In the Interest of: Y.S., a Minor ( 2019 )

J-S14032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Y.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.S., FATHER :
:
:
:
:
: No. 2992 EDA 2018
Appeal from the Order Entered September 24, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002069-2018,
FID: 51-FN-001751-018
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 29, 2019
R.S. (Father) appeals from the Court of Common Pleas of Philadelphia
County order adjudicating his minor daughter, Y.S. (Child), born in July 2001,
dependent. After careful review, we affirm.
I.
In July 2018, Child came to the attention of the Philadelphia Department
of Human Services (DHS) when it received a general protective services (GPS)
report regarding the Child’s family. N.T., 9/24/18, at 5. That report alleged
that Child’s school was helping the family find housing as they were living in
a shelter; Father was fired from his job and could not pay his rent and utilities;
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* Retired Senior Judge assigned to the Superior Court.
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Father may be using drugs; Child left Father’s home; and Child does not want
to live in Father’s home.1 Id. at 5-6.
DHS investigated the report. During the investigation, Child stated that
there was rarely food in the home, that her Father denied her food, and Father
informed her that if she did not assist him with paying bills, she would not get
food.2, 3 Id. at 7-8. Child also reported Father acted unusually at times. Id.
at 8. Child recalled that when her mother was alive, Father would hit her
mother. Id. Because of the issues in Father’s home, Child refused to return
and was staying with a family friend, A.S., who is a teacher at her school. Id.
at 10-11. DHS assessed A.S.’s home and found it to be appropriate. Id. at
10. Since June 2018, Child lived with A.S. or Child’s aunt and was afraid to
return home. Id. at 12, 17. The assessment also found that Child was not
up-to-date with medical, dental or vision appointments. Id. at 8.
DHS visited Father’s home where he resided with Child’s 15-year-old
younger brother. Id. at 9. In his conversation with DHS, Father reported he
was trying to find employment. Id. at 4. He also denied all of Child’s
allegations and suggested that Child had only left for the day. Id. at 10. DHS
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1 Child’s mother died approximately four years earlier. N.T., 9/24/18, at 6.
2 Child did not testify at the hearing. The court spoke with Child off the record,
later reporting that Child only wanted to know how the case would proceed.
Id. at 24.
3 At the time, Child worked at a McDonald’s restaurant. Id. at 7.
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determined that the home was appropriate and had adequate food. Id. at 9,
14. Although there were allegations that Father was behind on his rent, DHS
found that by September 2018, he was only behind $18.00 and needed to pay
a water bill. Id. at 9. DHS could not assess the safety of Child’s brother
because he was in Puerto Rico at the time. Id. at 9, 23. The caseworker
needed to perform a closing visit to complete her investigation. Id. at 23.
On September 10, 2018, DHS filed a dependency petition. On
September 24, 2018, the juvenile court conducted the adjudicatory hearing.4
At the hearing, DHS presented the testimony of DHS social worker Amber
Daniels, who testified to the facts set forth above.5 Father testified on his own
behalf. On the same date, the court entered an order adjudicating Child
dependent; placing Child in kinship care; referring Father to the Achieving
Reunification Center (ARC) for financial counseling, healthy relationships and
employment workshops; and ordering Father to allow a Community Umbrella
Agency (CUA) into his home to conduct a home assessment and obtain
appropriate clearances for all adults residing in Father’s home. Order of
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4Father was represented by counsel, and a guardian ad litem represented
Child’s legal interests.
5 The notes of testimony are somewhat unclear as to the witness for DHS. At
the beginning of the hearing, Ms. Daniels identified herself as the DHS social
worker, and the hearing transcript identifies DHS’s witness as, “DHS SOCIAL
WORKER”. N.T., 9/24/18, at 2, 4-6. However, DHS also had a court
representative, Sheila Overton, present.
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Adjudication and Disposition, 9/24/18, at 1-2. On October 10, 2018, Father
timely filed a notice of appeal along with a concise statement of errors
complained of on appeal.
On appeal, Father challenges the court’s determination that Child is
dependent. Father’s brief at 9-13. Further, Father asserts that the court erred
in ordering Father to participate in services and claims that the court
improperly required a home assessment and clearances for those residing in
his home. Id. at 13-14.6
II.
