In The Int. of: B.D., Appeal of: M.K.

J. S70001/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: M.K., MOTHER :
: No. 4063 EDA 2017
Appeal from the Order, November 28, 2017,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-002529-2017,
CP-51-DP-0002811-2017
IN THE INTEREST OF: D.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: M.K., MOTHER :
: No. 4064 EDA 2017
Appeal from the Order, November 28, 2017,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-002529-2017,
CP-51-DP-0002812-2017
IN THE INTEREST OF: A.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: M.K., MOTHER :
: No. 4065 EDA 2017
Appeal from the Order, November 28, 2017,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. 51-FN-002529-2017,
CP-51-DP-0002813-2017
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 05, 2018
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M.K. (“Mother”) appeals from the November 28, 2017 orders entered
in the Court of Common Pleas of Philadelphia County adjudicating B.D.,
female child born in June 2002; D.D., female child born in July 2003; and
A.S, female child born in October 2005 (collectively, “Children”), dependent
as defined in Section 6302 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375.
Pursuant to Pa.R.A.P. 513, we have consolidated these appeals sua sponte.
After careful review, we affirm.
The trial court set forth the following:
On September 18, 2017, Department of Human
Services (“DHS”) learned that B.D.’s sibling had run
away from the home of her Mother.
On September 18, 2017, DHS visited the home of
Mother and met with Mother, [C.A., Mother’s
paramour (“Paramour”)], and [the Children]. The
Paramour was not the father of [the Children.] The
Paramour appeared aggressive in his behavior.
Mother stated she allowed her Paramour to discipline
her [Children] because she was unable to control
[the Children’s] behavior. Paramour stated [the
Children] were his children and he was able to
discipline [the Children] in a manner he saw fit.
Paramour answered DHS’ questions which were
directed to Mother.
On September 18, 2017, DHS visited the home of
Maternal Uncle and met with Maternal Uncle and
D.D. DHS reported D.D. stated that she ran away
from Mother’s home after Paramour chased her down
the street and grabbed her by her bookbag. D.D.
stated Paramour used inappropriate language and
verbal discipline with her and siblings, B.D. and A.S.;
that Mother allowed Paramour to establish all
household rules; that Mother and Paramour used
marijuana in their bedroom.
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On September 19, 2017, DHS interviewed A.S. at
[school]. A.S. stated that she did not feel
comfortable in her home with Paramour present and
that she did not want to reside with Mother.
On September 19, 2017, DHS implemented a Safety
Plan for [the Children] stating that B.D. and her
sibling would reside at the home of Paternal
Grandmother. Paternal Grandmother stated she
would ensure [the Children’s] safety and that their
needs were met.
On September 24, 2017, B.D. and Mother entered
DHS and stated that Paternal Grandmother had
forced B.D. to attend a church service that morning;
B.D. left the church and went to the home of her
Maternal uncle, [M.K.] Paternal Grandmother
arrived at the home of Maternal Uncle with
Philadelphia Police and B.D. was returned to Paternal
Grandmother’s home. B.D. stated that she was
being verbally abused by Paternal Grandmother.
B.D. further stated Paternal Grandmother was
forcing her to make false statement [sic] about
Mother and she did not feel safe in Paternal
Grandmother’s home.
On September 25, 2017, B.D. began residing with
her Maternal Uncle with a Safety Plan.
On October 2, 2017, DHS learned that Maternal
Uncle was not an appropriate caregiver for B.D. B.D.
began residing in the home of Paternal Uncle of A.S.
[B.D.] had a history of running away from home.
Mother had a diagnosed [sic] of depression, anxiety
and borderline personality disorder.
Mother had a history of heroin use.
B.D. and D.D.’s father was not involved in their care.
A.S.’s Father is deceased.
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Trial court opinion, 5/10/18 at 1-2.
The record reflects that on October 20, 2017, DHS filed dependency
petitions for each of the Children based on lack of proper care or control.
The record further reflects that Mother retained Debra Moshinki, Esq., as
private counsel. The trial court scheduled the adjudicatory hearing for
October 31, 2017.
The record further reflects that, except for D.D., the parties, counsel,
and other interested persons, including A.S.’s paternal grandparents and
paternal aunt and uncle, were present for the scheduled hearing on
October 31, 2017. (Notes of testimony, 10/31/17 at 5-7.) At the beginning
of the hearing, B.D. and A.S. complied with the trial court’s request to step
outside of the courtroom. (Id. at 7-8) The trial court then stated that it had
been made aware of allegations that certain adult individuals had been
“coaching” the Children as to their testimony at the adjudication hearing.
(Id. at 8-10.) The trial court further stated that it had read the dependency
petitions and was concerned about what the Children had “already been
exposed to.” (Id. at 9.) The trial court then entered a protective order
against Paramour directing him to refrain from directly and indirectly
contacting the Children and to refrain from intimidating the Children for a
period of one year. (Id. at 11; see also dependency court protective order,
10/31/17.) In so doing, the following colloquy took place:
[THE COURT:] Now let me just say this while we’re
on the record about [Paramour], I’m going to issue a
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stay-away order, because that was the request of
counsel and I don’t know the dynamics between
[Mother] and [Paramour]. Just something for your
consideration. I hope you choose your girls over
[Paramour]. And I can tell you, and I know it’s just
allegations and we’re going to have a full hearing,
but I’m telling you, you need to choose your girls
over a relationship.
