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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.S., A MINOR                   :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                                       :
APPEAL OF: T.B., MOTHER,               :         No. 532 WDA 2014
                                       :
                       Appellant       :


               Appeal from the Order Entered March 4, 2014,
             in the Court of Common Pleas of Allegheny County
                Juvenile Division at No. Docket Number 29-14


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 03, 2014

     T.B. (“Mother”) appeals from the order entered March 4, 2014, which

granted the petition filed by the Allegheny County Office of Children, Youth

and Families (“OCYF”) seeking to adjudicate as dependent her child, B.S.,

(“Child”), pursuant to Section 6302 of the Juvenile Act, 42 Pa.C.S.A.

§ 6302(1).1 We affirm.

     Child was born in April of 2009.      OCYF became aware of Child on

January 3, 2014, after receiving a report that both of Child’s parents had

been arrested on January 2, 2014, and were incarcerated in the Allegheny

County Jail. The incident leading to their incarceration involved the armed

robbery of a pizza shop in Pittsburgh. Father went into the shop with a gun



1
 We note that Child’s father, D.S. (“Father”), stipulated to dependency and
has not filed an appeal in the instant matter.
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and demanded money out of the cash register.         Mother served as the

getaway driver.    The OCYF caseworker located Child at the home of his

maternal uncle.    An emergency custody authorization was obtained, and

after determining that the maternal uncle was an appropriate caregiver,

Child was permitted to remain in the maternal uncle’s home.

      On January 6, 2014, a shelter hearing was held, and the court

determined that Child was to remain in the care of his maternal uncle. OCYF

filed a petition for dependency under Section 6302(1), alleging Child was

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.

      On March 4, 2014, an adjudicatory hearing was held.            Father

stipulated to dependency due to the fact that he was currently incarcerated

and awaiting trial for the charges of carrying a firearm without a license,

robbery, conspiracy, and three counts of recklessly endangering another

person.   Mother stipulated that the following criminal charges were filed

against her:   one count of felony one robbery, one count of felony one

conspiracy, robbery, infliction of serious bodily injury, and one count of

driving while operating privilege is suspended; she was awaiting formal

arraignment. Mother did not stipulate to dependency since she was released

on bail prior to the adjudicatory hearing, and she claimed she was available

to parent Child.



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        Brian Huber (“Huber”), the intake caseworker, testified that he met

with both parents on January 6, 2014, at the Allegheny County Jail. (Notes

of testimony, 3/4/14 at 12.) Huber testified that Father told him the reason

for the robbery was that the couple was having difficulty paying their bills.

(Id. at 13.)      At the time of the robbery, their bills amounted to $1,800.

(Id.)    According to Huber, Mother told him both she and Father were

working full-time; however, Father’s hours kept getting reduced.       (Id. at

18.) Huber stated Mother told him Father’s reduced hours was the reason

they were unable to pay their bills. (Id.) Child was found dependent. The

trial court ordered Child to be returned to Mother’s custody with in-home

services to remain in place.

        Mother appeals and raises two issues for our review:

             1.      Did the Trial Court abuse its discretion by
                     misapplying the law when it found dependency
                     based solely on [Mother’s] economic status
                     and criminal allegations pending against her?

             2.      Did the Trial Court abuse its discretion by
                     making a decision that was manifestly
                     unreasonable when it found dependency
                     despite a record that [Mother] was ready to
                     provide proper parental care and control at the
                     time of trial?

Mother’s brief at 6.

        In In re R.J.T., 9 A.3d 1179 (Pa. 2010), the Pennsylvania Supreme

Court set forth our standard of review for dependency cases:

             [T]he standard of review in dependency cases
             requires an appellate court to accept the findings of


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              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.

Id. at 1190.

         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, 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.

         This court has explained:

              [T]he dependency of a child is not determined
              “as to” a particular person, but rather must be based
              upon two findings by the trial court: whether the
              child is currently lacking proper care and control, and
              whether such care and control is immediately
              available.

In re J.C., 5 A.3d 284, 289 (Pa.Super. 2010) (citations omitted).

         The burden of proof in a dependency proceeding is on the petitioner, in

this case OCYF, to demonstrate by clear and convincing evidence that Child




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meets that statutory definition of dependency.      See In the Interest of

T.M., 689 A.2d 954, 955 (Pa.Super. 1997).

     Our supreme court stated:

           A court is empowered by 42 Pa.C.S.§ 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
           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).

In re M.L., 757 A.2d 849, 850-851 (Pa. 2000).

     Initially, Mother asserts that the trial court incorrectly found that Child

was without proper parental care and control because of her economic status

and pending criminal charges. Mother’s brief goes on, at length, to question

the trial court’s conclusion that she was involved in the criminal episode

described by Father. Mother also argues that Child could not have been at

risk when Child was not in their immediate care.

     Regarding the pending criminal charges, the record indicates that

Mother’s counsel stated the following:

           We would stipulate to the existence of the criminal
           charges because that is a matter of public record;
           and mother is not denying it.