Initially, Father challenges the juvenile court’s determination that Child
is dependent.7 The Juvenile Act governs dependency proceedings. See 42
Pa.C.S. § 6301–6375. The Act permits a court to adjudicate a child dependent
if it finds that he or she meets the requirements of one of ten definitions listed
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6 In Father’s brief, he disclaims his prior assertion the court impermissibly
admitted hearsay testimony, stating, “[Father] will not make any argument
based on this issue for appeal, as it appears that the lower [c]ourt did not
admit and/or rely on hearsay or other inadmissible evidence in making its
decisions.” Father’s brief at 13.
7 In dependency proceedings, we review the juvenile court’s order pursuant
to an abuse of discretion standard of review. In the Interest of H.K., 172
A.3d 71, 74 (Pa. Super. 2017). As such, we must accept the court’s findings
of fact and credibility determinations if the record supports them, but we need
not accept the court’s inferences or conclusions of law. Id. “‘An abuse of
discretion is not merely an error of judgment, but is, inter alia, a manifestly
unreasonable judgment or a misapplication of law.’” In re A.T., 81 A.3d 933,
936 (Pa. Super. 2013) (quoting In re J.R., 875 A.2d 1111, 1114 (Pa. Super.
2005)).
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at Section 6302. The Act defines “dependent child” as follows, in relevant
part.
“Dependent child.” A child who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk, 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;
***
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.
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.” In re G.T., supra.
Father argues the juvenile court erred by adjudicating Child dependent
because DHS presented insufficient evidence to support a finding of
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dependency, pointing to a lack of testimony about employment, drug or
mental health issues. Father notes that Child stated that she was denied food
but argues that there was no explanation how this could occur when she works
at McDonald’s. Father concludes that the “evidence was anything but clear
and convincing that there were any dependency issues. Rather, it appears
that the child merely simply [sic] did not want to return to her father’s care,
for reasons uncertain.” Father’s Brief at 12-13.
The juvenile court determined “Child lacked proper parental care and
control based on the evidence presented by the credible testimony of the DHS
social worker.” Juvenile Court Opinion, 12/18/18, at 5. Further, the court
concluded Father’s testimony was not credible, as Father merely denied the
allegations without presenting any facts. Id.
The record supports the court’s determination that Child is dependent
because the testimony established that Father’s economic situation was
unstable, Child asserted there was no food in the house, and Father withheld
food from Child unless she gave him money. N.T., 9/24/18, at 4, 7-9. Father’s
actions toward Child made her afraid to come home and she has refused to
return to her home for months. Id. at 10-12, 17. Moreover, at the time of
the hearing, Child’s medical, dental and vision examinations were behind. Id.
at 8.
While Father argues that Child’s job makes it unlikely that he could have
denied her food, and further notes that the reason Child refuses to return
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home is unclear, the testimony presented by DHS, which the court found to
be credible, supports its finding of dependency. The credited testimony is
sufficient to establish, by clear and convincing evidence, that Child lacks
proper parental care and control for her physical, mental or emotional health
or morals. Accordingly, we discern no error of law or abuse of discretion in
the court’s determination that Child is dependent.
III.
Father also contends that the court erred in requiring Father to attend
financial counseling, healthy relationships and employment workshops.
Father’s brief at 13-14. Father argues as follows:
As stated above, because the child was not dependent, there was
not [a] valid basis for the lower [c]ourt’s orders that the father
attend the ARC for financial counseling, health[y] relationships
and employment workshops. Only when there is clear and
convincing evidence of dependency, may the [c]ourt make a
disposition for a parent. In re L.C. II, 900 A.2d 378, 381 (Pa.
Super. 2006). Here, based on the lack of evidence of any issues
regarding housing, employment, of an unhealthy relationship, in
addition to a lack of dependency issues, there was a lack of clear
and convincing evidence for any of these orders.
Id.This Court has explained the juvenile court’s ability to issue orders to
promote the best interests of dependent children as follows:
The court has statutory authority to issue orders to protect the
interests of dependent children. 42 Pa.C.S.A. § 6351; Tameka
M., supra, 525 Pa. at 354, 580 A.2d at 753. Such orders must
be based on the court’s determination of the course that is “best
suited to the protection and physical, mental, and moral welfare
of the child.” 42 Pa.C.S.A. § 6351(a). The court as well as the
child welfare agency also must be guided by the purposes of the
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Juvenile Act, which include preserving the unity of the family
whenever possible and providing “for the care, protection, safety
and wholesome mental and physical development of [dependent]
children.” 42 Pa.C.S.A. § 6351(a). The legal standard is the best
interests of the child. See In re T.R., 557 Pa. 99, 731 A.2d 1276,
1285 (1999) (Newman, J., dissenting); In re Griffin, 456
Pa.Super. 440, 690 A.2d 1192, 1200 (1997).
