In the Int. of: M.A., Appeal of: T.A.

J-S23031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INTEREST OF: M.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.A., MOTHER : No. 506 EDA 2023
Appeal from the Order Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000868-2022
IN THE INTEREST OF: R.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.A., MOTHER : No. 507 EDA 2023
Appeal from the Order Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000869-2022
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 29, 2023
Appellant, T.A. (“Mother”), appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed the dependency
petitions filed by the Philadelphia County Department of Human Services
(“DHS”) and transferred legal and physical custody of her minor children, R.A.
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(daughter) and M.A. (son) (collectively, “Children”), to I.W. (“Father”). We
affirm.
The relevant facts and procedural history of this case are as follows.
Mother and Father are the natural parents of R.A., who was born in January
2012, and M.A., who was born in June 2013. Shortly after M.A.’s birth, Mother
and Father’s relationship deteriorated. While Father moved to Ohio, Children
remained in Pennsylvania with Mother.
On September 1, 2022, DHS received a General Protective Service
(“GPS”) report alleging that Mother had been hospitalized after suffering a
bone infection. (See Dependency Petition for M.A., filed 10/3/22, at ¶b).
After Mother was discharged from the hospital, she “had physical limitations
that affected her ability to care for” Children. (Id.) The report also alleged
that Mother might have been abusing prescription pain medication, and she
had not enrolled Children in school for the 2022-2023 academic year.
On September 2, 2022, DHS employees went to Mother’s residence for
further investigation. Upon arrival, DHS employees observed Mother “to be
confused and disoriented[.]” (Id. at ¶c). Although Children appeared to be
safe, the home was cluttered with “multiple cigarette butts strewn on the
floor” and “cigarette burns on [Mother’s] sheets[.]” (Id.) Mother kept open
pill bottles within Children’s reach. Mother also confirmed that she had yet to
enroll Children in school, and Children “had not attended school since the
family moved to Philadelphia [from Johnstown] in December 2021.” (Id.)
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While the DHS employees spoke with Mother, her “behavior became
increasingly erratic, and she became verbally abusive toward DHS.” (Id.)
DHS subsequently contacted D.L. and T.L. (“Maternal Grandparents”),
who agreed to care for Children while Mother “addressed the condition of her
home and sought appropriate services for herself.” (Id. at ¶d). Mother’s in-
home services commenced on September 7, 2022. On September 9, 2022,
during a “Crisis Rapid Response Family Meeting,” DHS determined that Mother
had untreated mental health issues. (Id. at ¶g). DHS also confirmed that
Mother was abusing her prescription medications. Considering Mother’s
condition, DHS contacted Father on September 14, 2022. At that time, Father
stated “that he shared custody of the children with [Mother]; that he was in
agreement with [Children] residing with [Maternal Grandparents] through a
Safety Plan; and that he wanted to seek full custody of the children.” (Id. at
¶i).
On October 3, 2022, DHS filed separate dependency petitions for
Children. The court conducted an adjudicatory hearing on February 1, 2023.
At the hearing, the court received testimony from the DHS social worker, the
Community Umbrella Agency (“CUA”) case manager, Father, and Mother.
Additionally, the guardian ad litem entered Father’s “secure criminal court
summary” into evidence. (N.T. Hearing, 2/1/23, at 144). At the conclusion
of the hearing, the court found that DHS presented clear and convincing
evidence to warrant an adjudication as to Mother. (See id. at 151). The court
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also found that Father “is ready, willing, and able to care for these children.”
(Id. at 152). Thus, the court entered an order dismissing the dependency
petition and transferring legal and physical custody of Children to Father. On
February 27, 2023, Mother timely filed separate notices of appeal and concise
statements of errors. This Court consolidated the matters sua sponte on
March 22, 2023.
Mother now raises two issues for our review:
Whether the trial court committed reversible error when the
trial court did not adjudicate [Children] dependent and
commit them to [DHS], where an adjudication of
dependency and [commitment] to DHS was supported by
clear and convincing evidence under the Pennsylvania
Juvenile Act, 42 Pa.C.S. §§ 6301-6365.
Whether the trial court committed reversible error when the
trial court placed [Children] in the legal and physical custody
of [Father], where such determination was not supported by
clear and convincing evidence under the Pennsylvania
Juvenile Act, 42 Pa.C.S. §§ 6301-6365.
(Mother’s Brief at 8).
