In the Interest of: S.H., a minor, Appeal of: S.H.

J-A12029-17 J-A12030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.H. :
:
:
:
:
: No. 1612 WDA 2016
Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): CP-02-DP-541-2016
IN THE INTEREST OF: S.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.M. :
:
:
:
:
: No. 1622 WDA 2016
Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): CP-02-DP-541-2016
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED AUGUST 10, 2017
Appellant, S.H. (“Child”) through appellate counsel, KidsVoice (“GAL”),
appeals from the order entered on September 23, 2016, adjudicating Child
dependent pursuant to 42 Pa.C.S.A. § 6302. Appellant, J.M. (“Father”) also
appeals from the September 23, 2016, order. This Court consolidates both
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appeals sua sponte, as Appellants appeal the same order and present the
same issues. See Pa.R.A.P. 513. We affirm.1
The relevant facts are as follows:
On June 15[], 2016, Harrison Township police reported to CYF
that the mother of four year old [S.H.] and her boyfriend had
come to the police station stating that he was missing. The
mother further said that the boy had been attacked and
possessed by supernatural beings at the mother’s home and at
the maternal grandfather’s home and that the child had turned
into a zombie. The police described their behavior as bizarre
and suspected that they were under the influence of drugs or
alcohol. During the police investigation the mother advised the
police that she and her boyfriend decided that they did not want
the child anymore and drove the child to the Mt. Oliver section of
Pittsburgh and left the child with a male stranger. The Harrison
Township police contacted Mt. Oliver to investigate. The Mt.
Oliver police found the child at the godmother’s home. The Mt.
Oliver Police immediately observed that the child had a burn on
the back of the right leg and reported this to CYF.
The child was then immediately transported by EMS to Children’s
Hospital of Pittsburgh for examination by Dr. Adelaide Eichman.
Dr. Eichman diagnosed that the child had suffered an untreated
burn to the back of the right thigh along with multiple and
significant bruising to his ears, forehead, cheeks, left neck and
back arms. The bruising to the left side of his face was
consistent with a slap mark and the blood work indicated that
the child had suffered muscle damage. The child had multiple
bruises in abnormal locations that are normally protected areas
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1
While this appeal was pending, the GAL provided to this Court a
permanency review order, dated April 18, 2017, which terminated court
supervision and S.H. remained with Father, rendering this appeal moot.
Nevertheless, this Court may decide questions that have been rendered
moot when a party may be detrimentally impacted by the trial court’s
decision. See In re M.B., 101 A.3d 124, 127 (Pa. Super. 2014) (stating
“because there can be collateral consequences to a finding of dependency, it
is excepted from the mootness doctrine”).
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and not typically injured in childhood play. Dr. Eichman found
that [S.H.] had been the victim of physical child abuse and that
the injuries were inflicted. Dr. Eichman further concluded that
this child had suffered substantial pain at the time that he was
physically abused.
Dr. Eichman promptly filed a child line report and the child
immediately had a forensic interview at Children’s Hospital Child
Advocacy Center by Jamie Mesar, M.S.W., and observed by
Allegheny County Police Detectives Kuma and Holzwarth, CYF
case worker Justina McMasters and two other [C]hild Advocacy
Center staff members. Ms. Mesar’s report further found that the
child was developmentally delayed and his speech was often
difficult to understand. The child’s forensic interview indicated
that the mother’s boyfriend Tyrone had burned and hit him. The
child was immediately taken into emergency protective custody
via court order out of CYF’s and the court’s concerns for the
child’s physical and psychological safety and trauma and was
placed with a Wesley Spectrum foster family. Allegheny County
Detectives interviewed the mother and her boyfriend Tyrone on
the same day and they admitted that Tyrone had hit the child at
the request of the mother. The Allegheny County Police filed
child abuse charges against the mother and her boyfriend which
are pending.
On 6/16/2016, CYF requested a shelter hearing and invoked
court jurisdiction alleging again that the child had been badly
abused and the biological father was unknown. At the hearing
the next day before a hearing officer and not this court, neither
the mother nor biological father appeared, but members of the
mother’s family did attend. The mother apparently was notified
but did not attend and the biological father continued to be
unknown to CYF. CYF interviewed the maternal family members
attending for possible kinship placement but they were screened
out for recent CYF and criminal histories. The mother’s family
members who had helped the mother care for the child for the
last four years did not know the biological father’s name and did
not have any contact information and his identity remained
unknown.
The biological father left a voicemail with the caseworker over
the weekend after the hearing and then four days later, CYF
spoke with the biological father for the first time on June 21,
2016. In legal contradiction with itself and only hours after the
first meeting with the biological father, CYF filed a petition
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alleging the dependency of [S.H.] while also alleging that the
biological father was a ready willing and able parent and without
investigations into the relationship between the child and
biological father or any other of this child’s prospective future
caretakers.
Trial Court Opinion, 12/22/16, at 2-4 (citations omitted).
In June 2016, CYF filed a petition for dependency. In September
2016, an adjudicatory hearing was held, following which, the court
adjudicated S.H. a dependent child but remained in Father’s physical
custody. These timely appeals followed, along with concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
Appellants raise the following issues on appeal, restated for clarity:
A. Did the trial court err or abuse its discretion in adjudicating
S.H. a dependent child under subsections (1) and (3) of the
Juvenile Act?
