In the Interest of: M.F. and M.F., Minor Children

J-S12045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.F. and M.F., IN THE SUPERIOR COURT OF
MINOR CHILDREN PENNSYLVANIA
APPEAL OF: B.D., MOTHER No. 2805 EDA 2014
Appeal from the Order entered August 26, 2014,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-DP-0001913-2014, CP-51-DP-0001914-2014,
FID: 51-FN-001837-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 10, 2015
B.D. (“Mother”) appeals from the order entered on August 26, 2014, in
the Philadelphia County Court of Common Pleas, which found her female
child, M.F., born in July of 2008, (“Child #1”), and her female child, M.F.,
born in January of 2010, (“Child #2”), collectively (“Children”), not
dependent, dismissed the petition filed by the Department of Human
Services of Philadelphia County (“DHS”), and confirmed custody of Children
with Father. Mother contends the trial court should have determined
Children were dependent. We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
Both Child #1 and Child #2 were in the home and
custody of their Mother. On July 15, 2014, Mother took
Child #1, a 4-year-old girl, to her primary care physician
(“PCP”). The PCP recommended that Mother take Child #1
* Former Justice specially assigned to the Superior Court.
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to The Children’s Hospital of Philadelphia (“CHOP”) for
examination and testing. Child #1 tested positive for
chlamydia. On July 18, 2014, DHS received a Child
Protective Services (“CPS”) report alleging that on July 10,
2014, Mother’s paramour [ ] observed Child #1 standing
on a bed with her dress pulled up while Mother’s
paramour’s 11-year-old son sexually assaulted Child #1.
DHS also learned that Mother’s paramour’s 6-year[-]old
son had previously sexually assaulted Child #1. On July
19, 2014, a Safety Plan was implemented[,] which took
Child #1 and Child #2 out of Mother’s home and placed
them with Father. On July 21, 2014, DHS visited
[Children] in Father’s home. Child #2 stated to DHS that
she had observed Mother’s paramour’s son touching Child
#1’s buttocks, and Child #1 also stated to DHS that
Mother’s paramour’s son touched her buttocks. All parties
tested negative for chlamydia. DHS conducted a forensic
interview to try to determine how Child #1 contracted
chlamydia, but due to her age and developmental status,
Child #1 was unable to verbalize what had happened to
her; therefore, DHS did not know how Child #1 contracted
chlamydia.
On July 25, 2014, Mother denied having a history of
chlamydia and substance abuse. DHS later learned that
Mother’s medical records indicate that Mother does have a
history of chlamydia and Mother has had past positive test
results for chlamydia. DHS learned that Mother had tested
positive for chlamydia when Child #1 was three months
old. DHS requested Mother’s complete medical records,
but Mother failed to provide them. DHS was unable to
determine if Mother had chlamydia during her pregnancy
with Child #1. Even if she had chlamydia during her
pregnancy, there is a possibility that it would not have
passed to Child #1 because Child #1 was born via
cesarean. On August 26, 2014, an adjudication hearing
was held. Reasonable efforts by DHS were found, and
[Children] were found not dependent. The petition filed by
DHS was dismissed, and custody of [children] was
confirmed with Father pursuant to Pa.R.J.C.P. §
1409(a)(2).
Trial Ct. Op., 11/4/14, at 1-2 (citations to record omitted).
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On September 25, 2014, Mother filed a timely notice of appeal.
Mother also filed a contemporaneous Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed a responsive opinion.
Mother raises the follow issue for our review: “Whether [F]ather, and
not [M]other, should have been given custody of the minor children, M.F. [ ]
and M.F.[?]” Mother’s Brief at 4.
Mother argues that the evidence was sufficient to support an
adjudication of dependency. Mother raises concerns about Father being
abusive and selling marijuana. Mother’s Brief at 8 (unpaginated). She
contends an adjudication of dependency “would also ensure that [Mother]
participates in programs designed to address her history of substance abuse
and mental health issues, before she is reunited with [Children].” Id. She
concludes that the trial court should have considered and determined the
Children to be dependent, requiring DHS to put supervision in place to
alleviate any safety concerns while Children are in Father’s custody. Id. at
9.
