In the Interest of: J.P. & K.P., Minors ( 2016 )


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  • J-S72001-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: J.P. AND             :     IN THE SUPERIOR COURT OF
    K.P., MINORS                             :          PENNSYLVANIA
    :
    :
    APPEAL OF: R.P., FATHER                  :         No. 763 MDA 2016
    Appeal from the Orders Entered April 21, 2016
    In the Court of Common Pleas of York County
    Juvenile Division at No(s): CP-67-DP-0000560-2006;
    CP-67-DP-0000561-2006
    BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
    MEMORANDUM BY GANTMAN, P.J.:                  FILED SEPTEMBER 27, 2016
    Appellant, R.P. (“Father”) appeals from the orders entered in the York
    County Court of Common Pleas, Juvenile Division, which adjudicated J.P. and
    K.P. (“Children”) dependent children and placed them in the custody of the
    York County Office of Children, Youth & Families (“CYF”).1 We affirm.
    The relevant facts and procedural history of this appeal are as follows.
    Children’s mother is deceased, and teenage Children regularly reside with
    Father.   On January 6, 2016, upon receiving a complaint that Father had
    overdosed on prescription pain medication, paramedics responded to
    Father’s and Children’s home and transported Father to the hospital.      On
    1
    Ordinarily, where one or more orders resolves issues arising on more than
    one docket, an appellant must file separate notices of appeal from each
    order. See Pa.R.A.P. 341, Note. Father filed one notice appeal arising out
    of two orders respectively adjudicating Children dependent. Had Father
    complied with Rule 341, it is likely his notices of appeal would have
    consolidated in any event. Accordingly, we decline to penalize Father for his
    non-compliance with Rule 341.
    _____________________________
    *Retired Senior Judge assigned to the Superior Court.
    J-S72001-16
    January 8, 2016, CYF received a referral regarding Father in light of the
    January 6th incident. Also on January 8, 2016, CYF filed motions for special
    relief, requesting that Father have only supervised contact with Children. By
    orders dated and filed on January 11, 2016, the court preliminarily granted
    CYF’s motions and prohibited Father from having contact with Children
    without the supervision of Children’s paternal grandparents.
    On January 21, 2016, the court held a hearing on CYF’s motions. By
    orders dated and filed January 21, 2016, the court granted CYF’s motions,
    maintained the January 11th orders, and directed that Children would
    temporarily reside with their paternal grandparents although Father retained
    legal and physical custody of Children. Through the January 21 st orders, the
    court also required Father to undergo drug and alcohol evaluation.        On
    February 26, 2016, Children resumed residency with Father.
    On March 2, 2016, police responded to the home of a neighbor of
    Father. After visiting the neighbor, J.P. refused to return home; and Father
    appeared at the neighbor’s home to retrieve J.P. After investigation, police
    believed Father was under the influence of prescription pain medication and
    contacted CYF.   On March 3, 2016, CYF filed applications for emergency
    protective custody. A master held a shelter care hearing on March 7, 2016.
    By orders dated March 7, 2016, and filed on March 8, 2016, the court placed
    Children in the care of emergency caregivers and in CYF’s legal and physical
    custody.
    -2-
    J-S72001-16
    On March 9, 2016, CYF filed dependency petitions requesting the court
    to adjudicate Children dependent. The court held a dependency hearing on
    March 16, 2016, which continued on April 21, 2016. During the hearing, the
    court heard the testimony of Father, the police officer who responded to the
    March 2, 2016 incident, and a drug and alcohol monitoring specialist who
    collected drug test samples from Father.        The Children also testified in
    camera. By orders dated and filed on April 21, 2016, the court adjudicated
    Children dependent, directed Children to remain under the care of
    emergency caregivers, and maintained CYF’s physical and legal custody of
    Children.     On May 11, 2016, Father filed a timely notice of appeal and a
    concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
    1925(a)(2)(i).
    Father raises one issue for our review:
    DID THE TRIAL COURT ERR IN ADJUDICATING
    [CHILDREN] DEPENDENT CHILDREN AND REMOVING THEM
    FROM THE CARE OF THEIR FATHER WITHOUT CLEAR AND
    CONVINCING EVIDENCE THAT HE WAS UNABLE TO CARE
    FOR THEM?
    (Father’s Brief at 5).
    The applicable scope and standard of review for dependency cases is
    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 lower court’s inferences or conclusions of law.
    Accordingly, we review for an abuse of discretion.
    -3-
    J-S72001-16
    In re A.B., 
    63 A.3d 345
    , 349 (Pa.Super. 2013) (quoting In re R.J.T., 
    608 Pa. 9
    , 26-27, 
    9 A.3d 1179
    , 1190 (2010)).
    We accord great weight to this function of the hearing
    judge because [the court] is in the position to observe and
    rule upon the credibility of the witnesses and the parties
    who appear before [the court]. Relying upon [the court’s]
    unique posture, we will not overrule [its] findings if they
    are supported by competent evidence.
    In re A.H., 
    763 A.2d 873
    , 875 (Pa.Super. 2000) (quoting In re B.B., 
    745 A.2d 620
    , 622 (Pa.Super. 1999)) (citations omitted). See also In re L.Z.,
    ___ Pa. ___, ___, 
    111 A.3d 1164
    , 1174 (2015) (reiterating standard of
    review in dependency cases requires appellate court to accept trial court’s
    findings of fact and credibility determinations if record supports them, but
    appellate court is not required to accept trial court’s inferences or
    conclusions of law); In re D.P., 
    972 A.2d 1221
    , 1225 (Pa.Super. 2009),
    appeal denied, 
    601 Pa. 702
    , 
    973 A.2d 1007
     (2009) (stating applicable
    standard of review in dependency cases is “abuse of discretion”). Further, in
    placement and custody cases involving dependent children:
    The trial court, not the appellate court, is charged with the
    responsibilities of evaluating credibility of the witnesses
    and resolving any conflicts in the testimony. In carrying
    out these responsibilities, the trial court is free to believe
    all, part, or none of the evidence. When the trial court’s
    findings are supported by competent evidence of record,
    we will affirm even if the record could also support an
    opposite result.
    In re S.G., 
    922 A.2d 943
    , 947 (Pa.Super. 2007).
    On appeal, Father asserts his testimony at the dependency hearing
    -4-
    J-S72001-16
    demonstrated     his   physician   was    no   longer   prescribing   Father   pain
    medication.     Father maintains his testimony and drug tests established
    Father was not taking prescription pain medication as of April 21, 2016.
    Father submits there was no clear necessity for separation because he was
    not taking prescription pain medication, and he was immediately able to
    provide Children proper parental care.         Father avers no direct evidence
    established he was unable to parent Children. Father concludes this Court
    should reverse the court’s dependency decisions and return Children to
    Father’s custody. We disagree.
    The Juvenile Act defines a dependent child, in pertinent part, as
    follows:
    § 6302. Definitions
    “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 [the child’s] 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.A. § 6302 (emphasis added).
    If the court finds that the child is dependent, then the
    court may make an appropriate disposition of the child to
    protect the child’s physical, mental and moral welfare,
    including allowing the child to remain with the parents
    -5-
    J-S72001-16
    subject to supervision, transferring temporary legal
    custody to a relative or a private or public agency, or
    transferring custody to the juvenile court of another state.
    Id. This Court has explained:
    [T]he dependency of a child is not determined “as to” a
    particular person, but rather must be based upon two
    findings by the trial court: whether the child is currently
    lacking proper care and control, and whether such care
    and control is immediately available.
    In re J.C., 
    5 A.3d 284
    , 289 (Pa.Super. 2010) (citations omitted).
    “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.”    In re G., T., 
    845 A.2d 870
    , 872
    (Pa.Super. 2004). Our Supreme Court stated:
    A court is empowered by 42 Pa.C.S. § 6341(a) and (c) to
    make a finding that a child is dependent if the child meets
    the statutory definition by clear and convincing evidence.
