J-S39011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.S., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: L.W.
                                                      No. 1219 WDA 2016


                        Appeal from the Order July 14, 2016
                In the Court of Common Pleas of Cambria County
                 Civil Division at No(s): CP-11-DP-0000120-2016


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 23, 2017

        L.W. (Mother) appeals from the order, dated July 14, 2016, and

entered on July 15, 2016, that adjudicated K.S. (Child), born in June of

2016, a dependent child and set the goal for Child as adoption.               After

review, we affirm.

        The July 14, 2016 order was issued by the court after a hearing was

held on July 11, 2016, in response to the dependency petition filed by

Cambria County Children and Youth Services (CYS). In its opinion, the court

set forth an abbreviated factual background involving this family, stating:

              L.W., [M]other, has six children in addition to [Child]. The
        six other children range in age from 15 years to five years. The
        father of [Child], C.S., is also the father of five of the six of
        [Mother’s] other children. Cambria County Children and Youth
        Service (CYS) originally initiated services to this family on April
        4, 2005 through August 26, 2009 and April 26, 2011 through
        November 15, 2012. CYS indicated that throughout these times
        CYS had ongoing concerns regarding lack of supervision of the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S39011-17


      children, lack of parenting skills, defiant behaviors of the
      children, financial instability, and criminal issues and
      incarceration of father. CYS again initiated services with six of
      [Mother’s] children on June 21, 2013. Then, between August
      2013 and August 2014, all six children were removed from the
      custody of [Mother] and the [c]ourt further ordered that
      [Mother] and C.S. … would “never be a placement option” for the
      children. On May 13, 2016 and June 17, 2016 Involuntary
      Termination of Parental Rights hearings were held regarding
      three of the children. At the time of the dependency hearing
      regarding [Child], a decision had not been rendered as to the
      Involuntary Termination of parental rights as to the other three
      children.

Trial Court Opinion (TCO), 9/12/16, at 2.      The court then described the

testimony provided by various witnesses at the hearing and explained its

reasoning for concluding that the issues raised by Mother in her Pa.R.A.P.

1925(b) statement of errors complained of on appeal were without merit.

      Specifically, in her Rule 1925(b) statement, Mother raised the

following issues:

      1. [CYS] failed to sustain its burden of proving [that Child] was a
      dependent child pursuant to 42 Pa.C.S.[] § 6301 et seq. because
      there is insufficient evidence on the record upon which a clear
      and convincing finding could be based that natural [M]other was
      unfit and cou[ld] not provide care for [Child].

      2. The [c]ourt’s finding that [Child] is a dependent child is
      against the weight of the evidence. [CYS] failed to produce clear
      and convincing evidence that [Child’s] [M]other was unfit to
      parent her newborn child.

      3. The [c]ourt’s opinion that placement and permanency through
      adoption is the safest and least restrictive placement for [Child]
      was made against the weight of the evidence. At the time of
      this order, no aggravated circumstances existed and [Mother]
      was ready to parent [Child].




                                     -2-
J-S39011-17


      4. The [c]ourt’s basis for its decision only reflected past events
      and previous conduct of [Mother]. At the time of the hearing,
      [CYS] did not review the cleanliness or habitability of the home,
      did not consider [Mother’s] ongoing parental services that were
      not offered by the State, and removed the child prior to
      [Mother’s] being able to take her home from the hospital.

      5. [Mother] requests that the right to supplement the Matters
      Complained of on Appeal be granted pending receipt of the
      transcript.

Mother’s Rule 1925(b) Statement, 8/11/16.

      Upon review of Mother’s brief however, we note that the Statement of

Questions Involved section asserts an issue dissimilar to the ones she put

forth in her Rule 1925(b) statement.      Specifically, the issue as stated in

Mother’s brief reads as follows:

      Whether the [c]ourt abused its discretion or committed an error
      of law when it granted the [p]etition for [d]ependency and
      ordered the permanency goal of adoption, without first
      attempting reunification under the Adoption and Safe Families
      Act[,] 42 U.S.C. [§] 671 et seq. [?]

Mother’s brief at 4.   However, the argument section of Mother’s brief sets

out two distinct arguments:

      I. Whether the court either abused its discretion or committed
      an error of law when it granted the petition for dependency,
      thereby finding the child dependent[?]

