In the Interest of: D.A., Appeal of: R.B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.A., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.B.
No. 520 WDA 2014
Appeal from the Order Entered February 26, 2014
in the Court of Common Pleas of Beaver County
Criminal Division at No.: 180-CP-04-DP-040-2013
IN THE INTEREST OF: C.A., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.B.
No. 521 WDA 2014
Appeal from the Order Entered February 26, 2014
in the Court of Common Pleas of Beaver County
Criminal Division at No.: 302-2006, Case No. 130453, CP-04-DP-508
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 24, 2014
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*
Retired Senior Judge assigned to the Superior Court.
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R.B. (Mother) appeals from the orders dated February 25, 2014, and
entered February 26, 2014, which adjudicated her minor children, D.A. (born
in December of 2008) and C.A. (born in January of 2005), dependent and
ordered that they remain in foster care.1 We affirm.
On November 1, 2013, Beaver County Children and Youth Services
(CYS) filed applications for emergency protective custody of D.A., C.A., and
their older brother, Q.A. In the applications, CYS alleged that Mother had
been incarcerated after she bit Q.A. and struck him with a wooden umbrella
handle, and that she was unable to care for the children. CYS also filed
dependency petitions.
As a result, the trial court issued orders for emergency protective
hearing followed soon after, and the children remained in the custody of
CYS. According to the trial court, CYS withdrew the allegations of
dependency related to Q.A. after he turned eighteen. (See Trial Court
Opinion, 4/25/14, at 3). However, CYS filed a Petition to Amend
Dependency Petition, which the court granted on January 30, 2014. The
trial court states that the amended dependency petition, which is not
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1
and did not appear at any point during the underlying proceedings, despite
efforts to insure that he was given adequate notice. (See N.T. Hearing,
2/18/14, at 81-82, 117-19, 126-27).
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contained in the certified record, included new allegations that Mother had
been neglecting D.A. and C.A., and disciplining them inappropriately. (See
id. at 3-4).
Dependency hearings were held on February 18 and 25, 2014. During
the hearings, the trial court heard the testimony of both C.A. and Q.A. D.A.
did not testify. The court also heard the testimony of CYS employees
Jennifer Wright and Denise Dymond.
When asked about alleged acts of violence perpetrated by Mother, C.A.
See N.T. Hearing,
2/18/14, at 15, 17-19, 37). During the first occasion, C.A. explained that
her underwear on, and struck
her three times with a belt. (See id. at 17-19). C.A. indicated that this
incident followed an argument that Mother had with Father. (See id. at 14-
16).
Mother struck C.A. several times with a blue broomstick. (See id. at 19,
See id.
at 38). C.A. claimed that she was left bleeding after Mother struck her, but
admitted that the bleeding resulted from a cut that existed prior to the
incident. (See id. at 56). C.A. explained that this incident was a result of
her accidently starting a fire in the house with a lighter. (See id. at 37).
Id. at 20). C.A.
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Id. at 33). In addition to these incidents,
the previous Christmas, and that Mother had, in fact, punched C.A. in the
face before. (Id. at 22).
C.A. also testified about an incident of alleged sexual abuse. C.A.
claimed that a tall, skinny man with black hair and a tattoo on his left arm
touched her inappropriately when she was seven years old. (See id. at 38-
39, 42-43). C.A. claimed that she told Q.A. about the incident, but that she
Id. at 44; see id. at 39). C.A. indicated that the incident
took place while Q.A. was babysitting her. (See id. at 58).
Id. at 124)
Id.
Id. at
124-25).
Q.A. also testified that C.A. told him about the alleged sexual abuse,
but indicated that it took place during a period of time when Q.A. had been
kicked out of the house, and that he was not babysitting her when it
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happened. (See id. at 122). Q.A. stated that he tried to tell Mother about
Id. at 123).
Q.A. claimed that he could point out the perpetrator if he saw him again.
(See id. at 157-59). When asked about his brother, D.A., Q.A. agreed that
Id. at
133).2 Q.A. claimed that Mother did little to care for D.A., and that he had
. . giving [D.A.]
Id.).
Following these hearings, the trial court entered its orders adjudicating
D.A. and C.A. dependent on February 26, 2014. Mother timely filed notices
of appeal on March 27, 2014, along with her concise statements of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2), (b). See Pa.R.A.P. 1925(a)(2), (b). The Court filed
an opinion on April 25, 2014. See Pa.R.A.P. 1925(a).
Mother now presents the following issues for our review.
1. Is it appropriate for [CYS] to remove two minor children from
of [Mother] because of her temporary incarceration as a result of
an incident with a third child, and did [CYS] exercise reasonable
efforts to eliminate the need for removal of the children once
[Mother] was released on bail?
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2
This description of D.A. was confirmed by Denise Dymond. (See N.T.
