J-S51017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: K.F., MINOR       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: K.A., MOTHER               :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 816 EDA 2018

              Appeal from the Order Entered February 9, 2018
  In the Court of Common Pleas of Philadelphia County Domestic Relations
                    at No(s): CP-51-DP-0000243-2018

 IN THE INTEREST OF: K.F., A MINOR :       IN THE SUPERIOR COURT OF
                                   :            PENNSYLVANIA
                                   :
 APPEAL OF: K.A., MOTHER           :
                                   :
                                   :
                                   :
                                   :
                                   :       No. 821 EDA 2018

                  Appeal from the Order February 9, 2018
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-DP-0000244-2018,
                         FID: 51-FN-316479-2009


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                  FILED SEPTEMBER 26, 2018

     K.A. (Mother) appeals from the order entered February 9, 2018, which

discharged the dependency petition filed by the Philadelphia Department of

Human Services (DHS), removed Khy.F. (born December 2005) and Kha.F.

(born August 2007) (collectively, Children) from her custody, and awarded

custody to B.F. (Father). We affirm.
J-S51017-18



       Prior to the commencement of the instant matter, Mother and Father

exercised a shared custody arrangement by court order of April 3, 2017. See

N.T., 2/9/18, at 12-13. Father, or paternal grandmother, picked Children up

from their after school program, had custody of Children until no later than

8:00 p.m., and dropped them off at Mother’s house, where they stayed until

it was time for school the next day. Id. at 12. On the weekends, Father had

custody of Children until Sunday before 8:00 p.m. Id.

       DHS became involved with the family on December 13, 2017, after

receiving a General Protective Services (GPS) report.1 Id. at 1. Children went

to school and stated they had been beaten by Mother that morning, that they

did not know why they had been hit, and that they were afraid to return to

the home with Mother. Id. at 4-5. After meeting with DHS, Children stated

that Mother was mentally and physically abusive, took out her anger on them,

and had abused Children’s older siblings when they were young. Id. Children

further stated that this behavior has been going on since they were young,

with a frequency of about five times per month, and that they are not sure

why they are being disciplined. Id. at 11.       Moreover, when asked whether

they had seen drugs or alcohol, Children stated that Mother “uses a pipe” and




____________________________________________


1 We note, initially, that many of the details in the trial court’s opinion are
taken wholesale from DHS’ petition for adjudication of dependency. This
petition was never stipulated to by Mother and never entered into evidence.
Accordingly, we base our procedural history solely upon the evidence
introduced at the hearing through testimony.

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has a lot of lighters. Id. at 10. There were no marks or bruises on Children

at that time. Id.

        However, upon review, DHS determined that the GPS report was

founded, but that the Child Protective Services (CPS) report that it received

at the same time was unfounded. Id. at 6-7. Children were removed from

the home and placed with paternal grandmother with a safety plan. Id. at 5-

6.

        Sean Callan, the DHS social worker assigned to the case, interviewed

Children. At first, he was unsure whether their accusations were credible. Id.

at 8.    He changed his mind after receiving a letter from Mary Theresa

Fitzgerald, a behavioral therapist at Turning Points for Children, describing an

encounter between Mother and Children, which made her uncomfortable. Id.

at 8-9. The therapist likened Children’s behavior to someone suffering from

post-traumatic stress disorder. Id. at 9. Children stated they wanted to be

in the custody of Father. Id. at 13. Mr. Callan recommended that Children

be released to Father’s custody or care, noting that his home was appropriate.

Id.

        On February 9, 2018, the court held a hearing on the petition. Mr. Callan

testified on behalf of DHS. Mother, represented by counsel, testified on her

own behalf.     Children did not appear at the hearing and did not testify,




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although they were represented by James Martin, Esquire.2           Mr. Callan

testified to the facts as discussed above and additionally noted that Father

had appropriate housing, his wife had been cleared, and recommended that

custody be confirmed with Father. See id. at 2-14. Father testified he was

ready, willing, and able to take custody of Children. Id. at 28.

       Mother testified that she had never hit her children and that she treats

them very well. Id. at 22. Mother also stated that she encountered Children’s

therapist with Children the week earlier, asked Children in front of the

therapist whether “mommy ever beat you” and that she recorded Children

saying “no.” Id. at 22-23. Mother denied using drugs. Id. at 25. On cross-

examination, DHS introduced testimony of Mother’s prior criminal history. Id.

at 25-28.

       At the conclusion of the hearing, the court stated that it was concerned

with Ms. Fitzgerald’s assessment, Mother’s behavior of recording Children, her

criminal past, and Children’s statements that they are afraid to be with

Mother. Id. at 31-32. The court added that there was no dependency issue

and that Children should be returned to Father. Id. at 32.


____________________________________________


2 The order appointing Attorney Martin indicates that he was appointed to
serve in dual roles as a guardian ad litem, representing Children’s best
interests, and as legal counsel, representing their preferences. See Order,
2/5/18, at 1. As there appears to be no conflict between Children’s best and
legal interests, there is no issue with Attorney Martin’s dual roles. See In re
T.S., --- A.3d ----, at *10 (Pa. filed Aug. 22, 2018); see also In re Adoption
of L.B.M., 161 A.3d 172 (Pa. 2017).


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       That same day, the trial court entered an order concluding that Children

were not dependent and dismissing the petition for dependency. See Order,

2/9/18, at 1. In the order, the court found that there was clear and convincing

evidence to substantiate the allegations against Mother. Id. Moreover, the

court found that to allow Children to remain in Mother’s home would be

contrary to Children’s welfare, and that it would be in Children’s best interest

to be removed from Mother’s home.              Id. at 1-2.   The order then granted

Father physical and legal custody of Children. Id. at 2.

