J-S37018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF C.B., JR.,                IN THE SUPERIOR COURT OF
A MINOR                                            PENNSYLVANIA



                   v.

APPEAL OF: C.B., SR.; FATHER

                                                  No. 264 MDA 2014


               Appeal from the Order Dated January 22, 2014
               In the Court of Common Pleas of Berks County
              Juvenile Division at No: CP-06-DP-0000060-2010


IN THE INTEREST OF A.B.,                     IN THE SUPERIOR COURT OF
A MINOR                                            PENNSYLVANIA



                   v.

APPEAL OF: C.B., SR.; FATHER

                                                  No. 265 MDA 2014


               Appeal from the Order Dated January 22, 2014
               In the Court of Common Pleas of Berks County
              Juvenile Division at No: CP-06-DP-0000046-2010


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED AUGUST 01, 2014




the Juvenile Division of the Court of Court of Common Pleas of Berks County
J-S37018-14


                                                                       1
                                                                             After

considered review, we affirm.

       In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court

summarized the procedural history of this case as follows:

            This family, including Father, [Mother], the minor children,
       and their half-sibling, D.J., has an extensive history with Berks

       minor children were previously in foster care from April 1, 2010,
                                                                       e
       in May 2012 and dependency was terminated in March 2013

       demonstrated sobriety and cooperation with substance abuse
       treatment. Unfortunately, less than a year and a half after their
       return to
       Mother had relapsed and disengaged from substance abuse
       treatment. After Mother missed two scheduled urine screens
       and tested positive on January 10, 2014, BCCYS petitioned for
       and was granted emergency custody of the minor children on

       including two years while the minor children were in foster care,
       Father has been largely uncooperative with BCCYS and court-
       ordered services.

             BCCYS filed petitions on January 15, 2014, requesting that
       the minor children be declared dependent. The Court held a
       detention hearing on January 17, 2014, and, at the conclusion
       thereof, determined that the minor children should remain in
       foster care until the adjudicatory and dispositional hearing on
       January 22, 2014. Upon the agreement of the parties, the Court
____________________________________________


1
    C.B., Jr. (d/o/b 1/18/07) and A.B. (d/o/b 12/8/09) are the children of

3/16/12), wi
at 7. The trial court issued an order and disposition for each child on

appeal addresses the orders with respect to Son and Daughter. Mother has

disposition with respect to D.J. are not before this Court in this appeal.



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J-S37018-14


        incorporated the testimony from the detention hearing into the
        dependency hearing. At the conclusion thereof, this Court found
        the children to be without the necessary care and control and
        that it was within their best interest to be removed from

        minor children dependent and transferring legal custody to
        BCCYS for placement purposes.

Trial                                                     -2 (references to notes of

testimony and court documents omitted).

        On   February     6,   Father    filed   timely   appeals,   which   we   have

consolidated sua sponte, and raised four issues in his Rule 1925(b)

statement of matters complained of on appeal, the same four issues he asks

this Court to consider on appeal:

        1. Did the lower court err by finding said children to be
           dependent?

        2. Did the lower court err by taking said children under the care
           of the court and placing them into foster care?

        3. Did petitioners establish by clear and convincing evidence
           that said children were dependent and should be placed into
           foster care?

        4. Was the evidence presented by petitioners insufficient to
                                                              hildren
           dependent and place them into foster care?
                      2



____________________________________________


2
  We remind counsel for Father of the requirements for matters to be
con
statement of jurisdiction, the orders in question, and the statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pa.R.A.P.
2111(a)(1), (a)(2), (a)(11) and (d).



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J-S37018-14


      Father suggests that his first and second issues are substantively

related and that his third and fourth issues are also substantively related.

                          Consequently, Father combines his arguments into

two parts, the first considering issues one and two and the second

                                                       -8 and 9-11. The trial

court, on the other hand, determined that the four issues identified in



      Father argues that the Court erred in declaring the minor
      children dependent and transferring legal custody to BCCYS for
      placement purposes.      Father contends that the evidence
      presented by BCCYS was insufficient to show that the minor
      children were without the proper care, control or subsistence
      necessary for their physical, mental and emotional health and
      that foster care [was] not [] the least restrictive placement to
      meet those needs.