Our review is governed by the following principle:
[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) (citation omitted).
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Pennsylvania Rule of Juvenile Court Procedure 1409 provides:
A. Adjudicating the child dependent. Once the court
has made its findings under Rule 1408, the court shall
enter an order whether the child is dependent.
* * *
(2) No dependency. If the court finds the child not to be
dependent or the court finds a parent ready, willing, and
able to provide proper parental care or control, the court
shall:
(a) dismiss the petition;
(b) order the child to be discharged from custody and
any restrictions ordered in the proceedings; and
(c) enter an order identifying individual(s) who will have
the legal and physical custody until such order is
modified by further order of the court.
Pa.R.J.C.P. 1409(A)(2)(a)-(c).
Section 6302 of the Juvenile Act defines a dependent child, in part, as
a child who:
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 burden of proof in a dependency proceeding is on the petitioner
to demonstrate by clear and convincing evidence that a child meets that
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statutory definition of dependency.” In re M.T., 101 A.3d 1163, 1173 (Pa.
Super. 2010) (citation omitted). “The definition of a dependent child
contained in section 6302 clearly states that a child must lack a parent,
guardian or other legal custodian who can provide appropriate care to the
child. A child whose non-custodial parent is ready, willing and able
to provide such care does not meet this definition.” In re M.L., 757
A.2d 849, 851 (Pa. 2000) (emphases added).
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), we stated:
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.
Id. at 872 (internal quotations and citations omitted).
In the case sub judice, the trial court opined:
In the instant case, it was established by testimony
that Father is ready, willing, and able to provide
proper parental care and control of [C]hildren.
[C]hildren have been residing with Father since July 18,
2014, and there are no concerns with the girls continuing
to reside with Father. Father’s home is appropriate, safe,
and all family members residing in Father’s home have
been cleared. There are no safety and no dependency
concerns in regard to Father’s home. Since residing with
Father, [C]hildren have thrived. Father testified that he
understands all the services [C]hildren need and he will
ensure that [C]hildren continue to receive those services.
Father will also bring [C]hildren to have supervised
visitation with Mother.
Mother is an inappropriate resource for [C]hildren.
Mother is given supervised visitation because of the
concerns regarding who is around [C]hildren when Child
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#1 and Child #2 are with Mother. The trial court has great
reservations about Mother’s ability to protect the safety of
[C]hildren. Another concern is Mother’s ability to ensure
that [C]hildren’s health and welfare needs are met.
Children were diagnosed as “failure to thrive.”
Consequently, [C]hildren were supposed to be fed
PediaSure formula but there were instances when Mother
did not give the PediaSure formula to [C]hildren as she
had been instructed to do. The medical records from
CHOP indicate that Child #1 is developmentally delayed.
Mother told DHS that Child #1 suffered from cranial
stenosis as an infant and currently suffers from acid reflux,
muscle deformity, and vision problems. DHS social worker
testified that DHS had had concerns with Mother’s ability
to parent because Mother did not cooperate with DHS or
with Father.
Trial Ct. Op. at 3-4 (emphasis added and citations to record omitted).
The trial court authorized the transfer of custody to Father, a non-
custodial parent whom the trial court found was ready, willing, and able to
provide proper parental care and control. Id. at 4. Moreover, the trial court
found that Father is able to take the Children for all their services and
understands his obligations as a parent. Id. We find that the trial court
properly dismissed the dependency petition, and confirmed custody of
Children with Father. See 42 Pa.C.S. § 6302; Pa.R.J.C.P. 1409(a)(2); In re
M.L., 757 A.2d at 851. Accordingly, we discern no abuse of discretion. See
In re R.J.T., 9 A.3d at 1190.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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