In the Int. of: D.W., Appeal of: D.W. ( 2021 )

J-A17026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: D.W., FATHER : No. 532 EDA 2021
Appeal from the Order Entered February 19, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000951-2015
IN THE INTEREST OF: A.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: D.W., FATHER : No. 533 EDA 2021
Appeal from the Order Entered February 19, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000952-2015
IN THE INTEREST OF: A.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
:
APPEAL OF: D.W., FATHER : No. 534 EDA 2021
Appeal from the Order Entered February 19, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000953-2015
J-A17026-21
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 6, 2021
Appellant, D.W. (“Father”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas, which adjudicated his minor
children, D.W., Aj.W., and Al.W. (“Children”),1 dependent. We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On June 1, 2020, the Department of Human Services
(“DHS”) received a [General Protective Services (“GPS”)]
report containing allegations of lack of supervision and
inadequate basic needs. The GPS [report] alleged that
Father had been dropping …[C]hildren off at maternal great
grandmother’s house without ensuring that a caretaker was
present. Additionally, the report alleged that [C]hildren
appeared “dirty, unkempt and [malodorous].” The GPS
report dated 6/1/20 was determined to be valid.
Subsequently, DHS investigated. Additionally, on
September 25, 2020, a subsequent GPS report was
received. As a result, this [c]ourt held an adjudicatory
hearing on December 18, 2020.
At the adjudicatory hearing, DHS investigative worker
Emma Olshin testified that she completed an investigation
of the family after receiving the 6/[1]/20 GPS report. Ms.
Olshin stated that throughout the course of her
investigation, Father was very uncooperative. Ms. Olshin
further testified that she determined there were additional
dependency issues regarding Father’s care of …[C]hildren
outside the scope of the GPS report. …[C]hildren had
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 In its opinion, the trial court explains: “As two of …[C]hildren have the same
initials, the [c]ourt will use the first two letters of those [C]hildren’s first
names for clarity.” (Trial Court Opinion, filed April 19, 2021, at n. 2). We will
do the same.
-2-
J-A17026-21
numerous unexcused absences from school while in Father’s
care. Significantly, …[C]hildren reported to Ms. Olshin that
they were fearful of Father. They reported that Father had
struck them with a closed fist and a belt. When Ms. Olshin
interviewed …[C]hildren, she witnessed numerous marks,
scabs and bruising on …[C]hildren, which they reported
were caused by Father. Additionally, …Children reported
they are left unsupervised while in Father’s care.
Joseph Connolly, a DHS investigative worker, also testified
at the adjudicatory hearing. He testified that DHS received
an additional GPS report on September 25, 2020, containing
allegations of inappropriate discipline, [C]hildren sexually
acting out and parental substance abuse as to Mother and
her paramour. The allegations of inappropriate discipline
and parental substance abuse were determined to be valid.
Mr. Connolly further testified that Aj.W. disclosed that
Mother had disciplined her by hitting her on the side of the
head and mouth with a belt.
The CUA social worker, Tanea Cotte, also testified at the
adjudicatory hearing. Ms. Cotte testified that Aj.W.
disclosed that Father had hit her and her siblings while
discipling them. Ms. Cotte further testified that …Children
have resided with their paternal aunt since June 15, 2020.
Regarding Mother, Ms. Cotte stated that Aj.W. reported that
Mother has fallen asleep while …[C]hildren were in her care.
She further stated that Aj.W., who was ten years old,
disclosed that she has been left to care for …[C]hildren while
Mother has fallen asleep.
Father’s counsel called Father as a witness. Due to the
nature of the allegation against Father, this [c]ourt
appointed Father Fifth Amendment counsel to advise Father
of his rights under the Fifth Amendment. As a result, this
[c]ourt bifurcated the adjudicatory hearing so Father’s Fifth
Amendment counsel could consult with Father and be
present for the next hearing.
This [c]ourt held the conclusion of the bifurcated hearing on
February 19, 2021. At the bifurcated hearing, Father did
not appear, and his counsel declined to call him as a witness.
Mother was called to testify at the hearing. Mother testified
that she has sufficient housing for all of …[C]hildren. Mother
-3-
J-A17026-21
also stated that she has been diagnosed with Sickle Cell
Disease. She further testified that she takes medication for
her condition, which has side effects including fatigue.
Mother denied the allegations of inappropriate discipline
against Aj.W. Mother acknowledged that her medication
can make her fatigued but stated that she has a support
network to assist her if she was unable to care for
…[C]hildren.
At the conclusion of the adjudicatory hearing, this [c]ourt
adjudicated …Children dependent based on both present
inability and truancy and granted full legal custody of
…Children to DHS. This [c]ourt further ordered …[C]hildren
to be referred to the Education Support Center and for
tutoring. This [c]ourt also ordered Father to be referred to
Behavioral Health Services (“BHS”), an anger management
program, and to the Achieving Reunification Center (“ARC”)
for parenting. Father was granted supervised visits with
…Children at the agency at …Children’s discretion.