      II. Whether the court either abused its discretion or committed
      an error of law when it made the goal of K.S. adoption and not
      reunification, at the initial adjudication hearing, without
      aggravated circumstances[?]

Mother’s brief at 5 and 8.




                                    -3-
J-S39011-17


        Essentially, with regard to Issue I, Mother argues that the trial court

accepted CYS’s evidence of Mother’s past conduct to establish dependency

as defined in 42 Pa.C.S. § 6302 with regard to Child. 1 She also asserts that

she has not recently been provided with services by CYS and that, therefore,

the agency could not present evidence that she failed to perform her

parental duties.      Specifically, Mother asserts it has been more than two

years since services have been provided and that “with such a long period in

between services, house visits, and hands on interaction, CYS cannot

provide adequate testimony as to what knowledge [Mother] has gained as a

parent, the appropriateness of housing conditions, or the skills she learned

while not under the thumb of CYS.”             Mother’s brief at 6.   Thus, Mother



____________________________________________



1
    The definition of dependency states in pertinent part:

        “Dependent child.” A child who:

        (1) 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. § 6302.



                                           -4-
J-S39011-17


contends that she has done all that she could do to ensure Child’s return to

her.

       These arguments coincide to some extent with Mother’s fourth issue as

stated in her Rule 1925(b) statement, but in no way comport with her

statement of the issue in her brief on page 4.       Under the circumstances

here, this Court could conclude that Mother has not preserved any issue for

our review. However, despite the errors enumerated above, we will attempt

to respond to the arguments Mother has actually presented in the argument

section of her brief.

       Our scope and standard of review in dependency cases is as follows:

       We must accept the facts as found by the trial court unless they
       are not supported by the record. Although bound by the facts,
       we are not bound by the trial court’s inferences, deductions, and
       conclusions therefrom; we must exercise our independent
       judgment in reviewing the court’s determination, as opposed to
       its findings of fact, and must order whatever right and justice
       dictate. We review for abuse of discretion. Our scope of review,
       accordingly, is of the broadest possible nature. It is this Court’s
       responsibility to ensure that the record represents a
       comprehensive inquiry and that the hearing judge has applied
       the appropriate legal principles to that record. Nevertheless, we
       accord great weight to the court’s fact-finding function because
       the court is in the best position to observe and rule on the
       credibility of the parties and witnesses.

In the Interest of A.N., 39 A.3d 326, 330 (Pa. Super. 2012) (quoting In

re C.M.T., 861 A.2d 348, 351 (Pa. Super. 2004) (citations omitted)). “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 G., T., 845 A.2d 870, 872 (Pa.


                                      -5-
J-S39011-17



Super. 2004). Moreover, “the 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).

     As previously noted, the trial court discussed the testimony of various

witnesses.   Those witnesses included Brittney Corson, a CYS caseworker,

Dennis M. Kashurba, a licensed psychologist, Martha Faust, program director

and parent educator for Parents as Teachers through Beginnings, and

Father. Then, based on this testimony, the court explained the reasons for

finding Child dependent, stating:

           Here, the court heard testimony from Corson that Mother’s
     house was clean in June 2016, one month before the hearing but
     that in the past when children lived with Mother the house was
     in a deplorable condition. Corson stated that she believed that
     Mother was able to keep her house clean in June 2016 because
     no children lived with [M]other. However, Mother was not able
     to care for children and keep a clean house at the same time.
     Corson stated that Mother was most likely overwhelmed by
     having such responsibilities at the same time.          Although
     [Mother] alleges that the court did not consider the state of the
     home at the July 11, 2016 hearing, the record proves otherwise.
     Even more, the court considered the most recent state of the
     house in addition to Mother’s ability over time to keep a clean
     and habitable house.

           Next, the court heard testimony from Faust who stated
     that she rendered services to Mother through the Parents as
     Teachers program.      The court considered this testimony,
     especially that Faust met with Mother for one hour once a week
     and had only conducted four sessions at the time of the hearing.
     Though Mother did initiate these non-state services, the record


                                    -6-
J-S39011-17


      also reflects that Mother was receiving services through CYS for
      almost a decade to no avail.

