J-S56031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.C.T.-S., A                       IN THE SUPERIOR COURT OF
MINOR                                                        PENNSYLVANIA




APPEAL OF: B.S., FATHER

                                                            No. 865 MDA 2015


                 Appeal from the Order Entered April 14, 2015
                 in the Court of Common Pleas of York County
               Juvenile Division at No.: CP-67-DP-0000104-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED OCTOBER 27, 2015

        B.S. (Father) appeals from the order of the Court of Common Pleas of

York County, filed April 14, 2015, that adjudicated his daughter, B.C.T.-S

(Child), born in March of 2010, dependent and committed her to the care

and custody of York County Children Youth and Families (YCCYF).                We

affirm.

        YCCYF filed its initial Alleged Dependent Child Petition on May 2, 2014,

based on a series of eight referrals in which S.T. (Mother) alleged that

Father had abused Child sexually.              Each referral was deemed unfounded.

The initial dependency hearing convened on May 19, 2014, but was

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56031-15


continued by agreement of the parties. The agreement was approved by the

trial court:

      The parties before the [c]ourt have reached an agreement under
      which this matter will be continued for 45 days. The dependency
      petition will not be withdrawn at this point but be held in limbo
      while the parents participate in [services].

(N.T. 5/19/14, at 23).

      The services referred to by the trial court included the parents signing

releases for appropriate evaluations, allowing announced and unannounced

visits and inspections by YCCYF; their cooperation in obtaining psychological

evaluations; their participation with the Justice Works in-home team; and

Child’s continuing participation in weekly therapy. (See id. at 24).

      By the time the hearing reconvened on August 11, 2014, YCCYF had

received a ninth referral alleging sexual abuse of Child by Father.       That

referral prompted YCCYF to file a Motion to Suspend Father’s Rights of

Custody and Visitation on July 16, 2014. The motion was to be heard at the

continued dependency hearing on August 11, 2014. (See N.T. 8/11/14, at

1-3). At that hearing, YCCYF requested, and the trial court granted, leave to

withdraw the dependency petition filed May 2, 2014. There was a lengthy

discourse at the August 11, 2014 proceeding about whether or not YCCYF

would be able to meet the clear and convincing evidentiary burden in order

to prove dependency because the ninth sexual abuse referral was also

deemed unfounded and there was a custody proceeding already on the

calendar for August 22, 2014. (See N.T. 8/11/15, at 2-6; 24-25; 29-31).

                                    -2-
J-S56031-15


Shortly after the dismissal of the original petition, YCCYF received a tenth

referral alleging sexual abuse of Child by Father.

       The history of the case and the totality of the circumstances led to

YCCYF’s filing an application for protective custody on August 28, 2014,

seeking removal of Child from the custody of both parents and her

placement in foster care. YCCYF filed a second petition for dependency and,

at the dependency hearing held on September 11, 2014, all parties agreed

that a comprehensive custody evaluation by JoAnn MacGregor, Ph.D., a

clinical psychologist licensed in the Commonwealth of Pennsylvania, would

assist the trial court in determining whether Child was dependent as defined

in the Juvenile Act, 42 Pa.C.S.A. § 6302. (See N.T. 9/11/14, at 23).

       Dr. MacGregor’s written report was shared with all parties in advance

of the April 14, 2015 dependency hearing and was entered in the record as

Joint Exhibit #2 by stipulation of the parties. Dr. MacGregor also testified by

phone at that hearing. In addition to Dr. MacGregor’s testimony, testimony

was received from mental health therapist and executive director of

EquiTeam Support Services, Ellie Williams; intake manager for YCCYF,

Rebecca Wilson; Father; and Father’s girlfriend, A.K.      Mother and Child’s

Guardian ad litem did not testify.1


____________________________________________


1
 Neither Mother nor the Guardian ad litem filed briefs in this matter, either,
but chose to join in the brief of Appellee YCCYF. See Pa.R.A.P. 2147.



                                           -3-
J-S56031-15


         The trial court entered its order adjudicating Child dependent and

committing her to YCCYF on April 14, 2015. Father filed his notice of appeal

and statement of errors complained of on appeal on May 13, 2015.              See

Pa.R.A.P. 1925(a)(2)(i).

         Father presents the following question for our review:

         Did the [trial court] err as a matter of law and abuse its
         discretion by granting the request of [YCCYF] for a finding of
         dependency with respect to Father, B.S. when [YCCYF] failed to
         prove dependency by clear and convincing evidence as there was
         insufficient evidence that the child was without proper parental
         care or control?

(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., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010) (citation omitted).

         To adjudicate a child dependent, a trial court must determine that the

child:

         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[.]


                                       -4-
J-S56031-15


42 Pa.C.S.A. § 6302.

        A dependency hearing is a two-stage process. The first stage requires

the trial court to hear evidence on the dependency petition and determine

whether the child is dependent pursuant to the standards set forth in section

6302.     See 42 Pa.C.S.A. § 6341(a).       If it finds “clear and convincing”

evidence that the child is dependent, the court may move to the second

stage, an adjudicatory hearing where it must make an appropriate

disposition based on an inquiry into the best interests of the child.        42

Pa.C.S.A. § 6341(c); In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007).