[MOTHER]: I already said I was.
THE COURT: Okay. And how you handle this will
have ongoing repercussions in terms of how they
relate to relationships going forward, okay? Just for
your consideration. Just for your consideration. I
can’t legislate what you do in terms of your
relationships and all this stuff, but I submit to you, if
we have a full hearing and we get testimony about
negative interactions with [Paramour] to the point
that a Child Advocate or anybody saying, can you
issue a stay-away order now, the [sic] it’s of grave
concern, okay? All right.
Notes of testimony, 10/31/17 at 11-12.
The trial court then entered a continuance order and deferred the
dependency adjudication hearing until November 28, 2017. (Id. at 31;
see also continuance order of court, 10/31/18.)
The dependency adjudication hearing took place on November 28,
2017. The record reflects that Jeffrey C. Bruch, Esq., appeared as “on-call
counsel” for Mother. (Notes of testimony, 11/28/17 at 1-2.) At the
beginning of the hearing, Attorney Bruch informed the trial court that
Attorney Moshinski, Mother’s private counsel, had informed Attorney Bruch
that she “was going to withdraw from the case.” (Id. at 2.) At that point,
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the trial court stated it would “vacate Miss Moshinski” and appoint
Attorney Bruch.1 (Id.)
The trial court summarized the adjudication hearing testimony as
follows:
[T]he social worker testified Mother did not have
appropriate protective capacities in regard to her
children. Mother refused to provide safety for her
children by failing to remove her aggressive
Paramour from her home. Mother was diagnosed
with mental health issues of depression, borderline
personality disorder and anxiety. The social worker
testified Mother had not provided any documentation
that she was engaged in drug, alcohol or mental
health treatment. The social worker testified there
were concerns of Mother’s marijuana use and history
of heroin use.
The social worker testified [that the Children] stated
they witnessed a significant amount of physical
violence between Mother and Paramour.
Furthermore, the social worker testified the
[C]hildren stated one incident was so grave they
became involved. The social worker recommended
Mother receive domestic violence counseling.
Trial court opinion, 5/10/18 at 3 (citations to notes of testimony omitted).
We note that the record reflects that Attorney Bruch cross-examined
the social worker. The record further reflects that the trial court asked
Attorney Bruch whether he “would like to call a witness” and he declined.
(Notes of testimony, 11/28/17 at 48-49.)
1The trial court entered an order that “vacated” Mother’s “private attorney”
and appointed Attorney Bruch. (Appointment of counsel order of court,
11/28/17.)
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At the conclusion of the November 28, 2017 hearing, the trial court
entered orders adjudicating the Children dependent. On the same day,
Mother filed notices of appeal, together with statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).2 In Mother’s
Rule 1925(a)(2)(i) statements, Mother raised the following issues:
1. The judge ruled in error that [DHS] meets its
burden of prove [sic] in finding of dependency
under 42 Pa.C.S. sec. 6302.
2. The judge ruled in error by committing the
[C]hildren and not returning the [C]hildren to
Mother.
Mother’s “concise statement of matters complained of on appeal,” 11/28/17
(emphasis omitted). On May 10, 2018, the trial court filed its
Rule 1925(a)(2)(ii) opinion.
On May 14, 2018, Attorney Bruch filed with this court an application to
withdraw as Mother’s counsel. On May 15, 2018, Aaron A. Mixon, Esq., filed
with this court a “praecipe for entry of appearance” on Mother’s behalf. Also
on May 15, 2018, Attorney Mixon filed a “motion to amend 1925(b)
statement.” On May 22, 2018, this court granted Attorney Mixon’s motion to
amend and directed that Mother file her supplemental statement with this
court, and serve that supplemental statement on the trial court, on or before
2 We note that the record sometimes refers to the Pa.R.A.P. 1925(a)(2)(i)
statement as the Rule 1925(b) statement. Because these consolidated
appeals are children’s fast track appeals, the statement of errors complained
of on appeal is a Rule 1925(a)(2)(i) statement. We further note that the
trial court’s opinion in a fast track appeal is a Rule 1925(a)(2)(ii) opinion.
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May 31, 2018. Attorney Mixon failed to timely comply with this court’s
May 22, 2018 order and filed Mother’s supplemental statement with this
court on July 3, 2018, which was 33 days late. In that untimely filed
statement, Mother attempts to raise the following issue:
3. Trial court abused its discretion when it
adjudicated the [C]hildren dependent because
it violated mothers [sic] constitutional right to
fundamental due process. mother [sic] should
have been granted a continuance when the
court appointed her an attorney at the bar of
the court who had no information regarding
the circumstances and allegations involved in
mother’s case. Moher [sic] was not afforded
an opportunity to be heard or present evidence
in which denied [sic] her an opportunity to
present her case in chief.
Mother’s “AMENDED/SUPPLEMENTAL 1925B,” 7/3/18.