T.C.O. at 3 (emphasis in original).     We agree with the trial court that the

four issues are so interrelated that they warrant unified discussion and we

shall conduct our review accordingly.

      Our Supreme Court set forth the 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

      review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      This Court has explained:


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J-S37018-14


        Dependency matters are governed by the Juvenile Act, 42
        Pa.C.S.A. § 6301, et seq.


        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. The question of whether a child is
        lacking proper parental care or control so as to be a dependent
        child encompasses two discrete questions: whether the child
        presently is without proper parental care and control, and if so,
        whether such care and control are immediately available.

        The burden of proof in a dependency proceeding is on the
        petitioner to demonstrate by clear and convincing evidence that
        a child meets that statutory definition of dependency.

In re E.B., 83 A.3d 426, 431 (Pa. Super. 2013) (citing In re T., G. (Appeal

of S.S.), 845 A.2d 870, 872 (Pa. Super. 2004) and 42 Pa.C.S.A. § 6302

(definition of dependent child)).3




the trial court provided the following excerpt from the dependency hearing

testimony:

        The Court:                 Anyone tha
                                   Now, a fair reading of everything   and

____________________________________________


3
    Pursuant to 42 Pa.C.S.A § 6302(1), the finding of lack of proper parental
                                                                       of the

safety or welfare of the child                 Id.



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                                   Mom cannot take the children right now.
                                   And [Father] is not in a position to care
                                   for  the   children.    Does    everyone
                                   acknowledge that?

                                   Yes.

                                   Yes.

       The Court:                  Everyone seems to be shaking their
                                   heads up and down. So therefore they
                                   are dependent children. I mean, does
                                   anyone really dispute the dependency
                                   aspect of these proceedings at this point
                                   in time?

                                   No, not on behalf of my client.

                                   As far as the parents are concerned, the
                                   kids would be dependent but there is, we
                                   think, [a] ready and willing relative.

T.C.O. at 4 (quoting N.T. Dependency Hearing, 1/22/14, at 6-7).4

       The trial court concluded that Father waived any challenge to the

determination of dependency by acknowledging the minor children would be

dependent with respect to the parents, but suggest

challenging the dependency finding as much as he was challenging the


____________________________________________


4
  H.J., who was incarcerated at the time of the dependency hearing, testified
that he was not an appropriate resource for the children as of the time of the
hearing. N.T. Dependency Hearing, 1/22/14, at 6. Mother acknowledged
she started using heroin again in the summer of 2013 and had used heroin
as recently as January 9, 2014. N.T. Detention Hearing, 1/17/14, at 9-10;
27-
Detention Hearing, 1/17/14, at 50.



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J-S37018-14


                                                               i.e

                                              -5. We conclude that the trial



worst because the trial court did consider Paternal Grandmother as an

alternative to designating the minor children dependent.   Further, the trial

court considered placing the minor children with Paternal Grandmother

rather than in foster care.



role in these proceedings.    Father contends the trial court used Paternal




Grandmother was not afforded a full opportunity to present evidence or

represent herself as a part                                          Paternal

Grandmother has not claimed party status and, in fact, has not filed any

documents with the trial court claiming party status or seeking to intervene

in the dependency proceedings, she did attend the detention hearing and

offered testimony. N.T. Detention Hearing, 1/17/14, at 34-55. Further, her

counsel presented argument at the dependency hearing. N.T. Dependency

Hearing, 1/22/14, 7-11.

      At the detention hearing, Mother was asked who was caring for the

minor children from May of 2012, when they were returned to her custody,




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J-S37018-14


home.5

Hearing, 1/17/14, at 9.6 Mother also testified that she took Son to Paternal



                                                 Id. at 13. Daughter and D.J. would



And [Daughter] would come and sleep overnight, sometimes stay an entire

              Id. at 36.     Paternal Grandmother testified that Son had been



                                  Id. at 34-35.      There was no suggestion that

Daughter lived with Paternal Grandmother at any time prior to January 10,

2014.

