In the Int. of: C.R., Appeal of: G.R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: G.R., FATHER :
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: No. 1715 EDA 2022
Appeal from the Order Entered June 7, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001311-2012
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 08, 2022
G.R. (“Father”) appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, adjudicating his child, C.R. (born 8/2007)
dependent. After our review, we affirm.
The trial court set forth the history of this case as follows:
The Philadelphia Department of Human Services (DHS) became
aware of this family on January 29, 2019, when it received a
General Protective Services (GPS) report alleging that C.R. was in
special education and was attending school without wearing socks
or underwear. The report also alleged C.R. attended school with
feces on him and his clothing, and that Mother did not provide the
school with a change of clothes for him. This report was
determined to be valid. When DHS interviewed C.R., they
observed that he was malodorous and there were feces in his
pants.
When DHS interviewed Mother in her home on January 30, 2019,
she denied the allegations in the GPS report. DHS assessed
Mother’s home and found that the home was not appropriate for
C.R. There was no working electricity, heat, or hot water in the
home. In February 2019, DHS implemented In-Home Services in
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maternal grandmother’s home and the family began residing
there.
On July 29, 2021, DHS received a GPS report alleging that C.R.
was physically abused while in the care of his Father in Oklahoma.
The report stated that there was a shared custody agreement
between Mother and Father in which C.R. resided with Father
during the school year and with Mother during the summer. The
GPS report further alleged that C.R. returned to Mother’s home in
May 2021 and Mother observed that C.R. had bruising on his back
and a bite mark on his arm. The report alleged that C.R. disclosed
the Father’s paramour physically abused him, threatened him with
a power drill, and put the drill on his hand. Additionally, the GPS
report alleged that C.R. needed behavioral health services to
address the abuse. This report was referred to the Oklahoma
Department of Human Services.
DHS also spoke with C.R. on July 29, 2021. C.R. stated that his
stepmother pointed a drill at him and threatened to drill him on
his eye. C.R. stated that his stepmother then put the drill on his
palm and drilled his skin, which resulted in a cut on his hand.
On September 9, 2021, DHS conducted an unannounced visit at
Mother’s home. Mother refused to allow DHS to assess the inside
of the home. When the police arrived and allowed DHS access to
Mother’s home, DHS observed that the home did not have a
refrigerator or any hot water, the stove was inoperable, and the
sleeping conditions were not appropriate. On September 9, 2021,
Mother and C.R. began residing in maternal grandmother’s home
pursuant to a Safety Plan which stated that the children would not
return to Mother’s home.
Trial Court Opinion, 7/20/22, at 1-3 (citations to record omitted).
On October 29, 2021, DHS filed a petition to adjudicate C.R. dependent.
The court appointed Jeffrey Bruch, Esquire, as counsel and guardian ad litem
(“GAL”) for C.R.1 An adjudicatory hearing was held on June 7, 2022, at which
time DHS Supervisor, Michelle Ludwig, testified. Ludwig testified that her unit
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1 Attorney Bruch has submitted a letter to this Court in which he joins in the
brief filed by DHS and states that he believes the trial court’s decision to be in
his client’s best interest.
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investigated a report involving C.R. and that several home visits were
conducted. N.T. Adjudicatory Hearing, 6/7/22, at 11. Ludwig testified that
during a home visit on September 9, 2021, the DHS investigator observed
that Mother’s home was in a “deplorable” condition. Id. at 12. Specifically,
the kitchen was completely inoperable, there was no functioning water and
very limited food in the home, there was trash around the home, and the
walkway was unsafe. Id. Ludwig stated that when DHS received the report,
Mother stated that C.R. was not enrolled in school because he had recently
returned from Father’s home in Oklahoma. Id. at 14
Ludwig further testified that, during her investigation, she learned that
Father had primary physical custody, but C.R. did not wish to return to
Father’s care. Id. at 14-15. Ludwig testified that on November 12, 2021, she
received a Child Protective Services (“CPS”) report alleging that C.R. suffered
physical abuse by Father. Id. at 18. Ludwig stated that this report was
investigated, but determined to be unfounded. Id.