On July 17, 2018, this court granted Attorney Bruch’s application to
withdraw as Mother’s counsel.
The standard of review in dependency cases requires
an appellate court to accept 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. We review for abuse of
discretion[.]
In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (quotation marks and citation
omitted).
Section 6302 of the Juvenile Act defines a “dependent child” as:
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[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[.]
42 Pa.C.S.A. § 6302.
This court clarified the definition of “dependent child,” as:
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.
In re G., T., 845 A.2d 870, 872 (Pa.Super. 2004) (internal quotation marks
and citations omitted). See also In re J.C., 5 A.3d 284, 289 (Pa.Super.
2010). “The 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 at 872 (citation
omitted).
This court has explained that:
a court is empowered by 42 Pa.C.S.[A] § 6341(a)
and (c) to make a finding that a child is dependent if
the child meets the statutory definition by clear and
convincing evidence. If the court finds that the child
is dependent, then the court may make an
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appropriate disposition of the child to protect the
child’s physical, mental and moral welfare, including
allowing the child to remain with the parents subject
to supervision, transferring temporary legal custody
to a relative or public agency, or transferring custody
to the juvenile court of another state. 42 Pa.C.S.[A.]
§ 6351(a).
In re D.A., 801 A.2d 614, 617 (Pa.Super. 2002) (en banc).
Although Mother identifies three issues in her statement of questions
presented,3 a reading of Mother’s brief reveals that her complaint is that the
3 Mother sets forth the following issues in her statement of questions
presented:
[1.] Whether the trial court abused its discretion in
finding the Law Department met its burden of
proof in finding dependency under 42 C.S.
§ 6302 [sic]?
[2.] Whether the trial court abused its discretion by
committing the [C]hildren and not returning
the [C]hildren to Mother?
[3.] Whether the trial court abused its discretion
when it adjudicated the [C]hildren dependent
because it violated her right to fundamental
due process. [sic] Mother should have been
granted a continuance when she was appointed
an attorney at the bar of the court who had no
information regarding the circumstances and
allegations involved in [M]other’s case. Mother
was not afforded an opportunity to be heard or
present evidence, which denied her an
opportunity to present her case in
chief.[Footnote 1]
[Footnote 1] Within counsel was
not the attorney during the
adjudicatory hearing. Court
appointed counsel raised the first
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trial court violated her due process rights (1) when it appointed
Attorney Bruch to represent her at the adjudicatory hearing because he was
not prepared to defend her; and (2) when it denied her an opportunity to be
heard and present evidence to rebut DHS’s case. (Mother’s brief at 6-10.)
Because Mother’s complaints to this court only concern the third issue that
she attempted to raise in her untimely supplemental Rule 1925(a)(2)(i)
statement in violation of this court’s May 22, 2018 order, Mother has waived
all issues related to her due process claim on appeal. See U.S. Bank., N.A.
v. Hua, 2018 Pa.Super.LEXIS 829 (Pa.Super. July 20, 2018) (reiterating
that a failure to comply with a court order directing an appellant to file a
concise statement results in waiver of issues on appeal).
Finally, although Mother fails to challenge the trial court’s factual
findings and legal conclusions with respect to its dependency determinations,
we nevertheless note that the trial court:
found the testimony of the social worker extremely
credible and extremely professional in light of
two issues on appeal. Within
counsel filed a supplemental
1925(b) statement raising
[M]other’s third issue on appeal.
Mother’s brief at 5.
We admonish Attorney Mixon for impliedly misrepresenting the record
in footnote 1. As discussed above, this court granted Attorney Mixon’s
motion to file a supplemental Rule 1925(a)(2)(i) statement. Attorney Mixon,
however, failed to timely comply. As written, footnote 1 implies that counsel
preserved the third issue for appeal. Attorney Mixon is mistaken.
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offensive accusations from Mother. The Court was
reflective of prior Court Orders, October 31, 2017
where Mother stated she would remove Paramour
from her home and failed to do so to date. The
Court reasoned Mother lacked the protective capacity
to keep [the Children] safe from the actions and
behavior of Paramour[.] [T]he Court referenced the
history of the report in the case dating back to 2015
reporting aggressive behavior of Paramour. The
Court found convincing social worker’s testimony of
Mother’s abdicating her parental responsibility to an
aggressive Paramour who engaged in egregious
behavior such as yearlong punishments, diagnosis of
mood disorders and personality issues, unmedicated
impulsivity behaviors and lack of compliance with
mental [health] treatment convincing and
compelling[.] Furthermore the Court reasoned
Mother lacked insight and judgement to place B.D. in
a home subjected to violence and drug usage. . . .
The Trial Court found by clear and convincing
evidence that it was contrary to the health, safety,
and welfare of [the Children] to remain in the
custody of Mother and transferred custody to [DHS].
Trial court opinion, 5/10/18 at 3 (citations to notes of testimony omitted).
Our review of the record supports the trial court’s conclusion that DHS
proved by clear and convincing evidence that the Children are without
proper care or control and that Mother’s lack of understanding of the
situation that resulted in their placement means that such care and control
are not immediately available. Therefore, clear and convincing evidence
supported the trial court’s dependency adjudications.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/18
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