J-S60030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: B.L.F., A MINOR CHILD               :   IN THE SUPERIOR COURT OF
    APPEAL OF B.M.F.                           :        PENNSYLVANIA
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                                               :   No. 735 WDA 2017

                  Appeal from the Order Entered May 17, 2017
                  In the Court of Common Pleas of Blair County
                  Civil Division at No(s): CP-7-DP-00022-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                               FILED OCTOBER 20, 2017

        Appellant, B.M.F. (“Father”), appeals from the May 17, 2017 Order

which adjudicated his infant child, B.J.F. (“Child”), dependent and placed Child

in foster care. After careful review, we conclude that the trial court heard

sufficient evidence to adjudicate Child dependent but failed to establish a clear

necessity for placement of Child outside of Father’s home. We, therefore,

affirm in part and vacate in part.

        L.J. (“Mother”) gave birth to Child in February 2017.         At that time,

Mother was married to A.J., rendering A.J the legally presumptive father of

Child.1 Shortly after Child’s birth, on February 22, 2017, at the request of

Blair County Children, Youth, and Families (“Agency”), the trial court issued

an Emergency Protective Custody Order and placed Child in foster care due to

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1   Mother and A.J. subsequently divorced in April 2017.
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*    Former Justice specially assigned to the Superior Court.
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Mother’s extensive history with the Agency and safety concerns if Mother were

to leave hospital with Child.       On February 24, 2017, the trial court held a

shelter care hearing, ordered Child to remain in foster care, and scheduled an

adjudicatory hearing for March 2, 2017.

       On March 2, 2017, the trial court continued the adjudicatory hearing

pending the results of paternity testing, which ultimately determined that

Father was the biological parent of Child.

       On May 11, 2017, the trial court held an adjudicatory hearing. At the

request of the Agency, and over Father’s objection, the trial court took judicial

notice of the record of previous dependency and involuntary termination of

parental rights proceedings regarding Mother’s older children, including

findings of aggravated circumstances.2

       Initially, the Agency presented evidence regarding Mother.          Mother

stipulated that if called to testify, the Agency’s witnesses would testify

consistent with the allegations in the February 24, 2017 Dependency Petition,

which we incorporate herein. In sum, Mother’s four older children have either

been placed in foster care or adopted.           Mother has a history of substance

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2 The Agency presented evidence that the courts had made a finding of
aggravated circumstances against Mother on December 20, 2011 for
aggravated physical neglect, on June 18, 2012 for failure to maintain
substantial and continuing contact, and on August 2, 2016 for a prior
involuntary termination of parental rights. The trial court involuntarily
terminated Mother’s parental rights to two of her children by Orders entered
June 12, 2012, and February 14, 2017.



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abuse, domestic violence, untreated mental health issues, and unstable

housing. Mother has been generally non-compliant with services offered by

the Agency. Most recently, the Agency received information that Mother was

drinking alcohol while pregnant with Child and that she was not receiving pre-

natal care.

      The Agency next presented evidence regarding Father.           Adoption

Caseworker Rachel Steinbugl testified that Father resides in an appropriate

home with his parents, Paternal Grandfather and Paternal Grandmother.

Father maintains full-time employment and works the night shift.          Ms.

Steinbugl testified that Father does not have a criminal record and does not

have problems with drugs or alcohol.      The Agency’s primary concern with

Father having physical custody of Child is that Father would allow Mother to

have unsupervised contact with Mother.

      The Agency presented testimony from Jenny Walter, a Path Program

Supervisor, who supervises Father’s visitation with Child twice a week. Ms.

Walter testified that Father does well during the visits and that Father only

missed one out of fourteen visits due to illness.

      The Agency presented testimony from Paternal Grandfather, who stated

that Father works from 6:00 P.M. to 6:00 A.M., which alternates between

three days one week and four days the next week. Paternal Grandfather is

available to care for Child while Father is at work.   Paternal Grandmother

works a full-time job, but is available on nights and weekends to assist in

caring for Child while Father is at work. Paternal Grandfather would not allow

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Mother to have unsupervised contact with Child, and expressed concerns that

an ongoing relationship between Mother and Father would not be in Child’s

best interests.

        Paternal Grandfather admitted that he had a criminal history from

twenty years ago; he has a misdemeanor simple assault conviction from 1997

and a theft conviction from 1998. Paternal Grandfather received inpatient

alcohol treatment in 2008, and has not had a problem with alcohol since then.