Mother’s issues are related, and we address them together. Initially,
Mother concedes that she “is not appealing the adjudication of dependency as
to her,” and her arguments are “limited to the transfer of the physical and
legal custody of” Children to Father. (Id. at 12). Regarding custody, Mother
insists that the record did not support the court’s decision to transfer custody
of Children to Father. Mother emphasizes a DHS policy requiring that each
child should have their own bedroom. Nevertheless, Father testified that he
lives in a two-bedroom apartment. Although Father testified that he is willing
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to sleep on a sofa for Children to have separate bedrooms, Mother maintains
that there is no way to ensure this will happen where the record does not
mention whether “the State of Ohio and the appropriate county agency was
going to pick this case up for supervision[.]” (Id. at 14). Mother also argues
that: 1) DHS did not obtain Father’s criminal history from Ohio; 2) Father
failed to provide specific testimony about his plans for childcare; 3) Father’s
relationship with Children was fractured due to Father’s move to Ohio; and 4)
Children did not want to live with Father. Under these circumstances, Mother
asserts that the transfer of custody to Father is not in Children’s best interests.
Mother concludes that this Court must reverse the order that transferred
custody. 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 [trial] 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)).
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.
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In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000).
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[.]
42 Pa.C.S.A. § 6302.
A court may adjudicate a child as dependent if the child meets the
statutory definition of a dependent child by clear and convincing evidence.
See In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006).
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
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. 42 Pa.C.S. §
6351(a).
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.
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* * *
The plain language of the statutory definition of a dependent
child compels the conclusion that a child is not dependent if
the child has a parent who is willing and able to provide
proper care to the child. When a court adjudges a child
dependent, that court then possesses the authority to place
the child in the custody of a relative or a public or private
agency. Where a non-custodial parent is available and
willing to provide care to the child, such power in the hands
of the court is an unwarranted intrusion into the family.
Only where a child is truly lacking a parent, guardian or legal
custodian who can provide adequate care should we allow
our courts to exercise such authority.
In re M.L., 562 Pa. 646, 649-50, 757 A.2d 849, 850-51 (2000). “In other
words, if a dependency petition is filed against the custodial parent and there
is sufficient evidence for the court to adjudge the child dependent but for the
intervention of the non-custodial parent who is willing and capable of caring
for the child, the trial court may properly grant custody to the non-custodial
parent in a dependency proceeding.” Interest of J.B., 247 A.3d 447, 453
(Pa.Super. 2021).
Instantly, Father testified regarding his current circumstances, as well
as his history with Mother and Children. Father explained that he and Mother
separated in 2013 or 2014, after the birth of M.A. In 2016, Father sought
custody of Children. The court initially provided Father with supervised visits.1
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1 Father mentioned that the court had ordered supervised visitation because
“the allegations came up about me.” (See N.T. Hearing at 87). These
allegations were addressed in greater detail by Calli Hagan, the DHS social
(Footnote Continued Next Page)
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When Children failed to appear for the visits, the court issued a bench warrant
for Mother. Although the warrant remained active, Father moved to
Cincinnati, Ohio and kept tabs on Children by calling other family members.
At the time of the hearing, DHS had confirmed that Father lived in an
apartment, which was across the street from the school that Children would
attend. Authorities in Ohio conducted a home assessment and “cleared it” for
Children to occupy. (N.T. Hearing at 20). Although Father did not have the
necessary furniture to furnish Children’s rooms, he “talked about buying beds
and dressers for them.” (Id. at 21). Father also testified that: 1) he did not
have a criminal record for child abuse; 2) he held a steady job; 3) he was
willing to take custody of Children; 4) Children could be added to his health
insurance plan; and 5) he would take Children to all medical and dental
appointments.
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worker. Specifically, DHS received a report on October 25, 2022, which
alleged that Father had raped R.A. in 2017. (See id. at 17). Although DHS
investigated in 2017, Ms. Hagan investigated the matter again in 2022.
During the 2022 investigation, R.A. was interviewed by the Philadelphia
Children’s Alliance (“PCA”). In this interview, R.A. “did disclose that it
happened, but she would not give any other details regarding the incident.”
(Id.) Ms. Hagan also reviewed R.A.’s 2017 PCA interview, where R.A. “also
said that it did happen, but she didn’t give any further information.” (Id.)
DHS interviewed Father, who denied the allegations. Father believed that
Mother told R.A. to make the allegations in 2017, because Mother and Father
“had a falling out and they didn’t have a very good relationship at the time.”
