In the Interest of: K.B. Appeal of: C.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.B., : IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: C.B., FATHER
: No. 205 EDA 2019
Appeal from the Order Entered December 13, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002515-2018
IN THE INTEREST OF: Z.B., : IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: C.B., FATHER
: No. 206 EDA 2019
Appeal from the Order Entered December 13, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002516-2018
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 30, 2019
C.B. ("Father") appeals from the orders entered on December 13, 2018
that adjudicated his children, K.B., born in November of 2013, and Z.B., born
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in December of 2014, (collectively "the Children"), dependent.' After careful
review, we affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On November 13, 2018, the Philadelphia Department of
Human Services ("DHS") received a General Protective Services
("GPS") report which alleged that [Mother and Father] used PCP[2]
and K2.[3] The GPS report alleged that [Mother and Father] were
under the influence of controlled substances while in the presence
of the Children and that [Mother and Father] left the Children
unattended daily while they purchased controlled substances.
Father was convicted for drug related offenses [on]
September 10, 2007, January 19, 2010 and December 20, 2010.
The GPS report also alleged that Mother had a history of mental
illness and that she was institutionalized because she believed that
someone was trying to kill her. On November 14, 2018, DHS
interviewed Father who admitted to DHS personnel that he used
PCP. An Order for Protective Custody was obtained by DHS on
December 13, 201[8]. On December 13, 2018, the [trial court]
held a hearing to determine if [the Children] should be adjudicated
dependent. [Mother and Father] were present at the hearing and
represented by counsel. After the hearing, the [trial court] found
clear and convincing evidence to adjudicate the Children
dependent.
1-The Children's mother, J.H. ("Mother"), filed appeals from the trial court's
orders at Superior Court docket numbers 198 EDA 2019 and 199 EDA 2019.
Mother's appeals are addressed in a separate memorandum.
2 Phencyclidine ("PCP") is a schedule II controlled substance. 35 P.S. § 780-
104(2)(v)(1); 28 Pa.Code § 25.72(c)(5)(i).
3 K2 is asynthetic cannabinoid. Synthetic cannabinoids are schedule I
controlled substances. 35 P.S. § 780-104(1)(vii).
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Trial Court Opinion, 3/22/19, at unnumbered 2-3. Father timely appealed the
trial court's orders on January 11, 2019, in separate notices of appeal. Both
the trial court and Father complied with Pa.R.A.P. 1925.
On appeal, Father presents the following issue for this Court's
consideration:
1. Did the trial court commit an error of law and/or abuse of
discretion in finding that the Department of Human Services had
proven that the [C]hildren were dependent by clear and
convincing evidence?
Father's Brief at 4.
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 court's inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Regarding the definition of an
abuse of discretion, this Court has stated the following:
An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law,
or the judgment exercised is shown by the record to be either
manifestly unreasonable or the product of partiality, prejudice,
bias or ill will, discretion has been abused.
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (citation and
quotation marks omitted).
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Additionally, "[t]he burden of proof in a dependency proceeding is on
the petitioner to demonstrate by clear and convincing evidence that a child
meets that statutory definition of dependency." In re G.,T., 845 A.2d 870,
872 (Pa. Super. 2004). Section 6302 of the Juvenile Act, 42 Pa.C.S. §§ 6301-
6375, defines a "dependent child" as 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. § 6302. "The question of whether a child is lacking proper parental
care or control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental care and
control, and if so, whether such care and control are immediately available."
G.T., 845 A.2d at 872 (citation omitted).
The trial court concluded that the Children were dependent due to
Father's drug use. Specifically, the trial court found as follows:
During the hearing on December 13, 2018, the DHS
Representative testified that Father confirmed Mother had
received inpatient mental health treatment and that Mother tested
positive on her admittance for PCP. (N.T. December 13, 2018 Page
7). DHS also introduced evidence that Mother and Father had
tested positive for PCP on November 19, 2018. (N.T. December
13, 2018 Page 7). The trial court accorded great weight to the
testimony of the DHS Representative and the evidence that
Mother was mentally unstable and Mother and Father were users
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of PCP. This evidence provided clear and convincing evidence that
Mother and Father lacked the ability to provide safety and
adequate parental control for their Children and that separation of
the Parents and Children was necessary for the welfare of the
Children.
Trial Court Opinion, 3/22/19, at unnumbered 4-5.
At the December 13, 2018 hearing, the record reflects that Father tested
positive for PCP. N.T., 12/13/18, at 7. Additionally, the record reveals that
Father requires assistance caring for the Children because both of the Children
have special needs. Applications for Emergency Protective Custody, 11/6/18.4
We conclude that the record contains clear and convincing evidence that
the Children lack proper parental care and control due to Father's use of PCP,
and Father was unable to provide such care. After review, we discern no
abuse of discretion in the trial court's conclusion that Father's use of PCP
placed the health, safety, and welfare of the Children at risk pursuant to 42
Pa.C.S. § 6302. Accordingly, we affirm the orders adjudicating the Children
dependent.
Orders affirmed.
4 The November 6, 2018 Applications for Emergency Protective Custody were
filed concerning both Mother and Father and in regard to each of the Children.
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Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 7/30/19
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