In Re: B.S., Appeal of: T.B. ( 2014 )

J. A27015/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.B., MOTHER, : No. 532 WDA 2014
:
Appellant :
Appeal from the Order Entered March 4, 2014,
in the Court of Common Pleas of Allegheny County
Juvenile Division at No. Docket Number 29-14
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014
T.B. (“Mother”) appeals from the order entered March 4, 2014, which
granted the petition filed by the Allegheny County Office of Children, Youth
and Families (“OCYF”) seeking to adjudicate as dependent her child, B.S.,
(“Child”), pursuant to Section 6302 of the Juvenile Act, 42 Pa.C.S.A.
§ 6302(1).1 We affirm.
Child was born in April of 2009. OCYF became aware of Child on
January 3, 2014, after receiving a report that both of Child’s parents had
been arrested on January 2, 2014, and were incarcerated in the Allegheny
County Jail. The incident leading to their incarceration involved the armed
robbery of a pizza shop in Pittsburgh. Father went into the shop with a gun
1
We note that Child’s father, D.S. (“Father”), stipulated to dependency and
has not filed an appeal in the instant matter.
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and demanded money out of the cash register. Mother served as the
getaway driver. The OCYF caseworker located Child at the home of his
maternal uncle. An emergency custody authorization was obtained, and
after determining that the maternal uncle was an appropriate caregiver,
Child was permitted to remain in the maternal uncle’s home.
On January 6, 2014, a shelter hearing was held, and the court
determined that Child was to remain in the care of his maternal uncle. OCYF
filed a petition for dependency under Section 6302(1), alleging Child was
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.
On March 4, 2014, an adjudicatory hearing was held. Father
stipulated to dependency due to the fact that he was currently incarcerated
and awaiting trial for the charges of carrying a firearm without a license,
robbery, conspiracy, and three counts of recklessly endangering another
person. Mother stipulated that the following criminal charges were filed
against her: one count of felony one robbery, one count of felony one
conspiracy, robbery, infliction of serious bodily injury, and one count of
driving while operating privilege is suspended; she was awaiting formal
arraignment. Mother did not stipulate to dependency since she was released
on bail prior to the adjudicatory hearing, and she claimed she was available
to parent Child.
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Brian Huber (“Huber”), the intake caseworker, testified that he met
with both parents on January 6, 2014, at the Allegheny County Jail. (Notes
of testimony, 3/4/14 at 12.) Huber testified that Father told him the reason
for the robbery was that the couple was having difficulty paying their bills.
(Id. at 13.) At the time of the robbery, their bills amounted to $1,800.
(Id.) According to Huber, Mother told him both she and Father were
working full-time; however, Father’s hours kept getting reduced. (Id. at
18.) Huber stated Mother told him Father’s reduced hours was the reason
they were unable to pay their bills. (Id.) Child was found dependent. The
trial court ordered Child to be returned to Mother’s custody with in-home
services to remain in place.
Mother appeals and raises two issues for our review:
1. Did the Trial Court abuse its discretion by
misapplying the law when it found dependency
based solely on [Mother’s] economic status
and criminal allegations pending against her?
2. Did the Trial Court abuse its discretion by
making a decision that was manifestly
unreasonable when it found dependency
despite a record that [Mother] was ready to
provide proper parental care and control at the
time of trial?
Mother’s brief at 6.
In In re R.J.T., 9 A.3d 1179 (Pa. 2010), the Pennsylvania Supreme
Court set forth our standard of review for dependency cases:
[T]he standard of review in dependency cases
requires an appellate court to accept the findings of
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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.
Id. at 1190.
To adjudicate a child dependent, a trial court must determine 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, 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.
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, in
this case OCYF, to demonstrate by clear and convincing evidence that Child
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meets that statutory definition of dependency. See In the Interest of
T.M., 689 A.2d 954, 955 (Pa.Super. 1997).
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., 757 A.2d 849, 850-851 (Pa. 2000).
Initially, Mother asserts that the trial court incorrectly found that Child
was without proper parental care and control because of her economic status
and pending criminal charges. Mother’s brief goes on, at length, to question
the trial court’s conclusion that she was involved in the criminal episode
described by Father. Mother also argues that Child could not have been at
risk when Child was not in their immediate care.
Regarding the pending criminal charges, the record indicates that
Mother’s counsel stated the following:
We would stipulate to the existence of the criminal
charges because that is a matter of public record;
and mother is not denying it.
Notes of testimony, 3/4/14 at 6.
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Mother is willing to stipulate to the fact that
she currently has criminal charges filed against her.
