J-S46001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: S.M., A            :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
                                        :
                                        :
 APPEAL OF: A.M., MOTHER                :   No. 3904 EDA 2017


            Appeal from the Order Entered November 13, 2017
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-DP-0002845-2015

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 30, 2018

     A.M. (“Mother”) appeals from the order denying her motion for

reunification with her daughter S.M. We affirm.

     S.M., who was born in 2007, lived with Mother until 2015, when the

Philadelphia Department of Human Services (“DHS”) received a report that a

sex offender was living in Mother’s home and filed a dependency petition. At

the subsequent hearing, DHS presented evidence that S.M.’s live-in stepfather

(“Stepfather”) had been convicted of possession and dissemination of child

pornography.   The evidence further showed that Mother was aware of the

conviction, yet nonetheless allowed Stepfather to have unsupervised contact

with S.M. because Mother trusted him. Juvenile Court Opinion, 1/10/18, at 2.

As a result of the juvenile court’s concern about the nature of Stepfather’s

offense, the risk Stepfather posed to S.M., and Mother’s resistance to

complying with DHS’s safety plan, S.M. was adjudicated dependent and placed
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with her paternal grandparents, with Mother having supervised visitation.

S.M.’s permanency goal was “return to parent or guardian.”           See, e.g.,

Permanency Review Order, 6/29/16, at 1.

       S.M. was not properly cared for by paternal grandparents, and her

mental health needs1 overwhelmed a foster parent, resulting in subsequent

placement with her maternal grandmother. Meanwhile, Mother progressed to

unsupervised visits, with measures taken to ensure that Stepfather did not

have unsupervised contact with S.M., as a stay-away order prohibiting

Stepfather from having contact with S.M. had been entered in 2016. Id. at

5-6.    While her visits with Mother went well, S.M. exhibited behavioral

problems at school despite receiving in-school services for emotional and

therapeutic support. Id.

       At permanency review hearings, Mother maintained her position that

Stepfather was a father-figure to S.M., that S.M. had bonded with him, and

that S.M. desired to return to Mother’s home. Id. at 5. However, the juvenile

court maintained the stay-away order and refused to return S.M. to Mother.

Indeed, concluding that Mother’s home remained unsafe for S.M., the juvenile

court declined reunification and placed her with her biological father (“Father”)

in October 2017.


____________________________________________


1 S.M. was diagnosed with attention deficit hyperactivity disorder, oppositional
defiant disorder, bi-polar disorder, and post-traumatic stress disorder, and
took several medications including Adderall. Juvenile Court Opinion, 1/10/18,
at 3-5.

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       Mother sought reconsideration of the court’s denial of her request for

reunification, and a hearing was held on November 13, 2017.              At that

proceeding, DHS and S.M.’s child advocate acknowledged that S.M. was

thriving in Father’s care. Id. at 6. S.M. testified in camera that she enjoyed

visiting Mother, but was happy residing with Father and wanted to continue to

live with him. Id. Concluding that “the dependency issues still existed in

Mother’s home” and that S.M.’s needs and welfare were best served by

remaining in Father’s home, the juvenile court denied Mother’s motion. The

court further “refused to allow Mother to have overnight visits with [S.M.] due

to its concern that Stepfather might have unsupervised contact with [her],

despite the existence of the stay-away order.” Id. at 7.

       Mother filed a timely notice of appeal and statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The juvenile

court authored its opinion, and the matter is ripe for our review.       Mother

presents this Court with the following questions.2

             1.    Did the [juvenile] court err and/or abuse its discretion
       by denying Mother and Child their U.S. and Pennsylvania
       constitutional and statutory rights in light of Commonwealth v.
       Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied ___U.S. ___, 138
       S. Ct. 925 (Jan. 21, 2018)?
____________________________________________


2 Mother raises additional complaints in the body of her brief, such as the
juvenile court’s suggestion that Stepfather take a polygraph test to
demonstrate his purported lack of arousal by children, and the use of a
dependency proceeding to transfer custody to a child’s non-custodial parent.
Mother’s brief at 22. These issues are not properly before us, as they were
neither raised in Mother’s Rule 1925(a)(2)(i) statement nor included as
questions presented in her appellate brief.

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            2.    Did the [juvenile] court err and/or abuse its discretion
      by denying Mother’s Motion for Reunification in light of the holding
      in Commonwealth v. Muniz, supra, which holding removed the
      purported legal basis for the adjudication of dependency pursuant
      to the Pennsylvania Juvenile Act, 42 Pa.C.S. [§] 6301 et seq., and
      the Pennsylvania Child Protection Services Act, 23 Pa.C.S. § 6301
      et seq.?

Mother’s brief at 4.

      We begin with our standard of review.      “In dependency matters, we

review the trial court’s order pursuant to an abuse of discretion standard of

review.” In Interest of H.K., 172 A.3d 71, 74 (Pa.Super. 2017). “As such,

we must accept the court’s findings of fact and credibility determinations if

they are supported by the record, but we need not accept the court’s

inferences or conclusions of law.” Id.

