In the Interest of: S.P. Appeal of: W.R.F. ( 2017 )

J-S26045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: W.R.F. :
:
:
:
:
: No. 2052 MDA 2016
Appeal from the Order Entered November 30, 2016
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000295-2016
BEFORE: BOWES, DUBOW, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 15, 2017
W.R.F. (“Guardian”) appeals from the order of the trial court dated
November 28, 2016, and entered on November 30, 2016, that (1)
adjudicated S.P. (“Child”) (born in October of 2002), the female child of S.D.
(“Mother”), dependent pursuant to 42 Pa.C.S. § 6302, (2) removed Child
from the home of Guardian, and (3) ordered Child placed in the temporary
custody of the Lancaster County Children and Youth Social Service Agency
(“CYS” or “Agency”), along with her siblings, B.K., J.B., and J.R., who had
resided with Mother.1 We affirm.
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*
Former Justice specially assigned to the Superior Court.
1
L.P. (“Father”) did not challenge the order by filing a separate appeal, nor
did he file a brief in the instant appeal.
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In its opinion entered on January 17, 2017, the trial court aptly
summarized the relevant factual and procedural history of this matter, which
we adopt as this Court’s own. See Trial Ct. Op., 1/17/17, at 1-5.
Importantly, Guardian resides in a non-winterized camper, in which she and
her husband sleep on one side of a vinyl partition, and Child sleeps on a
bunk bed where Guardian’s teenaged son also sleeps. Id. at 2.
Additionally, there were reports that Guardian’s nine-year-old daughter also
sleeps in the camper when she is not residing with her grandmother. Id. at
2-3. CYS had an open file regarding allegations that Guardian’s nine-year-
old daughter had been sexually abused while in contact with someone else
when she was sleeping. Id. The open matter involving Guardian’s family
contained allegations concerning the appropriateness of the housing, and the
lack of mental health treatment for the nine-year-old. Id. at 3. After Child
was removed from Guardian’s residence, she was placed in the Bethany
Shelter with her brother, B.K. Id. at 7.
At the November 28, 2016 adjudicatory/dispositional hearing, the
Agency presented the testimony of Kayla Teeples, an Agency caseworker
assigned to the family. N.T., 11/28/16, at 7. Next, the Agency presented
the testimony of A.W., the intake supervisor with the Agency who supervised
the casework in this matter. Id. at 36. Thereafter, the guardian ad litem
(“GAL”) questioned Child in the trial court judge’s chambers, and Guardian’s
counsel cross-examined the child. Id. at 43. Finally, the GAL questioned
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B.K. in the trial court judge’s chambers, and counsel for Mother and counsel
for Guardian cross-examined B.K. Id. at 51. The trial court admitted Child’s
permanency plans into evidence as CYS Exhibit No. 1.
At the conclusion of the hearing, the trial court stated as follows:
THE COURT: . . . Based on the testimony, I do find the
children to be dependent children, and I will continue them
in the legal and physical custody of the . . . Agency. The
child permanency plans appear to be appropriate, so I
approve all of the plans.
In order for [Mother] to have contact with the children,
she’s going to be drug tested, and she has to be negative,
and they have to be valid. That will be done prior to any
visits.
And concerning [Child], while I understand [Child]
would like to be with [Guardian], I do not believe that the
home meets the criteria that would be necessary as
kinship placement. And I’m not indicating that I think she
was inappropriate as far as trying to obtain the medical
treatment and that type of thing. I just think that the
whole process was completely lacking in that she did not
have the necessary guardianship in order to consent to
certain things. So I do believe that [Child] is also a
dependent child.
I’m also directing the Agency to find some other
placement for both [B.K.] and [Child]. I just don’t think
that the Bethany Shelter is an appropriate place for them.
Find a foster home, even if it’s a respite home, for a period
of time until you can do an assessment. Hopefully, all four
children can be together because I think it’s really
necessary that they are together. . . .
N.T. at 59-60.
On November 28, 2016, the trial court adjudicated Child dependent
and ordered that Child be placed in the legal and physical custody of the
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Agency. In its disposition order, the court stated that it found Child to be
without proper care or control, and that although reasonable efforts were
made to prevent Child’s removal from home, removal was in the best
interests of Child. See Order, 11/28/16, at 1-2.
On December 15, 2016, Guardian timely filed a notice of appeal along
with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Guardian raises two questions for our review:
I. Did the trial court err when it found that the [Agency],
by clear and convincing evidence, had met its burden to
demonstrate the [C]hild to be dependent as defined by
the Juvenile Act at 42 Pa.C.S. Section 6302?