“Clear and convincing” evidence has been defined as testimony that is “so

clear, direct, weighty, and convincing as to enable the trier of facts to come

to a clear conviction, without hesitancy, of the truth of the precise facts in

issue.”   Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997) (citation

omitted).

              In reviewing an adjudication of dependency, we are guided
        by the manifest intent of the legislature in drafting the Juvenile
        Act, which was to preserve unity of the family whenever
        possible. 42 Pa.C.S.A. § 6301(b)(1). Consequently, a child will
        only be declared dependent when he is presently without proper
        parental care and when such care is not immediately available.
        A court may not find a child to be dependent absent clear and
        convincing evidence. 42 Pa.C.S.A. § 6341(c).

In Interest of R.T., 592 A.2d 55, 57 (Pa. Super. 1991) (case citation

omitted).

        This Court has defined “proper parental care” as “that care which (1) is

geared to the particularized needs of the child and (2) at a minimum, is

                                      -5-
J-S56031-15


likely to prevent serious injury to the child.” C.R.S., supra at 845. (citation

omitted).

      With regard to when a child should be removed from parental custody,

we have stated:

      The law is clear that a child should be removed from her parent’s
      custody and placed in the custody of a state agency only upon a
      showing that removal is clearly necessary for the child’s well-
      being. In addition, this [C]ourt had held that clear necessity for
      removal is not shown until the hearing court determines that
      alternative services that would enable the child to remain with
      her family are unfeasible.

In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980) (citations

omitted). In addition, we have stated, “[I]t is not for this [C]ourt, but for

the trial court as factfinder, to determine whether [a child’s] removal from

her family was clearly necessary.” In the Interest of S.S., 651 A.2d 174,

177 (Pa. Super. 1994).

      Preliminarily, we note that Father has waived his argument for his

failure to cite any legal authority to support his claim. Father does no more

than review the evidence and ask us to reach a different conclusion.       “The

failure to develop an adequate argument in an appellate brief may result in

waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v. Beshore,

916 A.2d 1128, 1140 (Pa. Super. 2007) (case citation omitted).

      Moreover, Father’s argument would not merit relief.       Father argues

that there is no basis for dependency in this matter because the allegations

of abuse were unfounded and he has met all the conditions set forth by Dr.



                                     -6-
J-S56031-15


MacGregor for Child’s return to his custody. We agree that the allegations of

abuse cannot form the basis of dependency in this case. Nevertheless,

Father does not persuade us that he has satisfied Dr. MacGregor’s concerns

regarding his regaining custody of Child.    At the close of the hearing, the

trial court found Child to be dependent and cited Dr. MacGregor’s expert

testimony and opinions as controlling in reaching its conclusion:

      Dr. MacGregor testified that in her opinion the biggest threat to
      [Child] is dysfunctional co-parenting of [M]other and [F]ather
      and the need for both of them to stabilize their parenting
      relationship with [Child] and with each other in front of [Child].

(N.T. 4/14/15, at 147).

      The trial court also found that Father had not, and would not,

participate in the therapy Dr. MacGregor recommended in her report. In its

opinion, the trial court stated:

            A Comprehensive Evaluation was conducted by Dr. JoAnne
      MacGregor and evidence of said Evaluation was presented at the
      Dependency Hearing. Dr. MacGregor concludes in the findings of
      her Evaluation that [Child] “loves both her mother and her
      father, and she is caught within the horrific situation of having
      the two people she loves most in this world engage in relentless
      immature, hostile, and maladaptive behaviors toward each other
      for as long as she has memories. [Child] is a resilient child and
      she has not yet developed any psychiatric disorders from having
      developed within the context of her parents’ inexcusable
      behaviors, however, as [Child] enters into school-age, her risks
      for developing disorders will increase substantially if her parents
      are unable to tolerate each other and function as co-parents to a
      minimally adequate level to prevent child-harming behaviors.
      (Report at p. 15). As a result, Dr. MacGregor recommended a
      family therapist to work with [Child], Mother, Father, and any
      other family members due to the significant level of dysfunction
      within the family. Dr. MacGregor testified that both Mother and
      Father have individual characteristics that are contributing or will

                                     -7-
J-S56031-15


      contribute to [Child’s] difficulties and that both parents need to
      equally participate in family therapy to work towards changing
      their parenting behaviors.

            At the time of the hearing, Father had not yet participated
      in any therapy and stated that he will not participate in any
      therapy unless [Child] is returned to him immediately.

(Trial Court Opinion, 6/04/15, at unnumbered pages 1-2). (one record

citation omitted).

      The trial court concluded that Father’s refusal to participate in therapy

unless Child is returned to him immediately, and his lack of personal

financial resources to do so, (see id. at unnumbered page 2), clearly

demonstrate that he has failed to meet the conditions set forth by Dr.

MacGregor for Child’s return to his custody. This finding is supported by the

record. (See N.T., 4/14/15, at 103-105).

      Our review of the record reveals that there is sufficient evidence to

support the trial court’s determination that Child “is a dependent child and is

lacking proper parental care, control, subsistence, and education, as

required by law or other care or control necessary for [Child’s] physical,

mental and emotional health or morals.” (N.T., 4/14/15, at 148).

      Accordingly, we affirm the trial court’s order.

      Order affirmed.




                                     -8-
J-S56031-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




                          -9-