Hearing, 2/18/13, at 107).
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2. Did [CYS] satisfy the burden of proof in the dependency
proceeding to demonstrate by clear and convincing evidence that
the children met the statutory definition of dependent?
3. Is it appropriate for the [trial c]ourt to rely on instances of
inappropriate discipline of a child to support a finding of
dependency, and if so, was there clear and convincing evidence
of inappropriate discipline of the child so as to support a finding
of dependency in this case?
4. Is it appropriate for the [trial c]ourt to rely on instances of
failure to supervise a child to support a finding of dependency,
and if so, was there clear and convincing evidence to establish
instances of failure to supervise the child so as to support a
finding of dependency in this case?
5. If only one instance of failure to supervise the child can be
established with clear and convincing evidence, is that one
instance sufficient to support a finding of dependency?
6. In this case, was it an error for the [trial c]ourt to find that
the sibling of [C.A.] was dependent solely based upon the finding
that [C.A.] was dependent?
-5).3
Our Supreme Court set forth our standard of review for
dependency cases 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
we review for an abuse of discretion.
In re R.J.T., . . . 9 A.3d 1179, 1190 ([Pa.] 2010) (citation
omitted).
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3
While Mother lists six issues for our review, her brief contains only four
separate argument sections. See Pa.R.A.P. 2119(a).
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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.
42 Pa.C.S.A. § 6302.
convincing as to enable the trier of facts to come to a clear
conviction, without hesitancy, of the truth of the precise facts in
In re C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997)
(citation omitted).
In accordance with the overarching purpose of the Juvenile
see
dependent when he is presently without proper parental care
In re R.T.,
405 Pa.Super. 156, 592 A.2d 55, 57 (1991) (citation omitted).
(1) is geared to the particularized needs of the child and (2) at a
In re
C.R.S., supra at 845 (citation omitted).
In regard to when a child should be removed from parental
custody, we have stated:
The law is clear that a child should be removed
of a state agency only upon a showing that removal
-being. In
addition, this court had held that clear necessity for
removal is not shown until the hearing court
determines that alternative services that would
enable the child to remain with her family are
unfeasible.
In re K.B., . . . 419 A.2d 508, 515 ([Pa. Super.] 1980)
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not for this [C]ourt, but for the trial court as fact finder, to
In re S.S., . . . 651 A.2d 174, 177 ([Pa.
Super.] 1994).
In re A.B., 63 A.3d 345, 349-50 (Pa. Super. 2013).
In her fi
and D.A. to her after she was released from jail, but prior to the dependency
(Id.
inter alia, the new
allegations of abuse against C.A. (Trial Ct. Op., at 9-10).
err by failing to order C.A. and D.A. returned to Mother after her release
from incarceration, the trial court later adjudicated both children dependent
and concluded that they should remain in foster care. It appears that the
adjudicated dependent, regardless of whether they were returned to her
prior to the dependency hearing. No relief is due.
disciplining of C.A. (See -17). Mother directs our
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Id. at 14 (citing 23 Pa.C.S.A. §
6303)). Mother then cites to several cases supporting the proposition that
corporal punishment may be used by a parent to discipline his or her child.
(See id. at 15-16 (citing Chronister ex rel. Morrison v. Brenneman, 742
A.2d 190 (Pa. Super. 1999); B.J.K. v. Department of Public Welfare, 773
A.2d 1271 (Pa. Cmwlth. 2001); In re S.M., 614 A.2d 312 (Pa. Super.
1992); J.S. v. Com., Dept. of Public Welfare, 565 A.2d 862 (Pa. Cmwlth.
1989))).
In response, the trial court explains that the testimony presented at
safety at risk. (Trial Ct. Op., at 7; see id. at 8). The trial court emphasizes
the testimony of C.A. and Q.A. that Mother had attacked C.A. with a
[he] had not stopped the beating, it is likely that [C.A.] would have ended
See id. at 7).
d abuse as codified
at 23 Pa.C.S.A. § 6303 is not necessary to support an adjudication of
dependency. See In re R.R., 686 A.2d 1316, 1317 (Pa. Super. 1996)
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condoned abuse before a
conduct in the present matter went well beyond the acceptable limits of
corporal punishment. Q.A. testified that, during the incident with the
broomstick, M
intervene. (N.T. Hearing, 2/18/14, at 124). While Mother points out in her
brief that C.A. did not suffer any lasting injuries as a result of this incident,
(See
determination that such injuries may have been inflicted had Mother not
been stopped. (See N.T. Hearing, 2/18/14, at 124). Thus, we agree that
at risk. See 42 Pa.C.S.A. § 6302. Mother is not entitled to relief on her
second issue.