            Weighing the evidence regarding Mother’s ability to keep a
      clean and habitable home (the state of her home as observed by
      Corson in June 2016 and the deplorable conditions that existed
      previously), the services that Mother was currently receiving and
      had received in the past, and her inability to parent over an
      extended period of time, together with the testimony of Corson
      and Kashurba who stated that Mother would never be able to
      parent any child, this court found that clear and convincing
      evidence proves that if custody of K.S. was given to Mother,
      proper parental care would not be immediately available. Thus,
      the court did not err in its consideration of the evidence of past
      events and conduct.

TCO at 14-15.

      We agree.     Based upon the law set forth above and a review of the

record in this case, we conclude that the trial court did not abuse its

discretion in adjudicating Child dependent and placing her in the custody of

CYS. The trial court’s findings are supported by the testimony and evidence

presented at the hearing.     Mother’s arguments are generally an attack on

the trial court’s credibility determinations and she disregards the evidence

before the court that contradicts her position regarding dependency. Thus,

Mother is not entitled to relief.

      Mother’s second argument refers to the court’s determination that set

the goal for Child as adoption.        This argument centers on Mother’s

contention that because aggravated circumstances did not exist, the court’s

stated goal of adoption, without attempting reunification, was in error. We

disagree with Mother’s position and again agree with the trial court. We rely

on that portion of the opinion of the Honorable Tamara R. Bernstein of the


                                     -7-
J-S39011-17



Court of Common Pleas of Cambria County, dated September 12, 2016.

See TCO at 8-13.       Judge Bernstein’s extensive, well-reasoned opinion

properly disposes of the “goal of adoption” issue presented by Mother on

appeal and we discern no abuse of discretion or error of law. Therefore, we

adopt that portion of Judge Bernstein’s opinion as our own.

     Accordingly, for the reasons stated above, we affirm the July 14, 2016

order adjudicating Child dependent and setting the goal as adoption.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




                                    -8-
IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
                                            JUVENILE DlVISION

                                                            *
IN THE MATTER OF:                                           *      Trial Court No. CP-l l-DP-0000120-2016

K.S.,.                                                      *      Superior Court No. 12 J 9 WDA 2016
                                                            *                               CAMBRIA CO CYS JJJ!J DIV
                                                            *
Appeal of L. W ., Natural Parent                            *                               2016 SEP 12 AH10:2ll


       RULE OF APPELLATE PROCEDURE 1925 (a)(2)
                                                  OPINION

Bernstein, J.: L. W., the appellant herein, is the natural parent of K.S.1 who was determined to

be a dependent child on July 14, 2016, at which time she was placed into the legal and

physical custody of Cambria County Children and Youth Services and into Kinship Foster

Care. The court also ordered that the goal be set as Adoption?

         On August 11, 2016, Appellant filed a timely Notice of Appeal and Concise Statement

of Errors Complained of on Appeal (Concise Statement) pursuant to Pennsylvania Rules of

Appellate      Procedure       905(a)(2)     and     1925(n)(l).     Pa.R.A.P.       905,     1925 {West 2016).

Appellants' Concise Statement lists· three matters complained of on appeal that raise these

three allegations of error:
         I. Did the Court err by finding that Cambria County Children and Youth Services

              sustained its burden of proving that K.S. was a dependent child us her mother is

              unfit to parent the newborn child?




1 Since the subject ofthis appeal is a juvenile the primnry parties will be referred to by their in itials   10   provide
con fid entiality.
        2. Did the Court err in finding that placement and permanency                  through adoption is

             the safest and least restrictive placement for K.S.?

        3. Did the Court err by basing its decision only on past events and previous conduct

             of mother?

For the reasons discussed below the appeal should be dismissed and the Court's Order

affirmed.

                              FACTUAL BACKGROUND3
        L.W., mother. has six children in addition to K.S .. The six other children range in age

from 15 years lo five years. The father of K.S .. C.S., is also the father of five of the six of

L.W. 's other children. Cambria County Children and Youth Service (CYS) originally initiated

services to this family on April 4, 2005 through August 26, 2009 and April 26, 2011 through

November I 5, 2012. CY S indicated that throughout these times CYS had ongoing concerns

regarding lack of supervision of the children. lack of parenting skills, defiant behaviors or the

children, financial instability, and criminal issues and incarceration of father. CYS again

initiated services with six of L.W.'s children on June 21, 2013. Then, between August 2013

and August 2014, all six children were removed from the custody of L. W. and the Court

further ordered that L. W. and C.S., Father, would "never be a placement option" for the

children. On May 13, 2016 and June 17, 2016 Involuntary Termination of Parental Rights

hearings were held regarding three of the children. At the time of the dependency hearing

regarding K.S .. a decision had not been rendered as to the Involuntary Termination of parental

rights as to the other three children.


