J-A20026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF A.H., A MINOR           :   IN THE SUPERIOR COURT OF
    APPEAL OF A.W., MOTHER                     :        PENNSYLVANIA
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                                               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 122 MDA 2019

        Appeal from the Dispositional Order Entered December 14, 2018
       In the Court of Common Pleas of Northumberland County Juvenile
                  Division at No(s): CP-49-DP-0000136-2018


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED OCTOBER 01, 2019

       A.W. (Mother) appeals from the order adjudicating her six-year-old

child, A.H. (Child), dependent. We affirm.

       Children and Youth Services of Northumberland County (“CYS”) became

involved with the family in 2017. In January 2018, CYS “received a referral

. . . that there was no heat in the home and the natural mother was allowing

drug users in the home” with Child. Dependency Petition, filed 12/07/18, at

3.1 Upon investigation, CYS confirmed that Mother was in fact without heat

and was able to obtain heating oil for Mother. Id. In September 2018, Mother

contacted CYS “stating she was in need of a fridge and stove.” Id. In October

2018, CYS “received a referral that [Child] was dirty and smelled when she

attended school.” Id. at 4. That same month, CYS “received a Child Protective
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1Dependency petition states that Child’s other siblings live in North Carolina.
See Dependency Petition at 2.
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Services referral alleging sexual abuse of the minor child, . . . by the natural

mother’s paramour.” Id. Travis Perkins is Mother’s boyfriend. Id. The referral

alleged that Perkins “was watching pornography and masturbating while in

the presence of [Child]; it was also alleged that [Perkins] touched [Child]

inappropriately.” Id. Subsequently, a safety plan was put in place in which it

was ordered that Perkins “not be in the presence of Child.” Id.

        In November 2018, CYS received another referral that Perkins touched

Child inappropriately. Id. The referral alleged “that the natural mother started

taking [Child] to friend’s [sic] houses so that [Perkins] could visit her

residence.” Id. CYS filed a Shelter Care application in December 2018 alleging

that Child was “without proper parental care or control, subsistence, education

as required by law.” See Shelter Care Application, filed 12/05/18. On

December 7, 2018, CYS filed a dependency petition, again alleging that Child

was without parental care or control. See Dependency Petition. That same

day, the trial court entered an order that Child be placed in foster care and

scheduled a hearing for December 14, 2018. See Shelter Care Order, filed

12/07/18. The following testimony was presented at the adjudicatory

hearing.2

        Child’s occupational therapist, Mary Catherine Kelley, testified that

during one of their sessions, Child “began talking about staying at a friend’s

house because she can’t be around daddy anymore.” N.T., Adjudication

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2   Child was represented by Cindy Kerstetter, Esq. as the guardian ad litem.

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Hearing, 12/14/18, at 3, 5. Child explained that this was due to him touching

her private area. Id. at 5. She said, “I was sleeping in mommy and daddy’s

bed and mommy woke up to the bed moving and daddy touching me.” Id. at

5. Child also informed Kelley that her dad was named Travis. However, Travis

is not Child’s biological father but rather Mother’s boyfriend. See Dependency

Petition at 4; see also N.T. at 36. (testimony from caseworker Michelle Jones

of identity of Child’s natural father).

      During another session on October 4, 2018, Kelley noticed a smell

coming from Child. Id. at 5, 6. She described the smell as “very sour smelling,

very - - it just was a body odor I’ve never smelled on a child that age.” Id. at

10. Kelley then sent Child to the nurse’s office and the nurse provided her with

some wipes to clean herself. Kelley also dry shampooed and brushed Child’s

hair and gave her clean clothes to wear. Id. at 5, 6. Kelley also testified

“[t]here’s been a few times where I noticed [Child’s] clothes were dirty” and

“[t]here’s some times that she came into school several days in a row in the

same outfit, nothing changed, the same stain.” Id. at 6, 10.

      Mother’s case worker, Michelle Jones, testified that she initially became

involved with Child and Mother when Mother informed Jones that she was in

need of a refrigerator and stove. Id. at 12, 13. Jones testified that the next

time she was involved with Child and Mother was when she received “a referral

in September that [Child] had came to school and that her clothes were dirty

and that she had an awful smell.” Id. at 13. She also testified that “the teacher

seen her in the street in the morning time playing outside with no shoes on

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and she had the same clothes on as she had given her.” Id. at 14. This incident

occurred in October 2018. Id. at 32. Jones was unsuccessful in reaching out

to Mother but later was notified that Mother “was out of town and she had left

[Child] with a babysitter.” Id. When Jones finally spoke with Mother, Mother

informed her that she left Child with a babysitter but “the babysitter did not

do what she was supposed to do.” Id. at 15. Mother did not inform Jones of

the identity of the babysitter and Jones did not see the babysitter. Id. at 25.

Mother also informed Jones that she often leaves Child with a babysitter so

she can go “back and forth to Virginia with a custody issue with her other

children.” Id. at 25, 32.

      Jones also testified to one occasion where she “needed to pick up a food

order for [Mother] because there was no -- there was no food in the home.”

Id. at 16.

      The next time Jones became involved with Mother and Child was when

she received a referral from CPS in reference to Child being inappropriately

touched. Id. She received this report in either October or November 2018.