Paternal Grandmother does not have a criminal history.

        Finally, the Agency called Mother as an adverse witness to testify about

her current relationship with Father.     Mother denied being in a romantic

relationship with Father.     The Agency showed Mother Exhibit 3, which

consisted of six printed pages off the Facebook website showing, in pertinent

part:    pictures of Mother, pictures of Mother and Father together, and

messages conveying affection towards Father. Mother acknowledged that at

least some of the Facebook posts in Exhibit 3 were her posts. When asked

about posts regarding Father, Mother claimed her Facebook page had been

hacked.

        Father testified on his own behalf, and stated that he wanted Child to

live with him. Father purchased a crib and some clothes for the baby, and

stated he was going to buy more things in the next few days. Father confirmed

that he has the Paternal Grandparents’ support in caring for Child. Father

testified that he has some experience caring for babies because he babysat




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his best friend’s daughter several times a week for the first year of the child’s

life.

        Father testified regarding his employment history. Father served in the

United States military from 2005 until 2011, when he was honorably

discharged. Father then worked in construction, and he is currently employed

full time at a company named Cenveo.

        Father testified about his relationship with Mother and stated that they

are not currently romantically involved. Father began dating Mother around

February 2016 and in March or April of 2016, they moved in together. After

two months, the couple broke up after Mother told Father to move out without

explanation. Mother and Father did not have any contact until November 2016

when Mother told Father she was pregnant. At that time, Mother and Father

discussed possibly rekindling their relationship and moving back in together,

but Father wanted to wait and get a paternity test.       Prior to Child’s birth,

Father changed his mind about moving in with Mother and “thought it would

have been better off that we each get our own place and discuss the whole

custody thing.” N.T. Adjudicatory Hearing, 5/11/17, at 77.

        Father testified that he was not aware of Mother’s prior involvement with

the Agency until the Child was born and the Agency came to the hospital. If

Child lives with Father, Father believes that Mother should have scheduled

supervised visitation with Child. Father prefers that the visits are supervised

by him and another party simultaneously “[j]ust so I have a witness just in

case anything happens there’s another person involved so I’m not the only

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person with the eyes that seen what went on and that occurred at that

moment and time.” Id. at 69.

       Father testified that since Child’s birth, he has become closer friends

with Mother. Father testified that he sees Mother one or two days a week and

stated, “We mainly been hanging out a lot lately due to the fact that we’re

trying to figure this whole situation out together as friends.” Id. at 78. Father

stated that he does not anticipate becoming romantically involved with Mother

in the future.

       Father testified that he deactivated his Facebook account over a year

ago. When the Agency showed Father Exhibit 3, which included pictures of

Father and Mother on Mother’s Facebook page, Father stated that he had not

previously seen the Facebook posts.

       At the conclusion of the hearing, the trial court adjudicated Child

dependent, granted the Agency legal custody of Child, and ordered Child to

remain in foster care.       The trial court ordered the permanency goal to be

reunification with Father, with a concurrent goal of adoption, and ordered the

Agency to implement appropriate reunification services.3          Father timely

appealed. Both Father and the trial court complied with Pa.R.A.P. 1925.

       Father raises the following issues on appeal:




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3 The trial court made a finding of Aggravated Circumstances against Mother
and ordered that the Agency did not have to make reasonable efforts to
reunify Child with Mother.

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   1. Whether the admission of testimony from other proceedings was
      proper, where the Father was not a party to those proceedings?

   2. Whether evidence that [] Father maintained a relationship with []
      Mother, who had neglected her other children, is sufficient to
      support an adjudication of dependency?

   3. Whether a clear       necessity   for   placement     of   [Child]   was
      established?

Father’s Brief at 10 (reordered for ease of disposition).

      The Pennsylvania Superior Court has 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., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted).

      To adjudicate a child dependent, a trial court must determine by clear

and convincing evidence that the child, inter alia, “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.”

In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (citing 42 Pa.C.S. § 6302).

Further, “[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[.]”

42 Pa.C.S. § 6302. Clear and convincing evidence is defined as testimony

that is “so clear, direct, weighty, and convincing as to enable the trier of facts

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to come to a clear conviction, without hesitancy, of the truth of the precise

facts in issue.” In re A.B., supra at 349 (citation and quotation omitted).