II. Even if the [C]hild was properly adjudicated
dependent, did the court properly determine that removal
was a clear necessity in that alternative services that
would enable the [C]hild to remain with Guardian were
unfeasible?
Guardian’s Brief at 7.2
We will address Guardian’s issues together. With regard to her first
issue, Guardian argues that there was no evidence that she was not meeting
Child’s basic needs. Guardian states that, although she was having
difficulties with insurance, Child did not have a true medical emergency
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2
Guardian stated her issues somewhat differently in her concise statement.
Nevertheless, we, find them preserved for our review. See Krebs v. United
Ref. Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the Statement of Questions Involved in
her brief on appeal).
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when Guardian took Child to the hospital for a sprained ankle. Id. at 12.
Guardian contends that the drastic measure of placing legal and physical
custody of Child with the Agency was not required. Guardian urges that the
trial court erroneously applied a best interests standard, instead of a clear
and convincing evidence standard, when it considered the housing available
to Guardian and found Child to be dependent.
Regarding her second issue, Guardian contends that, even if the trial
court properly found Child dependent, there was no clear necessity to
remove Child from Guardian’s home. Guardian claims that the trial court’s
main reason for finding Child dependent was her inability to obtain medical
care for Child, since Mother had retained legal custody of Child. Guardian
states that, had the court awarded legal custody to her, she would have
been able to obtain medical treatment for Child. Id. at 10.
The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows.
[T]he standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by
the record, but does not require the appellate court to
accept the lower court’s inferences or conclusions of law.
We review for abuse of discretion[.]
In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citations and
quotation marks omitted).
Section 6302 of the Juvenile Act defines a “dependent child” as:
[a] child who:
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(1) is without proper parental care or control,
subsistence, education as required by law, or other
care or control necessary for his physical, mental, or
emotional health, or morals. A determination that
there is a lack of proper parental care or control may
be based upon evidence of conduct by the parent,
guardian or other custodian that places the health,
safety or welfare of the child at risk[.]
42 Pa.C.S. § 6302(1).
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child.”
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 (citations and quotation marks omitted); see also In re J.C., 5
A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he burden
of proof in a dependency proceeding is on the petitioner to demonstrate by
clear and convincing evidence that a child meets that statutory definition of
dependency.” G., T., 845 A.2d at 872 (citation omitted).
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to
make a finding that a child is dependent if the child meets
the statutory definition by clear and convincing evidence.
If the court finds that the child is dependent, then the
court may make an appropriate disposition of the child to
protect the child’s physical, mental and moral welfare,
including allowing the child to remain with the parents
subject to supervision, transferring temporary legal
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custody to a relative or public agency, or transferring
custody to the juvenile court of another state. 42 Pa.C.S.
§ 6351(a).
Id. at 617 (citation omitted).
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.―
(1) The court shall conduct a permanency hearing
for the purpose of determining or reviewing the
permanency plan of the child, the date by which the
goal of permanency for the child might be achieved
and whether placement continues to be best suited
to the safety, protection and physical, mental and
moral welfare of the child. In any permanency
hearing held with respect to the child, the court shall
consult with the child regarding the child’s
permanency plan, including the child’s desired
permanency goal, in a manner appropriate to the
child’s age and maturity.
42 Pa.C.S. § 6351(e)(1).
Section 6351 of the Juvenile Act further prescribes the pertinent
inquiry for the reviewing court:
(f) Matters to be determined at permanency
hearing.―At each permanency hearing, a court shall
determine all of the following:
(1) The continuing necessity for and
appropriateness of the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for
the child.
(3) The extent of progress made toward alleviating
the circumstances which necessitated the original
placement.
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(4) The appropriateness and feasibility of the
current placement goal for the child.
(5) The likely date by which the placement goal for
the child might be achieved.
(5.1) Whether reasonable efforts were made to
finalize the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the
Commonwealth, whether the placement continues to
be best suited to the safety, protection and physical,
mental and moral welfare of the child.
* * *
(9) If the child has been in placement for at least
15 of the last 22 months or the court has determined
that aggravated circumstances exist and that
reasonable efforts to prevent or eliminate the need
to remove the child from the child’s parent, guardian
or custodian or to preserve and reunify the family
need not be made or continue to be made, whether
the county agency has filed or sought to join a
petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to
adopt the child unless:
(i) the child is being cared for by a relative
best suited to the physical, mental and moral
welfare of the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided
with necessary services to achieve the safe
return to the child’s parent, guardian or
custodian within the time frames set forth in
the permanency plan.