2 Although the parties and the court slated al hearing and In the order thot a goal change 10 Adoption was
recommended or appropriate, such was a mistake as there had been no previous-goal with regard to K.S. Rather,
CYS recommended, and the court ordered, that the initial goal he set as Adoption.
                                                     Page Lof''l S
           At the heating on July 11, 2016, CYS Caseworker Brittney Corson (Corson) testified

that during the extended periods that CYS had been providing services to L.W. and C.S. there

had been short periods of time when there wns improvement, but only during intensive in-

home services. After the cessation of those intensive services, the situation declined and

reverted to just as it had been before the services were provided, which included lock of

supervision, lack of parenting skills, financial instability, and incarceration of father C .S. In

the past, CY$ attempted to provide services regarding financial instability, but to no avail.

Presently, mother's financial situation has not improved and she receives only a limited

income to include cash assistance from the Welfare Department and food stamps. Mother has

stated that she is disabled and has not been employed since 2009, but does not receive any

benefits or income stemming from her disability. Although there had been reports that

mother's house was unclean in 2014, Corson testified that when she visited mother's home in

June 2016, where mother then resided alone, Corson found it to be clean.

           At the time of the hearing, father testified via video from SCI Huntingdon where he

was incarcerated as he had frequently been during CYS's involvement with the family. Father

testified that his failure to parent in the past was, in large part, based on his addiction which

he now claims to have overcome. Father was nol presently employed as he was incarcerated,

but slated that upon his scheduled · release on July 30, 2016 he planned to obtain legal

employment. Father's current incarceration was for a probation violation based upon new

drug charges which have not yet been disposed of:

           Dennis M. Kashurba (Kashurba), a licensed psychologist, testified at hearing that he

evaluated mother in 2006 and March 2008 and has been involved with her over the past eight



i   This summary is distilled from the transcripts without citation to specific portions of the record.
                                                      Page 3 of 15
years as a member of the treatment team at Independent Family Services. Kashurba testified

that although he evaluated mother almost a decade ago, he would not need to conduct another

evaluation as the evaluation combined with mother's extensive history is more than enough to

form his opinion. Kashurba ultimately opined that mother will never be able to parent her

children and that mother could never appropriately independently parent any of her children,

let alone all of her children.

           Finally, Martha Faust (Faust). Program Director and Parent Educator for Parents as

Teachers through Beginnings, testified that on May 3, 2016, mother initiated sessions with the

organization and completed four in-home sessions. These sessions occurred for one hour once

a week. Faust stated that the program aimed to teach parents about health, nutrition. safety,

discipline, other parenting behaviors, and family well-being.

           At the conclusion of testimony the court entered an order adjudicating K.S. dependent

as to both parents, and placing her in the care and custody Cambria County Children and

Youth Services. The Court further ordered that K.S. be placed in Kinship Foster Care and that

the initial goal be set as Adoption.

                                       DISCUSSION

           I.     Did the Court err in its determination that Cambria County Children and
                  Youth Services sustained its burden of proving that K.S. was A dependent
                  child as her mother is unfit to parent the newborn child'!

    Appellant's first allegation of error is that the Court erred in determining that K.S. was a

dependent child. In order to support an adjudication        or dependency,   the Juvenile Act does not

require proof that the parent has committed or condoned abuse, but merely evidence that the

child is without proper parental care. In ;·e; R.R., 455 Pa. Super. I. 686 A.2d 1316, 1317-18

( 1996).
                                             Pugc 4 of 15
        To adjudicate a child dependent due lo lack of parental care, a trial court must

determine, by clear and convincing evidence, 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 Jock 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 has been defined as testimony 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: C.R.S., 696

A.2d 840, 843 (Pa.Super. 1997) ( citation omitted). See also, In re: A. B., 63 AJd 345, 349 ( Pa.

Super.2013).