Those charges being, one count of felony one
robbery, one count of felony one conspiracy,
robbery, inflict serious bodily injury. [T]he third
charge is one count of misdemeanor three, driving
while operating privilege is suspended.
Your Honor, it’s my understanding that those
charges were filed according to the DJS (inaudible)
on January 2, 2014. They are still pending; and the
criminal case it’s my understanding is awaiting
formal arraignment at this time.
Id. at 9.
Huber testified that Father and Mother were arrested and both were
incarcerated when he met them on January 6, 2014, and were facing
numerous criminal charges stemming from an incident involving the armed
robbery of a pizza shop on January 2, 2014. At the time of the March 4,
2014 hearing, Father remained in jail while Mother was out of jail and
awaiting formal arraignment. (Id. at 10.)
While Mother did not testify at the hearing, Huber testified Father
explained that because of the financial difficulties they were facing as a
family, “that’s why, they did what they did.” (Id. at 13.) After hearing the
testimony that both parents were arrested and charged as a result of their
actions in the same incident, and that Mother stipulated to the same charges
filed against her, there was ample evidence to conclude Mother had been
implicated in the events leading to criminal charges being filed against her.
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Mother also argues the trial court used her economic status against
her. Financial uncertainty alone would not be a basis for a finding of
dependency. In re R.R., 686 A.2d 1316, 1318 n.1 (Pa.Super. 1996).
However, our review of this matter reveals more than financial uncertainty
at issue here. While Mother did not testify, she responded to a question
posed by the trial court and stated she was not working. (Notes of
testimony, 3/4/14 at 38.) With her husband now incarcerated, this family is
arguably in a worse position than they were before January 2, 2014, the
date of the armed robbery.
The trial court noted:
Mother ha[s] made some progress upon being
released from jail. She was able to avoid eviction
and was cooperative with services. It appeared that
she had some support from her brother who lived in
the apartment next door to the family. While mother
was unsure about the future with regard to her
pending criminal charges, she appeared to have a
strong bond with [Child]. However, Mother’s
inability to financially support [Child] and decision to
resort to committing armed robberies to pay
household bills is troubling. Mother’s poor decision[-
]making skills coupled with her inability to support
[Child] is cause for concern for the court and
indicative that she cannot provide proper parental
care or control for [Child].
Trial court opinion, 4/30/14 at 3.
Clearly, the trial court considered more than Mother’s economic
situation when rendering its decision. Issues regarding housing, income,
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serious pending criminal charges, and poor decision-making by Mother all
combined to leave Child without proper parental care and control.
We observe Mother points out Child was with his maternal uncle when
the robbery took place. As such, Mother contends Child could not be at risk
because he was not in his parents’ immediate control. (Mother’s brief at
13.) It appears Mother is saying the court should look favorably on the fact
she and Father did not have Child with them during the armed robbery.
Mother gets no credit for this claim. By committing this crime, Father is
incarcerated and Mother could soon be joining him. It is very possible Child
will be without either of his parents for some time.
In her second issue, Mother argues the trial court made a decision that
was manifestly unreasonable, as Mother was ready to provide proper
parental care and control at the time of trial. Mother points to the trial
court’s recognition that she “had made some progress upon being released
from jail” to support her argument that since the financial crisis had been
abated, a finding of dependency was manifestly unreasonable. (Id. at 13-
14.)
In its opinion, the trial court notes that it was not until the dependency
petition was filed that the family sought any type of services to assist them
with rent or utilities. (Trial court opinion, 4/30/14 at 2.) Samantha Parsons
(“Parsons”), the family services caseworker, testified she met with Mother
and made a referral for in-home services to provide assistance and connect
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the family with community resources. (Notes of testimony, 3/4/14 at 25-
26.) Parsons noted the family was not working with any of these services
prior to their arrest. (Id. at 26.) Until OCYF became involved, Mother did
not have the wherewithal to resolve her financial problems. The trial court
properly based its finding of dependency on prognostic evidence that Mother
was unable to use good judgment to effectively resolve her financial crisis
without continued OCYF assistance and court supervision. Judges are
permitted to use “prognostic evidence” when deciding the dependency status
of a minor. In Re: M.W., 842 A.2d 425, 430 (Pa. Super. 2004).
We discern no abuse of discretion by the trial court based on the
totality of the circumstances in this case. The trial court permitted Child to
remain in Mother’s custody with in-home services to remain in place. The
court will continue to review this matter at the permanency hearings and
consider the outcome of Mother’s pending criminal matter. Upon careful
review, we conclude OCYF met its evidentiary burden to support the
adjudication order. Accordingly, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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