      The overarching purpose of the Juvenile Act is to preserve the unity of

the family whenever possible.       Id. (citing 42 Pa.C.S. § 6301(b)(1)).

Accordingly, “a child will only be declared dependent when he is presently

without proper parental care and when such care is not immediately

available.” In Interest of R.T., 592 A.2d 55, 57 (Pa. Super. 1991). This

Court has defined “proper parental care” as care which is “geared to the

particularized needs of the child and [] at a minimum, is likely to prevent

serious injury to the child.”   In re A.B., supra at 349.      Further, “when

determining whether a parent is providing a minor with proper care and

control, we believe that the caretaker's acts and omissions should weigh

equally.   The parental duty extends beyond mere restraint from actively

abusing a child; rather, there exists a duty to protect the child from the harm

that others may inflict.” In re A.H., 763 A.2d 873, 876 (Pa. Super. 2000)

(internal citations and quotation marks omitted). Finally, our Supreme Court

has held unequivocally that “where a non-custodial parent is ready, willing[,]

and able to provide adequate care to a child, a court may not adjudge that

child dependent.” In re M.L., 757 A.2d 849, 851 (Pa. 2000).

      Once a child is found to be a dependent child, the trial court may enter

a disposition “best suited to the safety, protection and physical, mental, and

moral welfare of the child[,]” including, inter alia, permitting the child to


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remain with his parent subject to supervision as directed by the court or

transferring temporary legal custody of the child to an agency. 42 Pa.C.S. §

6351(a). However, a trial court may not separate that child from his or her

parent unless it finds that the separation is clearly necessary. In re G.T., 845

A.2d 870, 873 (Pa. Super. 2004). “Such necessity is implicated where the

welfare of the child demands that he or she be taken from his or her parents'

custody.” Id. (citation and quotation omitted). Further, clear necessity for

removal is not shown until the trial court determines that alternative services

that would enable the child to remain with his or her family are unfeasible. In

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

      In his first issue on appeal, Father avers that the trial court erred when

it incorporated into the record the testimony from several previous

dependency and termination proceedings involving Mother’s other children.

Father’s Brief at 26. Father argues that testimony from other proceedings is

hearsay pursuant to Pa.R.E. 801(c) and does not qualify for the Pa.R.E.

804(b)(1) former testimony exception to the hearsay rule. Id.

      It is well settled that “[a] party complaining, on appeal, of the admission

of evidence in the court below will be confined to the specific objection there

made.”    Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012)

(citation omitted). If counsel states the specific grounds for an objection, then

all other unspecified grounds are waived and cannot be raised for the first

time on appeal. Id.


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      During the adjudicatory hearing, the trial court took “judicial notice of

the prior dependency proceedings [regarding A.J. III and I.H.]” and “judicial

notice of involuntary TPR proceedings [regarding A.J. III and I.H.]”        N.T.

Adjudicatory Hearing, 5/11/17, at 8. Father’s counsel made an objection to

the admission of any testimony or stipulations from those proceedings based

on relevancy, stating: “A bunch of it I think is not relevant given the mother’s

position that she doesn’t seek to be a resource for the child.” Id. at 7. Now

on appeal, Father avers that the testimony from prior proceedings was

improperly admitted into evidence because it constitutes hearsay. Father did

not raise this specific objection during the adjudicatory hearing, and, thus, we

deem this issue to be waived. See Lopez, supra at 81.

      In his next issue on appeal, Father avers that he is ready, willing, and

able to care for Child, and that evidence that Father maintained a relationship

with Mother, who had neglected her other children, is not sufficient to support

an adjudication of dependency. Father’s Brief at 19, 24. Father argues that

having a relationship with Mother does not, in itself, place Child at risk and to

establish dependency, there must be evidence that the relationship actually

places Child at risk. Id. at 21.

      In its 1925(a) Opinion, the trial court concluded: “the evidence deduced

during our Adjudicatory/Dispositional Hearing held May 11, 2017 firmly

established that there is an ongoing relationship between the parents of

[Child], which is the primary source of concern to this [c]ourt as it relates


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to [] Father.” Trial Court Opinion, dated 6/6/17, at 5 (emphasis in original).