       On March 8, 2018, Mother contemporaneously filed a timely notice of

appeal and a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).3

       On appeal, Mother raises the following issue for our review:

       Whether [t]he trial court erred and/or abused its discretion by
       discharging the dependency petition and awarding custody to
       [Father] where [Mother] had primary custody prior to the filing of
       the dependency petition and did not believe that there were any
       conditions which should have caused the court to transfer custody
       of the children[.]

See Mother’s Brief at 5.

       Although Mother claims that the trial court had no legal authority to

transfer custody from Mother to Father because it made no finding of

dependency, she acknowledges in her brief that Pennsylvania Supreme Court

precedent provides the trial court with this authority. Id. at 11-12 (citing In
____________________________________________


3 Mother initially pro se filed her notice and statement. On April 1, 2018,
Mother’s counsel filed a motion to supplement her statement, which this Court
granted on April 13, 2018. See Order, 4/13/18, at 1.

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re M.L., 757 A.2d 849, 849 (Pa. 2000) (holding that a child whose non-

custodial parent is ready, willing, and able to provide adequate care to the

child cannot be found dependent)). In spite of this precedent, Mother requests

that we reexamine this Pennsylvania Supreme Court decision based on

“changes to the law over the years.” Id. Mother further claims that she is a

competent parent who is able to care for Children. Id. at 10. She argues that

there was no corroboration of the allegations that she hit children, such as

bruises or markings.      Id.     Mother maintains that she and Father are

undergoing a custody dispute and that she believes Father persuaded Children

to live with him full time. Id.

      With regard to dependency cases,

      [t]he standard of review which this Court employs in cases of
      dependency is broad. However, the scope of review is limited in
      a fundamental manner by our inability to nullify the fact-finding of
      the lower court. We accord great weight to this function of the
      hearing judge because he is in the position to observe and rule
      upon the credibility of the witnesses and the parties who appear
      before him. Relying upon his unique posture, we will not overrule
      his findings if they are supported by competent evidence.

In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). Thus, we employ an

abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

      A dependent child is 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,

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     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;

     (2) has been placed for care or adoption in violation of law;

     (3) has been abandoned by his parents, guardian, or other
     custodian;

     (4) is without a parent, guardian, or legal custodian;

     (5) while subject to compulsory school attendance is habitually
     and without justification truant from school;

     (6) has committed a specific act or acts of habitual disobedience
     of the reasonable and lawful commands of his parent, guardian or
     other custodian and who is ungovernable and found to be in need
     of care, treatment or supervision;

     (7) has committed a delinquent act or crime, other than a
     summary offense, while under the age of ten years;

     (8) has been formerly adjudicated dependent, and is under the
     jurisdiction of the court, subject to its conditions or placements
     and who commits an act which is defined as ungovernable in
     paragraph (6);

     (9) has been referred pursuant to section 6323 (relating to
     informal adjustment), and who commits an act which is defined
     as ungovernable in paragraph (6); or

     (10) is born to a parent whose parental rights with regard to
     another child have been involuntarily terminated under 23 Pa.C.S.
     § 2511 (relating to grounds for involuntary termination) within
     three years immediately preceding the date of birth of the child
     and conduct of the parent poses a risk to the health, safety or
     welfare of the child.

See In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010); see also 42 Pa.C.S. §

6302. Here, the relevant concerns are whether a child is presently without




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such care or control, and whether such care or control are immediately

available. J.C., 5 A.3d at 289.

      In M.L., our Supreme Court held that:

      [t]he plain language of the statutory definition of a dependent
      child compels the conclusion that a child is not dependent if the
      child has a parent who is willing and able to provide proper care
      to the child. When a court adjudges a child dependent, that court
      then possesses the authority to place the child in the custody of a
      relative or a public or private agency. Where a non-custodial
      parent is available and willing to provide care to the child, such
      power in the hands of the court is an unwarranted intrusion into
      the family. Only where a child is truly lacking a parent, guardian
      or legal custodian who can provide adequate care should we allow
      our courts to exercise such authority. Accordingly, we hold 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.

M.L., 757 A.2d at 851 (citation omitted and emphasis added); accord In

Interest of J.M., 166 A.3d 408, 415 (Pa. Super. 2017).

      Here, the trial court concluded that Children were not safe in Mother’s

care based upon the GPS report, the testimony of Mr. Callan, the assessment

of Ms. Fitzgerald, and Mother’s own testimony. See N.T., 2/9/18, at 7-24,

31. In its findings, the court was concerned that Children were afraid to return

to Mother’s home, that Mother recorded Children in an attempt to prove that

she did not hit Children, and that Mother had a criminal past. See id. at 4-5,

22-23, 25-28. The court was also concerned with Ms. Fitzgerald’s assessment

regarding Mother’s interaction with Children. See id. 8-9. Ultimately, the

trial court determined that Father was ready, willing, and able to take custody

of Children. See id. at 13-14, 28, 32.


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      Accordingly, we conclude that the trial court’s findings are supported by

competent evidence in the record and should not be disturbed. See N.A., 116

A.3d at 1148. Further, we find that the trial court did not abuse its discretion

in its determination that Children were not dependent as Father was ready,

willing, and able to care for them. See M.L., 757 A.2d at 851; see also See

Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480

(Pa. 2011) (noting that “the Superior Court must follow [the Supreme] Court’s

mandates, and it generally lacks the authority to determine that [the

Supreme] Court’s decisions are no longer controlling”).

      Order affirmed.

      Judge Dubow did not participate in the consideration or decision of this

case.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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