Mother argues next that the trial court abused its discretion by
provide adequate supervision for h -20). Mother
contends that the testimony of C.A. and Q.A. was inconsistent and
incredible, and that CYS failed to establish that C.A. was ever touched
inappropriately. (See id. at 19).4
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4
Mother lists the following inconsistencies in her brief:
(Footnote Continued Next Page)
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The trial court acknowledges that there we
that
and explains that ted a
Id. at 11-
12).
about the alleged abuse of C.A., but that Mother
Id. at 10 (citing N.T. Hearing, 2/18/14, at 123); see id. at 8, 12).
_______________________
(Footnote Continued)
First, [C.A.] said she was touched only once, then she told the
[trial c]ourt that it had actually happened twice. Then she
admitted that she had never seen the man again. [C.A.] told the
and she was actually being baby-sat by [Q.A.], who also knew
exactly what the man looked like and where to find him. [C.A.]
then further admitted that she had actually never seen her
mother bring this man into the home. In addition, [Q.A.]
testified that he tried to tell his mother about the abuse on [sic]
[C.A.], but she dismissed it and did not report it to the proper
authorities. However, when asked about her knowledge of the
incident, the intake caseworker testified that [Mother] adamantly
denied knowing that her daughter had ever been sexualized or
touched in any way, and denied knowing that anyone in her
home would have touched her daughter.
Id. at 20 (quoting N.T. Hearing,
2/18/13, at 63)).
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In its opinion, the court also expresses concern that C.A. was able to obtain
a lighter and start a fire in her home, and explains that this too is indicative
See id. at 12).
We again conclude that the trial court did not abuse its discretion. As
ccept the findings of
fact and credibility determinations of the trial court if they are supported by
the record. R.J.T., at 1190. Here, the trial court was free to weigh the
testimony presented at the dependency hearing, and to accept and reject
this testimony as it saw fit. ssue.5
adjudicating D.A. dependent based solely on its finding that C.A. was
dependent. (See
directs our attention to the
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5
Mother also suggests, as part of her second and third arguments, that this
Court should find certain portions of the dependency hearing testimony
credible, and reverse on that basis. Specifically, Mother observes that Q.A.
C.A. would have told him about any additional incidents if they had occurred.
citing N.T. Hearing, 2/18/13, at 125)). Mother also
points out that C.A. testified that she was being supervised by Q.A. at the
time the inappropriate touching occurred. (See id. at 20 (citing N.T.,
2/18/13, at 58)). Mother suggests that this and other testimony proves that
Mother was not responsible for the sexual abuse allegedly suffered by C.A.
(See id.). These arguments also are contrary to our standard of review,
and it is not our role as an appellate court to make credibility determinations
based on a cold record. See S.K.C. v. J.L.C., 94 A.3d 402, 414 (Pa. Super.
2014).
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(Id. (quoting In re G.T., 845 A.2d 870, 872 (Pa. Super. 2004)). The trial
court acknowledges this general rule, but explains that it concluded that
i.e. her inappropriate
discipline, her unwillingness to listen to the allegations of sexual abuse of
her daughter and foll
needs child, who is nonverbal, and therefore, unable to discuss whether any
(Id. at 12-13).
Once again, we discern no abuse of discretion. -settled that
c evidence
and such evidence is sufficient to meet the strict burden of proof necessary
In re E.B., 83 A.3d 426, 433 (Pa. Super.
2013) (citation and internal quotation marks omitted). Moreover, as
observed by the trial court,
[i]n determining whether siblings are also dependent, the focus
is not on whether the other siblings are actually at risk of abuse
themselves. Rather, the key question is whether the siblings fit
or control,
subsistence, education as required by law, or other care or
control necessary for his physical, mental or emotional health, or
(Trial Ct. Op., at 12 (quoting In re M.W., 842 A.2d 425, 429 (Pa. Super.
2004) (some quotation marks omitted)).
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In M.W., a panel of this Court held that five siblings of a child who had
been sexually abused at the hands of her father could be adjudicated
dependent, even though there was no evidence that the siblings were at risk
of being sexually abused themselves. See M.W., supra at 429-30.
Similarly, in G.T., supra, we held that a child could be adjudicated
sister, resulting in permanent brain damage. See G.T., supra at 871. We
M.W. allow us to
assume that any medical problem T.G. might have developed would have
been similarly ignored. Id. at 874. Most recently, in E.B., supra, a panel
of this Court affirmed an adjudication of dependency where the juvenile
due to her special medical needs. See E.B., supra at 433 (citation
omitted). We concluded that the court did not abuse its discretion, even
See id. at 433-34.
Given this case law, the trial court acted reasonably by adjudicating
D.A. dependent, based on its conclusion that D.A. fit the broader definition
of lacking proper parental care or control, and based on its fear that D.A.
would suffer abuse if he were returned to Mother. (See Trial Ct. Op., at 12-
13 (citation and quotation marks omitted)).
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affirm the orders adjudicating D.A. and C.A. dependent.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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