The trial court acknowledged that Father did not have any criminal or Agency

history, but expressed concerns about Father’s relationship with Mother

because Mother “poses a direct safety risk” to Child. Id. at 13 (emphasis

in original). The trial court cites In re R.W.J., 826 A.2d 10, 15 (Pa. Super.

2003), to support its conclusion that prognostic evidence is sufficient to

declare a child dependent, and opines that Father’s relationship with Mother

is prognostic evidence of a safety risk to Child.

      A review of the record supports the trial court’s conclusion. While Father

may be ready and willing to care for Child, his relationship with Mother

indicates that he is not presently able to ensure Child’s safety. To adjudicate

Child dependent, the Agency had to present clear and convincing evidence

that Father engaged in “conduct . . . that places the health, safety or welfare

of the child at risk[.]” 42 Pa.C.S. § 6302. The trial court made a finding that

Mother and Father’s testimony regarding their platonic relationship was not

credible, and “the parents have a more involved and continuing relationship

than either parent acknowledged or admitted at the time of hearing.” Order,

5/16/17.   Father’s ongoing relationship with Mother, who the trial court

concluded presented a “direct safety risk” to Child, is clear and convincing

evidence of conduct that places the safety of Child at risk. Accordingly, we

find no abuse of discretion in the trial court’s adjudicating Child dependent.




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      In his final issue on appeal, Father avers that the Agency failed to

establish that there was a clear necessity to place Child in foster care and the

trial court erred when it entered that disposition. Father’s Brief at 29. Father

argues that any concern about Mother having unsupervised contact with Child

could be alleviated by a court order prohibiting such contact between Mother

and Child and implementing appropriate services in Father’s home. Id. at 29-

30.

      As stated above, a trial court may not separate a child from his or her

parent unless it finds that the separation is clearly necessary to ensure the

child’s safety and welfare. In re G.T., supra at 873. In order to make a

finding that separation is clearly necessary, a trial court must first determine

that alternative services enabling the child to remain with his or her family are

unfeasible. In Interest of K.B., supra at 515. We recognize, “it is not for

this Court, but for the trial court as fact finder, to determine whether a child’s

removal from his/her family was clearly necessary.” A.N. v. A.N., 39 A.3d

326, 334 (Pa. Super. 2012) (citation and quotation omitted).

      During the adjudicatory hearing, Father and Paternal Grandfather both

testified that they were willing to accept services into the home and that they

agreed Mother should have only supervised visitation with Child. The Agency

testified that it was possible to make a referral for “preservation services” if

the trial court ordered Child to live with Father and “reunification services” if




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the trial court ordered Child to remain in foster care.           N.T. Adjudicatory

Hearing, 5/11/17, at 23-24.

        In its Order of Adjudication and Disposition, the trial court made the

following finding regarding the clear necessity for Child’s placement in foster

care:    “Child’s placement is the least restrictive placement that meets the

needs of [Child] and there is no less restrictive alternative available, in that

[Child] is with his half-sibling in a family setting with foster parents who are

the adoptive resource for his sibling, and are willing to be the adoptive

resource for [Child] if reunification efforts are not successful.” Order, 5/16/17,

at 4. This finding simply describes where Child was placed. The court was

required, however, to make a finding regarding whether the implementation

of alternative services would allow Child to remain with Father.             See In

Interest of K.B., supra at 515.

        It is not for this Court, but for the trial court as fact finder, to determine

whether alternative services enabling Child to live with Father are feasible,

and consequently whether placement in foster care is clearly necessary. See

A.N. v. A.N., supra at 334. Because the trial court did not determine whether

alternative services enabling the child to remain with Father were feasible, the

court did not establish that separation from Father was clearly necessary to

ensure the child’s safety and welfare.        Accordingly, we are constrained to

vacate the dispositional portion of the trial court’s Order and remand this case

for a hearing to enable the trial court to make findings regarding: (1) whether


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implementation of alternative services enabling Child to remain with his Father

is feasible, and (2) whether there is a clear necessity to place Child in foster

care.

         We instruct the trial court to consider the totality of the evidence when

making these findings, including evidence presented by the Agency that

Father had appropriate housing, had full-time employment, had experience

with caring for a child, had no criminal history, had no history with the Agency,

and consistently attended visitation where he interacted appropriately with

Child.

         Order affirmed in part and vacated in part. Case remanded. Jurisdiction

relinquished.

President Judge Emeritus Stevens joins the memorandum.

Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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