      Mother’s arguments are based upon our Supreme Court’s decision in

Muniz. In that case, the Court held that the requirements set forth by our

legislature in the Sex Offender Registration and Notification Act (“SORNA”)

were punitive, and thus could not be applied retroactively given the

Pennsylvania constitution’s prohibition against ex post facto laws.          It is

Mother’s contention that the effect of Muniz “is to nullify the purported basis

for S.M.’s adjudication of dependency, and no other dependency issues exist.”

Mother’s brief at 21. We disagree.

      The dependency petition that commenced this case alleged, inter alia,

that Mother has a history of drug use, was taking double her prescribed dosage

of oxycodone, and was not always able to meet S.M.’s dietary and hygiene


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needs; and that Stepfather was arrested in 2001 and charged with twenty

counts of possession of child pornography and six counts of dissemination of

photographs or films of children in sex acts, pled guilty to some of the charges,

and was ordered to serve jail time and register under Megan’s Law.

Dependency Petition, 10/29/15, at ¶¶ a, o.       The juvenile court expressed

concern about Mother’s substance abuse and Mother’s ability to provide

parental care given her insistence that S.M. be allowed to have unsupervised

contact with a person convicted of child pornography offenses.              N.T.

Adjudication, 1/11/16, at 60-61.        The record reflects that S.M. was

adjudicated dependent based upon the following finding: “The child is without

the proper care or control, subsistence, education as required by law, or other

care or control necessary for [her] physical, mental, or emotional health, or

morals.” Order of Adjudication, 1/11/16, at 1.

      Contrary to Mother’s contention, S.M. was not adjudicated dependent

simply because Stepfather was required to register under SORNA at the time,

nor based upon any finding of abuse under the Child Protective Services Law.

23 Pa.C.S. § 6303 (including within the definition of child abuse leaving a child

unsupervised with someone known to be required to register as a Tier II or

Tier III sexual offender under SORNA). Therefore, Mother’s contention that

Muniz’s invalidation of Stepfather’s SORNA responsibilities destroyed the

entire foundation of the dependency action, or negated the dependency




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court’s jurisdiction, or somehow violated Mother’s fundamental parental

rights, is simply not grounded in fact.

       The remaining issue is whether the juvenile court abused its discretion

in denying Mother’s motion for reunification.3 Mother argues that “the juvenile

court found that even though there were no dependency issues in [Mother’s]

home[,] reunification would not be allowed, thus refusing to fully reinstate

Mother’s fundamental right to the care, custody[,] and control of S.M. without

any evidence of past harm or future threat.” Mother’s brief at 23.

       Again, Mother’s position is detached from reality.     Whether or not

Stepfather has to register as a sex offender, he has an admitted history of

child sexual abuse. See 18 Pa.C.S. § 6312 (identifying crimes of possession

and dissemination of child pornography as constituting sexual abuse of


____________________________________________


3  Mother includes in this argument a contention that S.M.’s due process rights
were violated because the court did not appoint an attorney separate from her
guardian ad litem to represent her wishes. Mother’s brief at 25 (citing In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)). The issue decided in L.B.M.
was “whether 23 Pa.C.S. § 2313(a), which mandates the appointment of
counsel for children involved in contested involuntary termination of parental
rights (‘TPR’) proceedings, is satisfied by the appointment of a guardian ad
litem (‘GAL’) provided that the GAL is an attorney.” L.B.M., supra at 174.
At the time of the proceedings at issue in the instant appeal, L.B.M.’s holding
had not been extended beyond TPR proceedings. However, while this appeal
was pending, this Court extended the requirements of L.B.M. and its progeny
to dependency actions generally. See In re J'K.M., ___ A.3d ___, 2018 WL
3121360 (Pa.Super. June 26, 2018) (reversing order denying appointment of
a separate counsel for dependency proceedings where there was a conflict
between the child’s best interests and legal interests). Accordingly, if the
juvenile court determines there is a conflict between S.M.’s wishes and her
best interests, S.M. must have separate legal counsel to advocate for those
disparate interests in future proceedings.

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children).   Her stubborn insistence that “there is no legal or factual basis

anymore” for S.M. not to be left alone with Stepfather itself validates the

juvenile court’s decision that the circumstances that led to the initial

adjudication of dependency still exist in Mother’s home.                  See N.T.

Reconsideration, 11/13/17, at 15; Juvenile Court Opinion, 1/10/18, at 9

(indicating that Mother’s home remains unsafe because a sex offender is still

residing there).

      Given that the child advocate and DHS have continuing concerns that

Mother will allow Stepfather to have unsupervised contact with S.M., see N.T.

Reconsideration, 11/13/17, at 14-15, and that S.M. is happy and thriving in

her current placement with Father, id. at 6, the juvenile court’s findings are

supported by the record.       Further, Mother has not demonstrated that the

decision “was manifestly unreasonable, that the court disregarded the law, or

that its action was a result of partiality, prejudice, bias or ill will.” In Interest

of L.T., 158 A.3d 1266, 1276 (Pa.Super. 2017) (internal quotation marks

omitted).    Accordingly, we hold that the juvenile court did not abuse its

discretion in denying Mother’s motion for reunification.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/18




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