(Id. at 19). Ultimately, DHS found the report to be unfounded. Ms. Hagan
expressed concerns that Mother had coached R.A., because R.A. “said that
mom told her what to say.” (Id. at 22-23).
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On cross-examination, Father stated that DHS had recently facilitated
visitation for him with Children. Prior to DHS’s involvement, however, Father
had not seen Children for approximately six years. (See id. at 95). Father
indicated that Maternal Grandparents permitted him to have telephone contact
with Children “about once or twice a week[.]” (Id. at 94). In speaking with
Maternal Grandparents, Father developed the following plan for reuniting with
Children:
So the kids are in school for the first time in their life, and
they seem to be doing better with the help of ya’ll, [the CUA
case manager and DHS Social Worker]. They helped my
children get in school for the first time along with [Maternal
Grandparents]. I consented for [Maternal Grandparents] to
get [Children’s] birth certificates and their socials so they
can enroll them in school.
So as a father I love my children. I don’t want to disrupt
my children’s life anymore that it already is. So my plan
with [Maternal Grandparents] is that the kids stay there
until the end of the school year. You know what I’m saying.
* * *
But if there’s any complications because of them staying
out, I’m willing to take my children right now.
(Id. at 96).
At the conclusion of testimony, the court received argument from
counsel. The child advocate expressed Children’s preferences. Regarding
M.A., the child advocate asserted that “[h]e has told me actually on two
separate occasions today that he would be willing to go to Ohio.” (Id. at 142).
M.A. “also vacillated and said … ‘I want to be with my dad and my mom.’”
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(Id.) Regarding R.A., she initially told the child advocate “she was all right to
go to Ohio.” (Id. at 143). R.A. “quickly recanted,” and she indicated a desire
to stay in Philadelphia. (Id.) R.A. remained “willing to visit” Father in Ohio.
(Id.)
Thereafter, the guardian ad litem entered a summary of Father’s
Pennsylvania criminal history into evidence. The summary revealed a juvenile
adjudication for a drug charge, a 2013 conviction for driving under the
influence of alcohol, and several arrests that did not result in prosecution.
(See id. at 144-45). Based upon these arrests, the last of which occurred in
2015, the guardian ad litem argued that Father lacked the ability to parent
Children:
But what disturbs me and what indicated to me that [F]ather
doesn’t have the present ability to care for these children is
his arrest record. We deal with behaviors in this court. We
have a different standard of proof. We don’t have to prove
these allegations beyond a reasonable doubt. Past
behaviors are an indication. They are indicia of a present
ability to care for children.
Now I wouldn’t be making this argument except for the
sheer number of arrest[s] that the father has had and for
the different types of crimes he’s had.
(Id. at 145).
The court analyzed the record and concluded that Father was available
and willing to care for Children:
Notwithstanding the court’s determination of present
inability on the part of Mother, the trial court heard credible
clear and convincing evidence to establish that Father was
ready, willing and able to care for the children. Father is
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employed and supplied the CUA case manager with his proof
of income. Father’s home was assessed and deemed
appropriate for the children, and Father is willing to accept
voluntary services for the children if needed. Father lives
directly across the street from the children’s potential school
and has maintained consistent contact with the CUA case
manager. Father did not present an inability to care for the
children and is willing, ready, and able to maintain proper
care and control over the children. To the contrary, Father
demonstrated the ability to immediately care for the
children and the absence of any dependency issues in his
home.
[The guardian ad litem] moved into evidence, Father’s
secure criminal court summary. [The guardian ad litem]
argued Father’s arrests from 2002, 2009, 2010, and 2015
displayed a pattern for arrests and criminal activity.
However, each of these arrests were withdrawn or
dismissed. The court found this argument to be
unpersuasive and egregious. Father’s arrest record is not
evidence of an inability to care for these children. Father’s
only conviction of driving under the influence was nearly ten
years ago. The legal system is built on the foundation that
people are innocent until proven guilty.
(Trial Court Opinion, filed 3/29/23, at 9) (internal citations omitted). The
court also found “sufficient evidence supported the finding that the children
should be placed with Father and that it would be contrary to their welfare
and best interests to commit them to DHS at this time.” (Id. at 10).
Here, the court credited the testimony demonstrating that Father is
willing and capable of caring for Children. Our review leads us to conclude
that competent evidence supported the court’s findings. See In re A.H.,
supra. Therefore, we cannot say that the court abused its discretion by
placing Children in Father’s custody after it found sufficient evidence to
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adjudge Children dependent as to Mother. See Interest of J.B., supra; In
re A.B., supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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