On cross-examination by Mother’s counsel, Ludwig testified C.R. was
diagnosed with failure to thrive and that he was malnourished when he
returned to Mother’s care after being with Father. Id. at 19.
Community Umbrella Agency (“CUA”) Case Manager, Elgren Green, also
testified at the adjudicatory hearing. Green testified that C.R. and Mother
continue to reside with maternal grandmother and that C.R. is currently
enrolled as a ninth grader in West Philadelphia High School. Id. at 27, 30.
Green testified that C.R. is currently safe and receiving the services that he
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needs. Id. at 31, 34. Green stated that Father wanted C.R. to return to live
with him in Oklahoma, but that C.R. wished to remain in Philadelphia with his
Mother and siblings. Id. at 33.
On cross-examination by the Child Advocate, Green testified that C.R.
told him that Father’s paramour had used a drill on his hand while he was in
Father’s care and that he had also been bitten by a dog while staying with
Father. Id. at 34-35. On cross-examination by Mother’s counsel, Green
stated that C.R. is “doing really well” in school and has A’s and B’s. Id. at 36.
Green opined that it would be in C.R.’s best interest to remain in Mother’s care
in maternal grandmother’s home. Id. at 36.
Mother testified that, when C.R. returned to her home in Philadelphia on
May 26, 2021, after residing in Oklahoma with Father, she noticed bruising
and dog bites on C.R.’s arm. Id. at 41-42. Mother stated that C.R. informed
her that he sustained the bruises after Father’s paramour “beat him with a
pot” and that he had been bitten by Father’s paramour’s dog. Id. Mother
testified that, as a result of the allegations of abuse, she refused to send C.R.
back to Oklahoma. Id. at 42. Mother testified that C.R. had gained 15 pounds
while in her care. Id. at 44.
Father testified remotely from Oklahoma. Father stated that, when C.R.
resided with him in Oklahoma, he was attending school and receiving medical
treatment. Id. at 52. Father denied the allegations of failure to thrive and
testified that C.R. had been up to date on his shots and was seeing a specialist
in Oklahoma. Id. at 53. Father testified that he and his paramour were
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divorced and denied the allegations that C.R. had been physically abused or
bitten by a dog. Id. at 53-54. Father stated that when he questioned C.R.
about the allegations, C.R. told him “nothing happened.” Id. at 54-55. Father
testified that he was unaware of the allegation that his paramour pointed a
power drill at C.R.’s hand. Id. at 55.
On June 7, 2022, the court issued an order adjudicating C.R. dependent
due to lack of parental care or supervision pursuant to 42 Pa.C.S.A. § 6302.
Father filed a timely notice of appeal, followed by a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On appeal,
Father asserts that DHS failed to sustain its burden of proving by clear and
convincing evidence that C.R. is dependent. See Brief of Appellant, at 8.
[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
[trial] court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013). “The trial court is free to
believe all, part, or none of the evidence presented, and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.” In
re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citation omitted). An
appellate court may reverse for an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” In re Adoption of L.A.K., 265 A.3d 580, 587 (Pa. 2021).
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Dependency proceedings are governed by the Juvenile Act (“Act”), 42
Pa.C.S.A. §§ 6301–6375, which defines “dependent child,” in relevant part,
as follows:
“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.A. § 6302. In determining whether a parent is providing a minor
with proper care and control, the parent’s acts and omissions should weigh
equally. In re R.W.J., 826 A.2d 10, 14 (Pa. Super. 2003). In order to
adjudicate a child dependent, the court must determine that the above
definition has been met by clear and convincing evidence. A.B., 63 A.3d at
349.