       Here the court concluded that K.S. was without proper parental care as to Mother

based on the failure of the Mother to maintain a home or income adequate to pay for utilities,

rent, food, or any other items necessary to the children. Furthermore, Mother has been

provided almost n decade of services by CYS, but has continually failed to parent her other

children or show any signs of improvement in her parenting skills. The Court found that K.S.

was without parental care from Father as Father was incarcerated at the time of the hearing

and had been frequently incarcerated during the past decade during which CYS attempted to

render services to the family. Testimony also showed that, although Father was to be released

from prison on July 30, 2016, he again had additional criminal charges pending.

       It is well settled that "[tlhe weight of the evidence is exclusively for the finder of fact

who is free to believe oil, part, or none of the evidence and to determine the credibility of the

witnesses." Commonwealth      v .. Simmons, 54 l Pa. 211. 229, 662 A.2d 621, 630 (l 995). This

principal applies equally where a judge sits as fact finder. Commonwealth       v. Davis, 491 Pa.

                                           Page 5 of !5
363. 372, 421 A.2d       l 79, 183 (1980).   When reviewing    for sufficiency or weight of the

evidence, a court may not substitute its judgment for that of the fact-finder; if the record

contains support for the verdict, it may not be disturbed. Comntonwcalth v. Mllrdick, 510 Pa.

305, 308, 507 A.2d 1212, 1213 (1986). A court may not reverse the fact finders determination

unless it is "so contrary to evidence as to shock one's sense oflustice." Simmons, ·541 Pa. nt

229, 662 A.2d at 630. Where the court is sitting as fact finder a challenge to the Weight of the

evidence requires a showing of an abuse of discretion.

         In reviewing a decision for abuse of discretion, appellate courts are bound by the facts

as found by the trial court unless they are not supported in the record. In re: A.P., 728 A.2d

375, 378 (Pa. Super. 1999) (citation omitted). Further, our Superior Court has consistently

held that

         Our scope of review, accordingly, is of the broadest possible nature. It is this
         Court's responsibility to ensure that. the record represents a comprehensive
         inquiry and that the hearing judge has applied the appropriate legal principles
         to that record. Nevertheless, we accord .great weight to the court's fact-finding
         function because the court is in the best position to observe and rule on the
         credibility of the parties and witnesses.

In r.e:.E.P·., lP .. & A.P., 841 A.2d 128, 131 (Po .. Super. 2003) (quoting In re: R.W.J., 826 A.2d

rn, l2 (Pa.   Super. 2003)). An abuse of discretion is not merely an error in judgment but exists

only when the trial 'court has rendered a judgment that is manifestly unreasonable; arbitrary,

or   capricious, or where the court has failed to apply the lnw or was motivated by partiality.

prejudice, bias, or jJ1 will. Harman v. Borah, 562 Pa. 455, 756 A.2d 11 l 6 (2000). See also,

Van Dine v. Oyuriska, 552 Pa. 122, 713 A.2d J l04 (1998)~ Rcbert.v. Rebert, 757 A.2d 981

(Pa. Super. ·2000).

         For a decision to be against the weight of the evidence it must be· shown that the

evidence relied on to reach the decision was so inherently improbable or at variance with the
                                             Page 6 of 1·5
admitted. or proven facts. or with ordinary experience,    that it resulted in a decision that is

shocking to the court's sense of justice. Thomas v. E.B. Jcmwn Lodge No. 2, 693 J\.2d 974

(Pa. Super. 1997). While an appellate court will review the evidence, determinations

pertaining to the credibility of witnesses and the weight to assign evidence arc matters within

exclusive province of the fact finder and may not be disturbed by the appellate court. See,

Weir by Gasper v. Estate of Ciao, 551 Po. 491, 556 A.2d 819 ( 1989).

       Here, the evidence supports the finding that both Mother and Father were unfit to

parent K.S. and, as a result, K.S. was without proper parental control, subsistence, or other

control necessary for her physical, mental, emotional health, or morals. First, Mother testified

that she had minimal income and, since she is disabled, she is unable to obtain employment.

Next, Corson testi lied that Mother had been receiving services for almost a decode and,

although there were periodic improvements, Mother could never sustain these improvements

after services ceased. These problems manifested themselves in that Mother's other six

children had been previously removed from her home. Corson did testify that in June 2016

she had a chance to sec Mother's housing and it was clean, but Corson attributed this to the

fact that Mother was currently living alone as opposed lo the past when Mother had custody

of her other children and lived in deplorable and dirty conditions.