        Son was in first grade at the time of the detention hearing.          When



Grandmother
____________________________________________


5
    On January 10, 2014, Mother took Son, Daughter, and D.J. to Paternal


                                                            be determined at a later


6
 There is no suggestion in the record that the minor children ever lived with
Father or that he provided any level of care to them from May of 2012 until

Detention Hearing, 1/17/14, at 13, and on at least one occasion in 2013

evidenced by the traffic citation issued to Father for failing to have Daughter
properly restrained in the vehicle. N.T. Dependency Hearing, 1/22/14,
Exhibit 1.



                                           -8-
J-S37018-14




                                                                   Id. at 40.

When Mother was asked if she ever told anyone at BCCYS that she had



say that I gave custody because I did not legally, you know, at that point

give custody, but I said   I had told him before, yes, that [Son] most of the



         Id. at 16-17.

     Counsel for BCCYS noted:

     I was attempting to [] argue why grandmother cannot care for

     [Son] stay with grandmother, [Mother] was not there and she

     urine screen on January 10th.

     Other than that, our understanding he would stay [at Paternal
                                                           him back and
     forth to school. So we would argue that . . . mother was the one
     who had custody and that this whole façade or whatever you
     want to call it was really just done in an effort to avoid [BCCYS]
     from taking custody.

                                     ***

     [E]ven if this Court does deem that grandmother was the one
     that was caring for [Son], [] removal is still appropriate based on
     the fact that grandmother was not protecting him from father,
     was allowing unsupervised contact with father; that father was
     still residing in the home; that grandmother was deemed an
     unfit caretaker; that nothing [has] changed really since 2011;
     that grandmother continues to be dishonest; that grandmother
     was the whole part of the safety plan that she was supposed to
     report if mother started using and step in and help the children.

N.T. Dependency Hearing, 1/22/14, at 9-11.

                                     -9-
J-S37018-14



      As reflected in its opinion, the trial court considered

role in the care of the minor children at the time the trial court adjudicated

them dependent and as a resource for the minor children following that

adjudication. The court stated:

      At these hearings, the Court looked closely at Paternal
      Grandmother as a potential resource for the children and an
      alternative to foster care. However, after close inspection, the
      Court concluded that Paternal Grandmother was not an
      appropriate caregiver. When the children were previously in
      foster care, Paternal Grandmother had been denied as a kinship
      resource. In fact, when the children were first placed in foster

      care. One of the main concerns was that Paternal Grandmother
      allowed Mother and Father to have unsupervised contact with
      the children. This is particularly concerning in light of Paternal

      from Mother and Father when they are under the influence. At
      the detention hearing Mother testified that she informed Paternal
      Grandmother of her relapse. Of course, Paternal Grandmother
      testified to the contrary that Mother never said that she was

      testimony credible. The record established that Mother was
      exhibiting outward physical signs indicative of her drug use, that
      Paternal Grandmother was aware that Mother had been taking
      Suboxone, and that Mother was evasive when asked if she was
      using. It was evident to this Court that Paternal Grandmother
      either knew or should have known that Mother was using;
      however, Paternal Grandmother did nothing to protect
                                                            -time care.

T.C.O. at 5-6 (references to notes of testimony and court documents

omitted).




17 detention hearing but also a January 13, 2014 adjudication from the

                                    - 10 -
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Department of Public Welfare, denying Paternal Grandmother and Paternal



family placement resource. N.T. Dependency Hearing, 1/22/14, Exhibit 2.

      The trial court concluded:

      [T]he record contains sufficient evidence that the minor children
      were without proper care and control necessary for their
      physical, mental and emotional health.         Both Mother and

      risk. Father is not now, nor has he been for the last four (4)
      [years], able to parent the minor children on a full-time basis.
      Furthermore, the Court believes that ample evidence shows that
      foster care is the only available placement to protect the minor
      children.

T.C.O. at 6. We agree. Father does not suggest he provided proper care or

control for the minor children prior to the determination of dependency or

that he would be an appropriate resource going forward. Because the trial

court did not abuse its discretion in adjudicating the minor children

dependent pursuant to 42 Pa.C.S.A. § 6302, or in concluding that placement

of the minor children in foster care was best suited to the safety, protection

and physical, mental, and moral welfare of the minor children in accordance

wi

Orders of Adjudication and Disposition with respect to the minor children.

      Orders affirmed.




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J-S37018-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




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