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* * *
(f.1) Additional determination.―Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall
determine one of the following:
(1) If and when the child will be returned to the
child’s parent, guardian or custodian in cases where
the return of the child is best suited to the safety,
protection and physical, mental and moral welfare of
the child.
(2) If and when the child will be placed for
adoption, and the county agency will file for
termination of parental rights in cases where return
to the child’s parent, guardian or custodian is not
best suited to the safety, protection and physical,
mental and moral welfare of the child.
(3) If and when the child will be placed with a legal
custodian in cases where return to the child’s parent,
guardian or custodian or being placed for adoption is
not best suited to the safety, protection and physical,
mental and moral welfare of the child.
(4) If and when the child will be placed with a fit
and willing relative in cases where return to the
child’s parent, guardian or custodian, being placed
for adoption or being placed with a legal custodian is
not best suited to the safety, protection and physical,
mental and moral welfare of the child.
* * *
(f.2) Evidence.―Evidence of conduct by the parent that
places the health, safety or welfare of the child at risk,
including evidence of the use of alcohol or a controlled
substance that places the health, safety or welfare of the
child at risk, shall be presented to the court by the county
agency or any other party at any disposition or
permanency hearing whether or not the conduct was the
basis for the determination of dependency.
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(g) Court order.―On the basis of the determination
made under subsection (f.1), the court shall order
the continuation, modification or termination of
placement or other disposition which is best suited
to the safety, protection and physical, mental and
moral welfare of the child.
42 Pa.C.S. § 6351(f)-(g) (emphasis added). Thus, the Juvenile Act instructs
the trial court to consider the disposition that is best suited to the safety,
protection and physical, mental and moral welfare of the child.
Here, the trial court found Mother has a history of drug abuse and is
unable to provide Child with proper parental care and control at present.
See Trial Ct. Op. at 6-7. In fact, Mother concedes that the trial court
properly found Child dependent. See Mother’s Brief at 3. Moreover, the
trial court properly found from the evidence that Father is not available to
provide Child with proper parental care and control. See Trial Ct. Op. at 6-
7. Additionally, the trial court found that Guardian is unable to provide the
necessary care for Child, both because Guardian is not authorized to take
over Child’s medical needs and consent to necessary procedures, and
because her housing is inappropriate for Child. Id. at 7-8. Accordingly, the
trial court properly found from the evidence that Child is dependent, as Child
is without proper parental care and control, and such care and control are
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not immediately available from her parents or Guardian.3 See In Interest
of L.Z., 111 A.3d at 1174; In re G., T., 845 A.2d at 872.
Next, with regard to the disposition of Child, Guardian argues that a
temporary transfer of legal custody to her would have resolved the issue of
medical consent. Guardian’s Brief at 19. Further, Guardian suggests that
the trial court could have included authorization for her to obtain evaluations
and treatment for Child in its dispositional order. Id. (citing Pa.R.J.C.P.
1515(A)(i)); see also Pa.R.J.C.P. 1512(D)(1)(j) (relating to authorizations
for medical treatment in dispositional orders).4 She also suggests that the
court could have imposed any other limitations on the sleeping
arrangements in her camper-home, as the court identified Guardian’s
housing as a problem.
This Court has thoroughly reviewed the record in this matter. We are
satisfied that the trial court considered the disposition that is best suited to
the safety, protection, and physical, mental and moral welfare of Child in
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3
Although Guardian relies on In the Interest of T.M., 689 A.2d 954 (Pa.
Super. 1996), that case is distinguishable from the instant matter. In T.M.,
the county agency appealed, alleging that the trial court abused its
discretion in failing to find the subject child dependent. Id. at 955. This
Court agreed with the trial court that, under the facts in that case, even if
the parents needed to learn parenting skills for their infant, there was not
sufficient clear and convincing evidence that the subject child lacked proper
parental care or control necessary for her health or well-being. Id. at 957.
4
Rule 1512(D)(1)(j) was previously found at Rule 1515(D)(1)(i), which was
amended on July 13, 2015, and became effective on October 1, 2015.
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removing her from Guardian’s camper-home, where Child shares a bunk bed
with Guardian’s teenaged son, and not reunifying Child with Mother at
present.5 See In Interest of L.Z., 111 A.3d at 1174; In re D.A., 801 A.2d
at 617. Therefore, we find the disposition appropriate and affirm the order
of the trial court on the basis of the court’s well-reasoned opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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5
In fact, Mother agrees with Child’s removal from Guardian’s camper-home.
See Mother’s Brief at 3.
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