       Importantly, Kashurba testified that it was his professional opinion that Mother "will

never be able to appropriately parent on rm independent basis any child." N.T. 7111/2016 pp.

15~24. Kashurba initially evaluated Mother in 2006 and then again in 2008. Although these

evaluations took place between eight and ten years ago. Kashurba has been involved in the

intervening years when he participated in her treatment team meetings with Independent

Family Services. Ultimately, Kashurba stated that a new psychological evaluation would not

                                           Page 7 of 15
prove useful as he is familiar with Mother and her history and opined based upon such

complete      knowledge.   Thus, K.S. 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. Accordingly,      there is no merit to this allegation of error.

        JI.       Did the Court err in finding that placement and permanency through
                  adoption is the safest and least restrictive placement for K.S.?

        Appellants' second allegation of error is that the Court erred in finding that placement

and permanency through adoption is the safest and least restrictive placement for K.S. and the

Appellant further asserts that no aggravated circumstance existed at that time. Pennsylvania

Rule of Juvenile Court Procedure (Pa.R.J.C.P) No. 1512 requires that, "The court shall state

on the record in open court or enter into the record through the dispositional order, findings

pursuant to Rule 1514, if the child is placed.', Pa.R.J.C.P. No. 1514 further requires that,

       Prior to entering a dispositional order removing a child from the home, the

       court shall state on the record in open court the following specific findings:

                  (1) Continuation of the child in the home would be contrary to the

                 welfare, safety, or health of the child;

                 (2) The child's placement is the least restrictive placement that meets

                 the needs of the child, supported by reasons why there is no less

                 restrictive alternative available;

                 (3) If the child hos a sibling who is subject to removal from the home,

                 whether reasonable efforts were made prior to the placement of the

                 child to place the siblings together or whether such joint placement is

                 contrary to the safety or well-being of the child or sibling;


                                              Page 8 of 15
              (4) The county agency has reasonably            satisfied   the requirements   of

              Rule 1149 regarding family finding; and

              (5)   One of the following:

                        (a) Reasonable efforts were made prior to the placement of the

                        child to prevent or eliminate the need for removal of the child

                        from the home, if the child has remained in the home pending

                        such disposition: or

                        (b) If preventive services were not offered due to the necessity

                        for emergency placement, whether such lack of services was

                        reasonable under the circumstances; or

                        (c) If the court previously determined that reasonable efforts

                        were not made to prevent the initial removal of the child from

                        the home, whether reasonable efforts are under way to make it

                        possible for the child to return home.

Pa.R.J.C.P. No. 1514. Furthermore, where the court has "previously found aggravated

circumstances to exist and that reasonable efforts to remove the child from the home or to

preserve and reunify the family are not required, a finding under paragraphs (A){5)(a) through

(c) is not necessary." Pn.R.J.C.P. No.1514(8). Thus, the court is required to state specific

findings as to each element at Pa.R.J.C.P(A)(l H4). However, at Pa.R.J.C.P.(A)(S), the court

is required to render a finding specific to only one of the three sub-sections at

Pa;R,J.C.P.(A)(5)(a)~(c). The existence of an aggravated circumstance is not required prior       lo

the court's entering of an order removing the child from the home. Ruther, if there is a

previous finding of aggravated circumstan~es) then the court need not making a finding as to

                                               Pnge 9 of 15
one   of the three      sections   at Pa.R.J.C.P.(A)(5)(a)-(c).      The   finding   of an aggravated

circumstance   essentially   replaces or docs away with the requirement         that a finding as to one

of the three sub-sections,   (a)-( c) be made.

