? if this decision is "best suited to the safety, protection and physical, mental
and moral welfare of the child". See 42 Pa.C.S.A. $ 6351(a)(2)ii). Section 6351(b) provides that
[prior to entering any order of disposition under subsection [6351](a) that would remove
a dependent child from his home, the court shall enter findings on the record or in the
order of court as follows:
(1) that continuation of the child in his home would be contrary to the welfare, safety or
health of the child; and
(2) whether reasonable efforts. were made prior to the placement of the child to prevent
or eliminate the need for removal of the child from his home, if the child has remained
in his home pending such disposition; or
(3) if preventive services were not offered due to the necessity for an emergency
placement, whether such lack of services was reasonable under the circumstances; or
(4) if the court has previously determined pursuant to section 6332 (relating to informal
hearing) that reasonable efforts were not made to prevent the initial removal of the
child from his home, whether reasonable efforts are under way to make it possible for
the child to return home; and
(5)if the child has a sibling who is subject to removal from his home, whether
reasonable efforts were made prior to the placement of the child to place the siblings
together or whether such joint placement is contrary to the safety or well-being of the
child or sibling.
42 Pa.C.S.A. $ 6351(b)(1)-(5).
In the instant matter, CYS filed its Dependency Petition on or about May 20, 2021. A
dependency hearing was held before Senior Judge Sacavage on May 24, 2021, four days after the
dependency petition was filed. At the dependency hearing, testimony was offered which reflects
the following. Thc primary focus of the court ordered services that CYS provides to Appellant is
cannot be found dependent on the basis of lacking proper parental care and control. /re M.L., 562 Pa. 646, 757
A.2d 849 (2000). A trial court has the authority to transfer custody or modify custody to the child's non-
custodial parent without a finding of dependency if sufficient evidence of dependency would have existed but
for the availability of the non-custodial parent. In re Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988)
Pa.R.J.C.P 1409, Official Comment.
11
=Em
to address Appellant's substance abuse, mental health issues, and her inability to maintain
sobriety. See Dependency Hearing, 6:3-5, May 24, 2021. CYS has concerns for E.M.'s safety
and well-being because of Appellant's relapse and her failure to comply with services. On
several occasions, Appellant tested positive for methamphetamine, amphetamines, opiates,
and/or marijuana while pregnant with E.M, and while being supervised by Adult Probation. See
Dependency Hearing, 7:13-25; 8:1-21, May 24, 2021. Additionally, Appellant tested positive for
Phencyclidine ("PCP), as part of a drug screen that was administered by CYS on the date of
E.M.'s birth. See Dependency Hearing, 8:9-25; 9:1-19, May 24, 2021, When E.M was bom, his
score for withdrawal due to Subetex'' was a one (1); however, on May 22, 2021, this score
increased to a six (6), and then decreased to between "2's and 3's" over that weekend. See
Dependency Hearing, 11:4-22, May 24, 2021. Appellant was recommended to receive inpatient
treatment and/or admission to a halfway house program for drug abuse issues; however,
Appellant declined to enter this type of treatment because she believes she is sober and because
she would like E.M. to be present with her at the facility as soon as the treatment commences.
' +
See Dependency Hearing, 13:1-25; 20:20-25; 21:1; 28:23-25; 29:1-10, May 24, 2021. CYS also
expressed concerns for Appellant's home environment because maternal grandmother has an
open case with CYS; maternal grandmother most recently tested positive for methamphetamine
on April 5, 2021; and maternal grandmother has not been cooperative with CYS or her
caseworker. See Dependency Hearing, 12: 5-10, May 24, 2021.
Additionally, at the May 24, 2021 Depcndency Hearing, testimony was also offered with
regard to the agency's efforts to utilize family resources as an alternative to placement.
According to the agency, ♦
the maternal grandmother, and
'on or about February I7, 2021, Appellant was hospitalized at Lehigh Valley Cedar Crest due to drug withdrawl.
At that time, Appellant admitted to using intravenous heroin and methamphetamine while pregnant, and sought
Subutex for her drug withdrawal. See Dependency Hearing, 7:10-17, May 24, 2021.
12
arc.7 am EE
maternal relative, were all presented as resources for E.M. See Dependency
Hearing, 14:10-25; 15:1-9, May 24, 2021. However, was ruled out as resource
because he refused a drug screen; indicated she did not wish to be a resource at this
time; EE] was ruled out as a resource because she did not retum the agency's
call and the agency did not know her address; and maternal grandmother was previously ruled
out due to having an open CYS case and a recent positive drug screen for methamphetamine. See
Dependency Hearing, 14:12-25; 15:1-9, May 24, 2021. On the record, at the dependency
hearing, Senior Judge Sacavage adopted CYS recommendation that E.M. bc found dependent
and removed from the home, and he explained his reasoning for doing so.
In his May 24, 2021 Order of Adjudication and Disposition, which was filed on May 25,
2021, Senior Judge Sacavage found E.M. to be dependent, pursuant to the first definition of a
"dependent child" found at 42 Pa.C.S.A. $ 6302. Senior Judge Sacavage explained that there was
clear and convincing evidence that E.M is without proper care or control, subsistence, cducation
as required bylaw,or othercareorcontrol necessary for his/her physical mental, oremotional
health or morals. Additionally, in the May 24, 2021 Order of Adjudication and Disposition,
Senior Judge Sacavage found that it was in E.M.'s best interests to be removed from Appellant's
home because allowing the child to remain in the home would be contrary to his welfare, as well
as, that reasonable cfforts were made by CYS to prevent or eliminate the need for removal from
the home. Senior Judge Sacavage further determined that CYS satisfied the requirements of
Pa.R.JC.P, 1149, regarding family finding. Upon review of the record, it is clear that Senior
Judge Sacavage properly found E.M, to be a dependent child pursuant to 42 Pa.C.SA. $ 6302,
because E.M. is without "proper parental care", and such care and control are not immediately
available to him. Through the allegations made in CYS' Dependency Petition and the testimony
13
d
that was presented at the May 24, 2021, it has been shown, by clear and convincing evidence, that
Appellant has placed the health, safety, and/or welfare of the child at risk through her continued
abuse of controlled substances, her short lived compliance with court ordered CYS services, and
by residing in a home with maternal grandmother, who has also tested positive for
methamphetamine use. The record further reflects that "proper parental care is not immediately
available to E.M. in Appellant's home or through any family resources. Therefore, Senior Judge
Sacavage properly determined that E.M. is a dependent child. Additionally, before making his
dctennination that E.M. should be removed from the home in his May 24, 2021 Order of
Adjudication and Disposition, Senior Judge Sacavage abided by 42 Pa.C.S.A. $ 6351(b), and
entered the required placement findings on the record. Therefore, the issues that Appellant raises
on appeal, which challenge the validity of the dependency procecding and/or the determination
that the child is a "dependent child are without merit. As such, we respectfully request that the
Superior Court of Pennsylvania should uphold this Court's May 24, 2021 Order of Adjudication
and Disposition, which was filed on May 25, 2021.
14
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