Notes of testimony, 3/4/14 at 6.




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                  Mother is willing to stipulate to the fact that
            she currently has criminal charges filed against her.
            Those charges being, one count of felony one
            robbery, one count of felony one conspiracy,
            robbery, inflict serious bodily injury. [T]he third
            charge is one count of misdemeanor three, driving
            while operating privilege is suspended.

                  Your Honor, it’s my understanding that those
            charges were filed according to the DJS (inaudible)
            on January 2, 2014. They are still pending; and the
            criminal case it’s my understanding is awaiting
            formal arraignment at this time.

Id. at 9.

      Huber testified that Father and Mother were arrested and both were

incarcerated when he met them on January 6, 2014, and were facing

numerous criminal charges stemming from an incident involving the armed

robbery of a pizza shop on January 2, 2014. At the time of the March 4,

2014 hearing, Father remained in jail while Mother was out of jail and

awaiting formal arraignment. (Id. at 10.)

      While Mother did not testify at the hearing, Huber testified Father

explained that because of the financial difficulties they were facing as a

family, “that’s why, they did what they did.” (Id. at 13.) After hearing the

testimony that both parents were arrested and charged as a result of their

actions in the same incident, and that Mother stipulated to the same charges

filed against her, there was ample evidence to conclude Mother had been

implicated in the events leading to criminal charges being filed against her.




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       Mother also argues the trial court used her economic status against

her.   Financial uncertainty alone would not be a basis for a finding of

dependency.      In re R.R., 686 A.2d 1316, 1318 n.1 (Pa.Super. 1996).

However, our review of this matter reveals more than financial uncertainty

at issue here.   While Mother did not testify, she responded to a question

posed by the trial court and stated she was not working.                (Notes of

testimony, 3/4/14 at 38.) With her husband now incarcerated, this family is

arguably in a worse position than they were before January 2, 2014, the

date of the armed robbery.

       The trial court noted:

                    Mother ha[s] made some progress upon being
             released from jail. She was able to avoid eviction
             and was cooperative with services. It appeared that
             she had some support from her brother who lived in
             the apartment next door to the family. While mother
             was unsure about the future with regard to her
             pending criminal charges, she appeared to have a
             strong bond with [Child].          However, Mother’s
             inability to financially support [Child] and decision to
             resort to committing armed robberies to pay
             household bills is troubling. Mother’s poor decision[-
             ]making skills coupled with her inability to support
             [Child] is cause for concern for the court and
             indicative that she cannot provide proper parental
             care or control for [Child].

Trial court opinion, 4/30/14 at 3.

       Clearly, the trial court considered more than Mother’s economic

situation when rendering its decision.      Issues regarding housing, income,




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serious pending criminal charges, and poor decision-making by Mother all

combined to leave Child without proper parental care and control.

       We observe Mother points out Child was with his maternal uncle when

the robbery took place. As such, Mother contends Child could not be at risk

because he was not in his parents’ immediate control.         (Mother’s brief at

13.) It appears Mother is saying the court should look favorably on the fact

she and Father did not have Child with them during the armed robbery.

Mother gets no credit for this claim.     By committing this crime, Father is

incarcerated and Mother could soon be joining him. It is very possible Child

will be without either of his parents for some time.

       In her second issue, Mother argues the trial court made a decision that

was manifestly unreasonable, as Mother was ready to provide proper

parental care and control at the time of trial.      Mother points to the trial

court’s recognition that she “had made some progress upon being released

from jail” to support her argument that since the financial crisis had been

abated, a finding of dependency was manifestly unreasonable. (Id. at 13-

14.)

       In its opinion, the trial court notes that it was not until the dependency

petition was filed that the family sought any type of services to assist them

with rent or utilities. (Trial court opinion, 4/30/14 at 2.) Samantha Parsons

(“Parsons”), the family services caseworker, testified she met with Mother

and made a referral for in-home services to provide assistance and connect



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the family with community resources.      (Notes of testimony, 3/4/14 at 25-

26.) Parsons noted the family was not working with any of these services

prior to their arrest. (Id. at 26.) Until OCYF became involved, Mother did

not have the wherewithal to resolve her financial problems. The trial court

properly based its finding of dependency on prognostic evidence that Mother

was unable to use good judgment to effectively resolve her financial crisis

without continued OCYF assistance and court supervision.          Judges are

permitted to use “prognostic evidence” when deciding the dependency status

of a minor. In Re: M.W., 842 A.2d 425, 430 (Pa. Super. 2004).

      We discern no abuse of discretion by the trial court based on the

totality of the circumstances in this case. The trial court permitted Child to

remain in Mother’s custody with in-home services to remain in place. The

court will continue to review this matter at the permanency hearings and

consider the outcome of Mother’s pending criminal matter.       Upon careful

review, we conclude OCYF met its evidentiary burden to support the

adjudication order. Accordingly, we affirm the order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014



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