(Trial Court Opinion at 2-4) (internal citations omitted). On March 17, 2021,
Father timely filed three notices of appeal, as well as concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925.2 On April 7, 2021,
this Court consolidated the appeals sua sponte.
Father raises the following issues for our review:
Whether the [t]rial [c]ourt erred in finding the evidence to
have been sufficient to sustain an [a]djudication of
[d]ependency (as to the purported allegations as well as to
truancy).
Whether the [t]rial [c]ourt erred in finding the evidence to
have been sufficient to remove Children (Above Captioned)
from [Father’s h]ome.
Whether the [t]rial [c]ourt erred in admitting into evidence
____________________________________________
2 Mother has not appealed from the trial court’s orders adjudicating Children
dependent and is not a party to this appeal.
-4-
J-A17026-21
Children’s “out of court statement” (that being Children’s
responses introduced by way of testimony from DHS
Investigator Emma Olshin.).
(Father’s Brief at 5).
In his first two issues combined, Father argues there was insufficient
evidence to support the trial court’s decision to adjudicate Children dependent
and remove them from Father’s home. Father asserts that Children’s marks,
scabs, and bruises are not signs of serious physical injury that would indicate
child abuse. Additionally, Father avers the record does not indicate that
Children’s absences from school were unexcused. While Father concedes that
Children’s excessive absences “may be construed as somewhat suspicious,”
he insists that an excessive number of excused absences is not clear and
convincing evidence of truancy. (Id. at 12). Father concludes the evidence
presented does not support a dependency adjudication and, without an
adjudication of dependency, the legal basis for removing Children from
Father’s home is also eliminated. We disagree.
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.
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)).
-5-
J-A17026-21
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). See also In re L.Z., 631
Pa. 343, 360, 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”).
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 his [or her] 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[.]
* * *
-6-
J-A17026-21
(5) while subject to compulsory school attendance is
habitually and without justification truant from school[.]
* * *
42 Pa.C.S.A. § 6302(1), (5). Under Pennsylvania law, a child is of compulsory
school age from ages six to eighteen. 24 P.S. § 13-1326. A child is truant
when he or she incurs three or more unexcused absences during a school
year. Id.
The [petitioner] bears the burden of proving by clear and
convincing evidence that a child’s absence from school is
“without justification.” To meet this burden, the [petitioner]
may offer testimony and school attendance records to
establish that no excuse was received by the school for an
absence, or that a proffered excuse is facially invalid or
insufficient.
In re C.M.T., 861 A.2d 348, 354 (Pa.Super. 2004).
A court may adjudicate a child as dependent if the child meets the
statutory definition of a dependent child by clear and convincing evidence. In
re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006). Additionally, “[a] finding of
dependency can be made based on prognostic evidence and such evidence is
sufficient to meet the strict burden of proof necessary to declare a child
dependent.” In re R.W.J., 826 A.2d 10, 14 (Pa.Super. 2003). “The court
must make a comprehensive inquiry into whether proper parental care is
immediately available or what type of care [the parent] could provide in the
future.” Id.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
-7-
J-A17026-21
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.
In re E.B., supra at 1112.
Upon a finding of dependency, the court must focus on the child’s best
interests and order a disposition best suited to the child’s safety and well-
being. In re S.B., 943 A.2d 973 (Pa.Super. 2008), appeal denied, 598 Pa.
782, 959 A.2d 320 (2008); In re L.C., II, 900 A.2d 378, 381 (Pa.Super.
2006). The court may not separate the child from the parent unless it finds
that the separation is clearly necessary. In re G.T., 845 A.2d 870 (Pa.Super.
2004). Such necessity is implicated where the child’s welfare, safety, or
health demands he or she be taken from his or her parent’s custody. Id.; In
re R.W.J., supra.
Instantly, in addressing Father’s first two issues, the trial court
reasoned:
Here, DHS met its burden by demonstrating that …Children
are dependent based upon present inability. The June 1,
2020 GPS report alleging lack of supervision and inadequate
basic needs was determined to be valid as to Father. Ms.
Olshin credibly testified that Father dropped …[C]hildren off
at their maternal great-grandmother’s home without
ensuring that she was present at the home to care for them.
Additionally, …[C]hildren appeared dirty, unkempt and
malodorous at the time they were in Father’s care. Ms.
Olshin also testified that …Children disclosed that Father hit
them with both his fists and a belt, which was supported by
the bruising and scarring Ms. Olshin witnesse[d] on
…Children during her investigation. Moreover, the
September 25, 2020 GPS report alleging substance abuse
and inappropriate discipline was determined to be valid as
-8-
J-A17026-21
to Mother. Mr. Connolly testified that Aj.W. disclosed that
Mother struck her on the head and mouth with a belt to
discipline her. Additionally, Aj.W. has disclosed that she has
been left to care for …[C]hildren while Mother has fallen
asleep. Accordingly, [the trial court] found sufficient
evidence to adjudicate …Children dependent pursuant to 42
Pa.C.S.A. § 6302(1).