Father argues that there was no testimony that C.R. was being
neglected while in Father’s care. In support of his claim, Father cites his own
testimony that C.R. was attending school and receiving medical care while
living with him, as well as his denial of physical abuse or failure to thrive while
in his care. Father also notes that DHS investigator Michelle Ludwig testified
that she was unable to determine in whose care C.R. was when failure to thrive
became an issue. Father argues that “the court’s decision to find [C.R.]
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dependent was not consonant with the fundamental purpose of the Act, which
is to preserve the unity of the family.” Brief of Appellant, at 15. He is entitled
to no relief.
The court set forth its rationale for adjudicating C.R. dependent as
follows:
In adjudicating C.R. dependent, this Court determined that DHS
had met its burden by demonstrating that C.R. was a dependent
child and was without proper parental care and control. Father’s
counsel argues that Father is ready, willing, and able to parent
C.R. However, at the June 7, 2022, adjudicatory hearing, this
court found that it would not be in C.R.’s best interest to be
reunified with Father at that time. This Court heard credible
testimony from DHS Supervisor, Ms. Ludwig, and CUA Case
Manager, Mr. Green, that there were concerns for C.R.’s safety
and welfare if he should be returned to Father’s care. C.R.
disclosed to DHS and CUA that while he was residing with Father
in Oklahoma, Father’s paramour put a power drill on his hand and
threatened to use the drill against him. C.R., who was fourteen
years old at the time of the adjudicatory hearing, reported to the
DHS Investigator and Mr. Green that he did not wish to return to
Father’s care. C.R. stated that he wished to remain in Philadelphia
with Mother and his siblings. C.R. did not disclose [to DHS] why
he did not wish to return to Father’s care[.] However, C.R.
informed Mr. Green that he did not wish to reside with Father just
after he disclosed the power drill incident to him.
There are currently outstanding dependency concerns for Father
which remain barriers to reunification. Mr. Green testified that
CUA requested a courtesy home visit from Oklahoma Children and
Youth Services (CYS) to determine if Father’s home was
appropriate for C.R. However, Oklahoma CYS did not perform a
courtesy visit and did not provide a reason why. At the time of
the adjudicatory hearing, CUA was not able to conduct a home
assessment of Father’s home in Oklahoma and it was unclear
whether Father’s home was appropriate for C.R. Additionally, the
record reflects that C.R. was diagnosed with failure to thrive and
was malnourished when he returned to Mother’s home in May
2021 after residing with Father during the school year.
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After hearing the evidence presented, this court found that DHS
met its burden by clear and convincing evidence that C.R. was a
dependent child pursuant to 42 Pa. C.S.A. § 6302(1) and was
without proper parental care or control. Such proper parental care
was not immediately available due to the Child’s malnourishment
and failure to thrive in Father’s care. Additionally, the bruises
Mother observed on C.R. when he returned to Philadelphia[,] as
well as the incident he disclosed regarding Father’s paramour
threatening him with a power drill[,] are concerning to this court.
Trial Court Opinion, 7/20/22, at 8-9 (unnecessary capitalization omitted).
The record in this matter supports the trial court’s factual findings, and
we can discern no error of law in the court’s conclusion that C.R. is a
dependent child and that Father lacks the present ability to provide proper
parental care to C.R. The court did not find Father’s self-serving testimony to
be credible and, instead, credited Mother’s testimony regarding the injuries to
C.R. that she observed upon C.R.’s return to Philadelphia from Oklahoma, as
well as the testimony of the DHS and CUA caseworkers regarding C.R.’s
reports of abuse in Father’s home and his desire not to return to Father’s
care.2 See In re M.G., supra (trial court free to make all credibility
determinations). In light of that testimony, the court was within its discretion
to decline to return C.R. to Father’s care, particularly where DHS has been
unable to determine whether Father’s Oklahoma home is appropriate and safe.
Order affirmed.
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2 We note that the trial court also interviewed C.R., off the record, during the
adjudicatory hearing. See N.T. Adjudicatory Hearing, 6/7/22, at 39 (court
clearing courtroom and interviewing C.R. off the record). His testimony was
sealed and not made a part of the certified record on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2022
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