***
We of course realize that providing a telephone—or a home or a
job—to the parent of a child who has been adjudicated dependent
would in many cases aid not only the parent but also the
dependent child and promote family unity. In recognition of this
fact, many services are available to parents to provide assistance
and support for their efforts at reunification with their dependent
children. Indeed, the Juvenile Act requires that “reasonable
efforts” be made to reunify the family once a child has been
declared dependent. See 42 Pa.C.S.A. §§ 6351(e) & (f).
Nonetheless, the focus of the Juvenile Act is the dependent child,
not the parent. The statute cannot sustain an interpretation that
would allow the court to order parental services that do not
directly promote the best interests of the child or that are beyond
the statutory standard of “reasonable efforts” to reunify the
family.
In re J.R., 875 A.2d 1111, 1117–18 (Pa. Super. 2005).
Initially, for the reasons set forth earlier, we reject Father’s contention
that Child is not dependent. Additionally, with regard to the services ordered,
we conclude that the juvenile court did not abuse its discretion. The testimony
supported a finding that Father was looking for a job, was behind on his rent
and utility payments, albeit in a small amount, and Child refused to return
home because she was afraid. N.T., 9/24/18, at 4, 9, 17. The challenged
services related to employment, financial counseling and healthy
relationships. These services directly relate to deficiencies identified at the
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hearing, and we discern no abuse of discretion with regard to the ordered
services.
IV.
In Father’s final issue, Father argues as follows:
In addition to the fact that there was a lack of clear and convincing
evidence of dependency, there was no jurisdictional basis for the
lower [c]ourt to order clearances on persons that were not before
the court, who may have resided in the father’s home, and such
order would have violated their Constitutional rights to privacy
under the 4th and 14th Amendments to the United States
Constitution. Additionally, the social worker testified that she had
already assessed the home and that there were no issues in the
home, so there was no factual basis for a new home assessment.
Father’s brief at 14.
Initially, we consider whether Father has preserved this claim. In his
Rule 1925(b) statement, Father asserted: “Did the lower court err by ordering
appellant to allow CUA into his home, for a home assessment and to require
that everyone in the home submit to clearances, because the child in question
is not dependent, and any other children in the home were not before the
court?” Rule 1925(b) Statement, 10/10/18, at ¶ 4. This is markedly different
from his current argument that the order violates the constitutional rights of
others or that an assessment is not necessary because DHS previously
completed an assessment. Further, Father’s argument is devoid of any
development of his purported jurisdictional and constitutional issues. Because
the issues Father seeks to raise are not consistent with his Rule 1925(b)
statement, and Father fails to develop his argument in any meaningful way,
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we find that Father’s argument is waived. See Krebs v. United Refining
Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues.); see also In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal denied, 24 A.3d 364(Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010))
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”)
Moreover, even to the extent Father did not waive these issues, they
would merit no relief. With respect to Father’s argument regarding the
allegedly unconstitutional nature of the clearance requirement, Father asserts
the order is an infringement upon the rights of “persons that were not before
the court . . . .” Father’s brief at 14. In addition to failing to develop this
argument, Father also fails to argue how he has standing to raise this claim.
Father’s argument is based upon his assertion that the order infringes upon
the constitutional rights of persons who were not before the court. Father
lacks standing to attempt to litigate the unconstitutionality of the order as
applied to third parties. See Commonwealth v. Butler, 291 A.2d 89, 90
(Pa. 1972) (noting “it is settled law that appellant lacks standing to assert the
alleged deprivation of another’s constitutional rights.”).
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Further, the court did not abuse its discretion in ordering a home
assessment. While Father argues that the testimony established that Father’s
home was appropriate, the DHS witness also testified that she needed to
return to complete her investigation. N.T., 9/24/18, at 23. Accordingly, the
court did not abuse its discretion by ordering a further home assessment.
For the foregoing reasons, we affirm the juvenile court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/19
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