* * *
[Additionally, i]n adjudicating …Children dependent, this
[c]ourt determined that …Children were truant from school.
Ms. Olshin testified regarding …Children’s absences from
school while in Father’s care. Ms. Olshin stated that Al.W.
was absent 25 days in the 2019-2020 school year, Aj.W.
was absent 21 days and D.W. was absent 11 days. Notably,
Ms. Olshin stated that she was testifying based upon
…Children’s school records. Because …Children had missed
more than three days of school and were of compulsory
school age, …[C]hildren met the statutory definition of
truant children. Additionally, DHS provided evidence that
…Children were truant without justification as Ms. Olshin
testified from …Children’s school records as provided by
their schools. Accordingly, [the trial court] adjudicated
…Children dependent pursuant to 42 Pa.C.S.A. § 6302(5).
* * *
Here, this [c]ourt properly adjudicated …Children
[dependent] based upon present inability and truancy.
Subsequently, this [c]ourt determined that it would be in
…Children’s best interest to remain with their kinship care
provider instead of returning to Father’s care. The
testimony offered at the bifurcated adjudicatory hearing
clearly supports this [c]ourt’s dispositional order. The valid
GPS report dated 6/1/20 demonstrated that Father failed to
both properly supervise …Children and ensure their basic
hygienic needs were met daily. Significantly, Ms. Olshin
credibly testified regarding Father’s use of inappropriate
discipline against …Children, which was further supported
based upon the bruises and scarring she witnessed on
…Children and Aj.W.’s disclosure. Additionally, testimony
was offered that …Children had a significant number of
unexcused absences while in Father’s care. Based upon the
-9-
J-A17026-21
testimony offered, this [c]ourt determined that Father was
unable and unwilling to meet …Children’s basic health,
safety and educational needs; therefore, it was in their best
interest to be removed from Father’s care.
Additionally, this [c]ourt determined that DHS and CUA had
made reasonable efforts to prevent …Children from being
removed from Father’s care. Ms. Olshin testified that Father
was uncooperative during her investigation after receiving
the 6/1/20 GPS report. A safety plan was implemented for
…Children after Ms. Olshin reported several safety concerns
with allowing Children to return to Father’s care.
Additionally, Ms. Olshin testified that …Children disclosed
that they are fearful of returning to Father’s care. Based
upon the testimony regarding the current safety concerns
and the necessity of the implementation of a safety plan for
…Children, this [c]ourt determined that it is in …Children’s
best interest to be removed from Father’s care.
(Trial Court Opinion at 6-9) (internal footnote and citations omitted). We
agree with the trial court’s analysis. Here, DHS presented sufficient evidence
of Children’s excessive absences from school, Children’s lack of adult
supervision while in Father’s care, and Father’s inability to provide for the
basic hygienic needs of Children. Thus, we find no abuse of discretion in the
trial court’s decision to adjudicate Children dependent and remove Children
from Father’s care. See In re A.B., supra.In his third issue, Father argues that portions of Ms. Olshin’s testimony
constituted hearsay, where her testimony included statements from Children,
but Children had not been called to testify at the hearing. Father concedes
that, pursuant to the statutory exception at 42 Pa.C.S.A. § 5986, “otherwise
inadmissible” out-of-court statements made by a child are nevertheless
admissible in dependency proceedings. (Father’s Brief at 13). Father avers,
- 10 -
J-A17026-21
however, that this hearsay exception applies only to “particular matters (such
as sex acts), and is subject to qualification (the need for a prior in camera
hearing).” (Id.) Father concludes that Children’s statements should not have
been admitted into evidence and, as a result, this Court should vacate the
adjudication of dependency and return Children to Father’s care. We disagree.
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
to address any issue on review, we shall consider the issue waived.
- 11 -
J-A17026-21
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
relevant citations to the record). See also Lackner v. Glosser, 892 A.2d 21,
29 (Pa.Super. 2006) (stating: “Appellate arguments which fail to adhere to
[the rules of appellate procedure] may be considered waived, and arguments
which are not appropriately developed are waived”); Jones v. Jones, 878
A.2d 86, 90 (Pa.Super. 2005) (emphasizing that “a failure to argue and to cite
any authority supporting any argument constitutes a waiver of issues on
appeal”).
Instantly, Father objects to the admission of Ms. Olshin’s testimony
concerning certain statements Children made to Ms. Olshin. In his appellate
brief, however, Father fails to specify which statements he takes issue with
and fails to provide citation to any such statements in the record. See Hardy,
supra; Gould, supra. Furthermore, aside from some general statements of
law, Father’s entire argument on the issue consists of a mere three sentences,
and Father fails to apply any of the law he cites to the facts of his case. See
Jones, supra. Thus, Father’s failure to adequately develop his argument on
appeal hampers our ability to review this issue and renders the issue waived
on appeal. See Gould, supra. Accordingly, we affirm.
Orders affirmed.
- 12 -
J-A17026-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
- 13 -