Id. at 23. Following this referral, a safety plan was put in place “that [Perkins]

would not be around [Child].” Id. at 16. After the safety plan was put in place,

Jones received a referral in December that “[M]other had broken the safety

plan and that the boyfriend had been in the home around [Child].” Id. at 16,

23. Jones stated, “I could not prove that the safety plan was broken.” Id. at

20. Jones and a CPS caseworker followed up with Mother at her home. During

their visit, Perkins was in the home and Child was at a neighbor’s house down

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the street. Id. at 17. Mother told Jones that Child and her boyfriend, Perkins,

had never been in the home together following the safety plan. Id. At the time

of the adjudication hearing, Mother was still involved with Perkins. Id. at 34.

      Jones also testified about her concerns regarding conditions in Mother’s

home. She stated, “I just did a home visit on 12/12[/18]. I went into

[Mother’s] refrigerator and there was nothing in the refrigerator to eat.” Id.

at 18. She also testified “[a]t one time [Mother] had a dog, and every time I

went into the home, it was a mess in there where he had gotten ahold of some

things and was tearing some things up.” Id.

      Jones testified that Child was interviewed by the Child Advocacy Center

(CAC) and “stated that mommy told her that daddy touched her when she

was three years old. She also stated that she was afraid to talk about the

touching because she didn’t want to get into trouble” with Mother. Id. at 21,

29. “Daddy” on this occasion referred to Child’s biological father. Id. at 22.

      At the time of the hearing, Child was placed in foster care. Id. at 35.

Ms. Jones testified that while in foster care, Child overate to the point of

making herself vomit three times during her first night in the resource home.

Id. at 35-36.

      The trial court determined that CYS had met its burden of proving by

clear and convincing evidence that Child was dependent. The court explained:

      So there’s obviously something going on here that I have real
      concerns with. The other thing is, the kid’s out in the street with
      no shoes on unsupervised. [Mother] goes away for a week. Hey,
      whoever [Mother] picks as the supposed babysitter, that’s on her.
      And if that babysitter didn’t do what they were supposed to do,

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      that’s also on [Mother]. The kid’s out in the street alone running
      around in October with no shoes on. That’s a real concern for me.
      No food in the refrigerator.

Id. at 43-44. This timely appeal followed.

      Mother raises the following issue: “Whether the trial court erred by

adjudicating [Child] dependent?” Mother’s Br. at 8.

      We review the grant of a dependency petition for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We “accept the findings of fact

and credibility determinations of the trial court if they are supported by the

record.” Id. However, we are not bound by the trial court’s “inferences or

conclusions of law.” Id.

      The Juvenile Act defines a dependent child as a child “without proper

parental care or control, subsistence, education as required by law or other

care or control necessary for [the child’s] physical, mental or emotional health,

or morals.” 42 Pa.C.S.A. § 6302. “In order to adjudicate a child dependent,

the court must determine that the above definition has been met by clear and

convincing evidence.” In re L.V., 127 A.3d 831, 835 (Pa.Super. 2015). Lack

of proper parental care or control may be established where there is evidence

that the parent’s conduct “places the health, safety or welfare of the child at

risk, including evidence of the parent’s . . . use of alcohol or a controlled

substance that places the health, safety or welfare of the child at risk.” Id.

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

[the] statutory definition of dependency.” In re M.T., 101 A.3d 1163, 1173


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(Pa.Super. 2014) (en banc) (quoting In re G.T., 845 A.2d 870, 872 (Pa.Super.

2004)). Clear and convincing evidence is defined as evidence 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.”

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re C.R.S., 696

A.2d 840, 843 (Pa.Super. 1997)).

         Here, Mother maintains that CYS failed to meet its burden of proving

“abuse or adequate allegations of neglect.” Mother’s Br. at 16. She argues

that “[t]he mere fact that [Mother] reached out to NCCYS, asking for help in

buying food for the house is not abuse or neglect of [Child]. In fact it is the

opposite of abuse or neglect.” Id. at 15. She further claims that Jones’

testimony regarding Child being outside without shoes was “not reliable.” Id.

at 12.

         Here, the trial court did not abuse its discretion in adjudicating Child

dependent. CYS established by clear and convincing evidence that Child is

without proper parental control. The evidence established that Mother placed

Child’s welfare at risk on multiple occasions. First, Jones testified that Child

was outside, unsupervised and without shoes, in the month of October. The

trial court credited this testimony, stating that it was concerned that “[t]he

kid’s out in the street alone running around in October with no shoes on.” N.T.

at 44. Mother’s only explanation for this incident was that she was out of town

and the babysitter she arranged to supervise Child “did not do what she was

supposed to do.” Id. at 15. However, it was part and parcel of Mother’s

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parental duties to choose a reliable and responsible babysitter and the

babysitter’s failings redound to Mother. Although this evidence of a single

instance of the babysitter’s failure to adequately supervise Child is not utterly

dispositive on its own, it was some evidence of dependency and the trial court

did not err in relying on it.

      Second, Mother failed to provide for Child’s physical health, as exhibited

by Child showing up to school on more than one occasion with a “sour smell,”

dirty clothes, and at times wearing the same clothes day after day.

Furthermore, Jones testified to one occasion where Mother had no food in the

house and upon Child leaving the custody of Mother, Child overate to the point

of vomiting three times in one day. Additionally, as the trial court stated, at

the time of the hearing there was at least one allegation that Mother’s

boyfriend had perpetrated sexual abuse on Child. Despite this allegation,

Mother continued a relationship with her boyfriend and would send Child away

so that the boyfriend could visit.

      The above evidence supports the trial court’s finding that Mother’s

conduct “place[d] the health, safety or welfare of the child at risk.” 42

Pa.C.S.A. § 6302. The court did not abuse its discretion adjudicating Child

dependent.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/01/2019




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