        Examining Appellant's       matters complained of on appeal contained in the Concise

Statement in light of Pa.R.J.C.P. No. 1514, it is evident that Appellant takes issue with the

court's findings as lo Pa.R.J.C.P. No.1514(A)(l),          (2), and (5). Preliminarily, the court agrees

that no aggravated circumstance existed at the time of the disposition hearing on July 11,

2016. However, such an absence is not evidence of error as will be discussed infra. The

Superior Court of Pennsylvania has importantly noted that, "a hearing court is given broad

discretion in meeting the goal of entering a disposition 'best suited to the protection and

physical, mental, and moral welfare of the child."" In Re S.M., 418 Pa. Super. 359, 365 (1992)

(quoting In Re Lowry, 484 A.2d 383 (1984)).'The Superior Court has also held that, "A child

who has been adjudicated dependent may not be separated from its parents unless the

evidence presented establishes that such a separation is 'clearly necessary.'              Furthermore,

'clear necessity for removal is not shown until the hearing court determines that alternative

services that would enable the child to remain with (his or her) family are unfcasible.?' in re

K .. B., supra, 276 Pa.Super. 380, 393, 419 A.2d 508, 515 ( 1980).
        First. the court must find that "Continuation             of the child in the home would be

contrary to the welfare. safety, or health of the child." Pa.R.J.C.P. No. 151S(A)(l). Here,

substantial evidence exists supporting the court's finding. Specifically, Corson testified that

Mother, with the benefit of almost ten years of services, has never been able to display

adequate parenting skills. For example, on December 12. 2013 another of Mother's children

was placed after a child in Mother's care was injured in the home due to a lack of supervision.

                                                 Page 10 of 15
 Furthermore,   Kashurba   testified that Mother "will never be able to parent on an independent

basis any child.'' N.T. 7/11/16 pp. 15·24.

        Testimony from Corson anti a review of the records submitted by CYS on July 7, 2016

also indicate that Mother has struggled to financially support her children in the post,

struggles to support herself, and would struggle to support K.S. in her home. Corson testified

that Mother receives cash assistance from the Department of Welfare and Section 8 housing.

N.T. 7/11/16 pp.o- 7. Although Mother told Corson that she was up to date on all of her bills,

Corson had the chance to examine such bills on June 17, 2016 and stated that Mother did owe

back payments on some bills. Id. at 8-15. Corson also stated that her most recent visit to

mother's housing revealed a relatively clean home, but this was a stark contrast lo the

"deplorable" conditions that Corson had witnessed in the past. N.T. 7/11116 pp. 4-12. Corson

attributed this recent cleanliness to the fact that Mother did not have any children living with

her and recalled that in 2014 when the home was "very dirty and cluttered" the children had

been living with Mother.   ta. at 6-20.
        Next, at the time of the hearing on July 1 I, Father was incarcerated as a result of a

probation violation resulting from new drug-related charges, Records submitted by CYS

indicate that Father had been incarcerated for the duration of CYS's involvement with the

family, which began in 2005. Father was released from prison on parole on August 15, 2015,

but was again arrested just six months later when new charges of drug possession and drug

possession with the intent to deliver, in addition lo other charges, were tiled. Although Father

did testify that his incarcerations were a result of a drug addiction that he has now overcome.

his extended criminal history and past incarceration, in addition to his most recent arrest,

show that Father has not parented his children in the past and, as a result of his current

                                           Page 11 or 15
incarceration,   would not be able to parent K.S. Thus, due to Mother's              lack of parenting skills.

luck of financial stability and responsibility.           and Father's   lengthy and ongoing    incarceration,

placement    of K.S. iJJ the home with Mother would clearly be contrary               to the child's welfare.

safety, and health.

         Next, the court satisfied        Pa.R.J.C.P.      No. I 5 I 4(A)(2)   by placing K.S. in the least

restrictive placement and there were no less restrictive alternatives available. Specifically. the

court ordered that "The Child is to be placed. by the Agency, in Kinship Fosler Care. The

Child's placement is the least restrictive placement that meets the needs of the Child and there

is no less f restrictive alternative]."     ORDER OF ADJUDICATION t\ND DISPOSITION DATED JULY

14, 2016. As discussed supra, the court deemed that both Mother and Father arc unlit to

parent K.S. despite having been offered all resources and services available through CYS.

Thus. placement in Kinship Foster Cure is clearly the least restrictive alternative as the parents

arc no longer an option for placement.

        finally, pursuant to P.A. R.J.C .P. No. 141 S(A)(S)(b) the court found that.

            To allow this child    10   remain in the home would be contrary to the child's

            welfare, and that Preventative services were not offered due to the necessity

            for emergency placement. The lock of services was reasonable under the

            circumstances.    This level of effort         WHS   reasonable due to the emergency

            nature of the situation, satetv considerations,              and circumstances     of the
                                                 '

            family.