B. Did the trial court err or abuse its discretion in appointing
second Guardian ad litem to represent S.H.?
GAL’s Brief at 4; Father’s Brief at 7. 2
Appellants challenge the trial court’s dependency adjudication. 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
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2
In his brief Father challenges both the adjudication of dependency and the
appointment of a second GAL as a single question raising both issues.
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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 M.B., 101 A3d 124, 126-127 (Pa. Super. 2014).
In relevant part, Section 6302 of the Juvenile Act defines a “dependent
child” as a child who:
(1) is without proper parental care or control,
subsistence, education as required by law, or 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;
* * *
(3) has been abandoned by his parents, guardian, or
legal custodian[.]
42 Pa.C.S.A. § 6302.
“A court cannot adjudge a child to be dependent when his non-
custodial parent is ready, willing, and able to provide the child with proper
parental care and control, especially when the lower court finds that the
child was abused while under the custodial parent’s care and control.” In
Interest of Justin S., 543 A.2d 1192, 1199 (Pa. Super. 1988); see also In
re M.L., 757 A.2d 849 (Pa. 2000) (holding that a child whose non-custodial
parent is ready, willing, and able to provided adequate care to the child
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cannot be found dependent). However, a non-custodial parent’s willingness
is irrelevant if they have never parented the child. In re. B.B., 745 A.2d
620 (Pa. Super. 1999) (“[T]he fact that [father] is completely unknown to
the children prevents his designation as a proper parental caregiver to
them.”).
Appellants contend that Father was ready, willing, and able; therefore,
S.H. was not a dependent child pursuant to 42 Pa.C.S.A. § 6302(1) and (3). 3
Appellants assert that after an investigation, CYF determined that there were
no concerns with Father, that he resides with his paramour and his two other
children, is employed at the US Postal Service, and maintains a residence.
GAL’s Brief at 23.
However, Appellants failed to address Father’s lack of involvement in
his child’s life, and CYF did not interview Father’s paramour or the other
children. See Trial Court Opinion at 5. While Father may be ready and
willing to parent S.H. he is unable due to his virtual nonexistence in his
child’s life. As noted by the trial court, “[S.H.] did not realize that the
biological father [was] actually his father and did not know the names of his
two half-siblings who live in the biological father’s home.” Id. at 10.
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3
CYF did not plead subsection (3) in its dependency petition; however,
“absent prejudice to any party, the court may allow a dependency petition to
be amended if the petition alleges a different set of events or allegations…”
Pa.R.J.C.P. No. 1334(A)(2).
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Appellants assert that the court’s reliance on In re B.B. is misplaced,
as the non-custodial parent in that case had only seen his children once
since birth, whereas Father in the instant case has seen S.H. as recently as
Easter 2016, and S.H. refers to him as “Dad.” GAL’s brief at 25. We do not
find the facts distinguishable. Father is virtually a stranger to S.H., having
only seen the child ten times in his entire life. The trial court reasoned as
follows:
The biological father finally testified and admitted that he had
only visited or spent time with the child approximately ten times
since the child’s birth four years ago on 12/[]/2011. In addition,
more than half of these visits were for an hour or less, and
occurred prior to the child’s second birthday. For perspective,
and giving him the benefit of doubt on his statement of ten
parent-child interactions consisting of eight, one-hour visits and
two overnights in 1,635 days of the child’s life, that is less than
.0006 or less than [1%] of the child’s life! The biological father
admitted to CYF that he had no contact with the child for more
than two and a half years prior to February 2016, at which time
he had his first of two ever overnight visits with the child. Prior
to that visit, the mother had to show the child photos of the
biological father to identify him as his father since the child had
no recollection or memory of his biological father at that time.
The mother testified that prior to the February 2016 visit; the
child had identified one of mother’s prior paramours as being his
dad. The biological father also significantly admitted that he had
not recently seen the child for at least ninety days. The
biological father claimed that his lack of co-parenting of the child
was solely due to the mother hiding her whereabouts from him.
The court did not find the biological father’s testimony credible
on this issue given the ample evidence that he had access to the
child support petitions and support orders that provided the
parties addresses.
Trial Court Opinion at 13.
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Furthermore, the court did not find credible Father’s explanation for his
lack of visitation. We accept the trial court’s credibility determinations and
do not discern an abuse of discretion.
In their second issue, Appellants contend that the trial court abused its
discretion in appointing a second guardian ad litem. However, GAL has filed
a motion to dismiss, seeking to withdraw this claim on mootness grounds, as
the case is now closed and the appointment of both GAL’s has ended. “An
issue can become moot during the pendency of an appeal due to an
intervening change in the facts of the case or due to an intervening change
in the applicable law.” In re Cain, 590 A.2d 291, 292 (Pa. 1991).
Here, the posture of this case has changed. The Allegheny County
Court of Common Pleas issued an order closing S.H.’s dependency case, thus
confirming custody with Father. See Order for Termination of Court
Supervision, 4/18/17. We conclude that this issue is moot and, therefore,
grant GAL’s motion to dismiss. As such, we will not address the second
issue raised in Appellants’ briefs.
Motion to dismiss granted. Order affirmed.
Judge Olson joins this memorandum.
Judge Solano joins this memorandum and files a concurring statement
in which Judge Olson joins.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2017
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