    If the court finds that the child is dependent, then the
    court may make an appropriate disposition of the child to
    protect the child’s physical, mental and moral welfare,
    including allowing the child to remain with the parents
    subject to supervision, transferring temporary legal
    custody to a relative or a private or public agency, or
    transferring custody to the juvenile court of another state.
    42 Pa.C.S. § 6351(a).
    In re M.L., 
    562 Pa. 646
    , 649, 
    757 A.2d 849
    , 850-51 (2000).
    Even after a child has been adjudicated dependent,
    however, a court may not separate that child from
    his…parent unless it finds that the separation is clearly
    necessary. Such necessity is implicated where the welfare
    of the child demands that [the child] be taken from [the
    child’s] parents’ custody.
    In re G., T., 
    supra at 873
     (citations omitted).
    -6-
    J-S72001-16
    Instantly, the juvenile court reasoned as follows:
    Both minor [C]hildren testified in chambers with counsel
    present.     The [c]ourt found both minor [C]hildren’s
    testimony to be very credible and well-substantiated
    regarding their fear of returning to Father’s care based on
    his conduct over the past several months. Both minor
    [C]hildren testified in significant detail about numerous
    incidents in which Father was impaired while they were in
    his care. More specifically, minor [C]hildren testified to
    occasions when Father was impaired while driving a
    vehicle, preparing meals, and shopping at the grocery
    store. Testimony established that on January 6, 2016, it
    appeared as though Father had a drug overdose or
    reaction that left him very impaired. When…J.P.[] tried to
    assist Father, Father was physically aggressive toward
    [her].
    The [c]ourt acknowledges Father’s testimony regarding his
    efforts to eliminate the use of all medications. Father
    admitted to being addicted to prescription medications but
    testified that he is no longer having addiction issues.
    However, the [c]ourt remains concerned over the safety of
    [Children] in his care. Father has stated in the past that
    he has overcome his addiction issues but shortly thereafter
    he was right back to using medications.         Testimony
    established that when Father had custody of [the] minor
    [C]hildren supervised by the grandparents his conduct
    improved, but within one (1) week of the supervision
    requirements being lifted, Father was again impaired while
    caring for the minor [C]hildren and the minor [C]hildren
    were fearful of being in his care.
    Overall, the [c]ourt did not find Father’s testimony fully
    credible. Father admitted to his addiction to prescription
    medications but denied ever inhaling crushed medications.
    However, both minor [C]hildren credibly testified to
    witnessing Father inhale a white powder substance.
    (Juvenile Court Opinion, filed June 6, 2016, at 1-2).     Additionally, at the
    conclusion of the dependency hearing, the court made the following remarks
    on the record:
    -7-
    J-S72001-16
    The [c]ourt believes based on the testimony from March
    16th and today in total that there is clear and convincing
    evidence for a basis of adjudication of dependency.
    The [c]ourt would emphasize that while the [c]ourt
    believes that [F]ather has taken appropriate steps to
    address the issues that brought him and…[C]hildren into
    the jurisdiction of the court to begin with, that those steps
    are very recent, meaning especially on medication that
    [Father] ha[s] worked [him]self off by [Father’s] testimony
    and the statement from [Father’s] doctor off all medication
    currently.
    The [c]ourt’s concern though is that is a recent change and
    while on the medication [Father’s] conduct was of
    significant concern as it relates to the safety of…[C]hildren
    and [Father’s] ability to provide proper care and control.
    (N.T. Dependency Hearing, 4/21/16, at 51-52).         The record supports the
    juvenile court’s decision that Children are dependent children, and their
    separation from Father is clearly necessary. See In re J.C., 
    supra;
     In re
    G., T., 
    supra.
     Accordingly, we affirm.
    Orders affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/27/2016
    -8-
    

Document Info

Docket Number: 763 MDA 2016

Filed Date: 9/27/2016

Precedential Status: Precedential

Modified Date: 4/17/2021