0RDF.R OF ADJUDICATION          AND DISPOSITION DATEr>               Jut.v 14, 20!6. The lack of

preventative services offered was reasonable here as Mother and Father had been

availed of such services throughout the course of a ten-year period. No signi ficant or

                                                     Page 12 of 15
 lasting improvement resulted. Additionally, Kashurba, who is familiar with mother

 and her situation, unequivocally stated that Mother would never be able toparent any

 child, and. since Father was still incarcerated, rendering services to him would be of

 no effect since he could not parent K.S. from prison. Emergency placement was

 required immediately after K.S. left the hospital as it was clear that allowing the child

. to go home with Mother would be contrary to the child's health, safety, and welfare

 even if services were initiated as to Mother in regard to K.S. As such, the court

 satisfied Pa.R.J.C.P.   No. 1514(A)(5)(b) by finding that emergency placement was

 necessary and preventative services were not rendered as a result.

         Accordingly, the court satisfied all statutory requirements as to dispositional·

 findings prior to issuing its order removing K -. S. from the home, placing her in

 Kinship Foster Care, and setting the initial goal as Adoption. Any services that would

 have allowed K.S. to remain in the home were unfeasible and would have been

 ineffective, making the removal clearly necessary. Thus, there is no merit to this

 allegation of error.
         Ill,    Did the Court err by basing its declsiou ouly on past events and previous
                 conduct of mother?

         Appellant's third and final allegation or error is that the court erred by only

 considering past events and conduct. Furthermore, Appellant alleges that CYS did not review

 the home and that the court failed to consider Mother's ongoing parental services, First, in

 moking a determination as to whether a child is dependent, the "court must ascertain not only

 what sort of parental care the child received in the past, but also what sort of parental care the

 child will receive if custody is given to the parents." /11 Re Ryan Michael C., 294 Pa, Super

 417, 420 (1982). Ultimately. the court must conclude by clear and convincing evidence "that
                                            Page 13 of15
proper parental care is not immediately           available"    to adjudicate     the child dependent. Id. The

proper course for a court to take is to examine past events and conduct and then. bused on

these and other pieces of evidence,            determine    whether      proper parental care is immediately

available to the child.

          llere, the court heard testimony from Corson that Mother's                    house was clean in June

2016. one month before the hearing, but that in the past when children                     lived with Mother the

house was in a deplorable       condition. N.T. 7/11/2016            pp. 6-20. Corson stated that she believed

that Mother was able to keep her house clean in June 2016 because no children Jived with

mother. However,       Mother was not able to care for children and keep a clean house al the same

time. Corson stated that Mother was most likely overwhelmed                     by having such responsibilities

al the   same time. Although       Appellant alleges that the court did not consider the slate of the

home at the July          I I, 2016 hearing,     the record proves         otherwise.     Even more, the court

considered the most recent state of the house in addition to Mother's                   ability over time to keep

a clean and habitable house.

         Next, the court heard testimony          from Faust who stated that she rendered services to

Mother through      the Parents     as Teachers      program.        Id. at 8-12. The court considered       this

testimony.   especially     that Faust met with Mother           for one hour once a week and had only

conducted    lour sessions     at the time of the hearing.           Id. at 2 L • I. Though Mother did initiate

these non-stole services.      the record also reflects that Mother was receiving services through

CYS for almost o decode to no avail.

          Weighing the evidence       regarding Mother's ability to keep a clean and habitable home

(the state of her home as observed by Corson in June 2016 and the deplorable                      conditions that

existed previously),      the services that Mother was currently            receiving    and had received in the


                                                   Pagc l d of l S
past, and her inability to parent over on extended period of time, together with the testimony

of Corson and Kashurba who stated that Mother would never          be able to parent any child, this
court found that clear and convincing evidence proves that if custody of K.S. was given to

Mother, proper parental cure would not be immediately available. Thus, the court did not err

in its consideration of the evidence of past events and conduct.

       As there is no merit to any altcgntton of error and for the reasons discussed herein, the

appeal should be dismissed and the Court's Order of July 11, 2016, nffinncd,




                                                       RESPECTFULLY SUBMJTTED,




September 9, 2016




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