J-S12015-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: F.W., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

APPEAL OF: F.W., FATHER

                          Appellant                     No. 2259 EDA 2014


                 Appeal from the Order Entered June 30, 2014
             In the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-DP-0001439-2014
                            CP-51-FN-465690-2009


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J:                                 FILED APRIL 14, 2015

       F.W. (“Father”) appeals from the June 30, 2014 order of adjudication

and disposition wherein the juvenile court adjudicated his son, F.W.,1

dependent and placed the child in foster care. After a thorough review of

the certified record and applicable law, we affirm.

       F.W. was born during September 2012.           Prior to spring 2014, F.W.

resided with his birth mother, J.S. (“Mother”), and his two half-brothers.

The Philadelphia County Department of Human Services (“DHS”) has had

extensive interaction with Mother and her children. Between April 2010 and

November 2011, the agency issued three substantiated general protective


1
 Since father and son share identical initials, hereinafter, our references to
F.W. relate to the child.
*
    Former Justice specially assigned to the Superior Court.
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services (“GPS”) reports involving F.W.’s half-siblings. However, none of the

previous GPS reports resulted in any adjudications of dependency.

     During April of 2014, Father obtained custody of F.W. without DHS’s

knowledge.    Shortly thereafter, DHS reinitiated its involvement with the

family after Mother was arrested for recklessly endangering a child and for

recklessly endangering another person.      Thereafter, the agency issued

another GPS report, and on June 19, 2014, the trial court adjudicated F.W.’s

two half-siblings dependent. The juvenile court continued the dependency

case relating to F.W. and directed DHS to obtain an order of protective

custody (“OPC”).   Soon after interceding in this matter, DHS learned that

F.W. was in Father’s care.   Indeed, Yolanda Shields, the DHS caseworker

assigned to the family, testified that she observed Father and F.W. together

in the 2100 block of North Percy Street in Philadelphia. She explained that

DHS declined to seek an OPC for F.W. at that juncture since Father’s

involvement in his son’s care was not alarming and the DHS investigation of

Father’s living arrangement was pending.

     On June 23, 2014, Father contacted DHS and confirmed that he had

custody of F.W. since April 2014.    Father provided DHS two Philadelphia

addresses: (1) 2131 North Percy Street; and (2) 1518 Myrtlewood Street, a

residence that is owned by his sister, C.W. (“Paternal Aunt”).      While the

parties dispute how often Father stayed at the Myrtlewood Street residence

during the relevant period, it is undisputed that F.W. lived in that home

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since April 2014.   DHS examined Paternal Aunt’s home and reviewed her

extensive criminal history.     The agency determined that the physical

condition of the residence was acceptable.      It had utilities, home safety

devices, food, and a toddler bed for F.W.      Additionally, DHS found that,

although Paternal Aunt had an extensive criminal record, she did not commit

any offenses that would preclude her from being considered as a placement

option. However, since the agency was unable either to endorse Father at

that point or to document his full-time habitation at Paternal Aunt’s home, it

placed F.W. into foster care.

      During the ensuing adjudicatory hearing, DHS presented testimony

from Ms. Shields and called Father to testify as if on cross-examination.

Father also testified on his own behalf. As it relates to the issues on appeal,

DHS presented evidence that Father, inter alia, made questionable parenting

decisions regarding F.W.’s welfare, lacked stable employment, failed to

reside with F.W. during the entire week, and had relatively recent

convictions for possession of marijuana and harassment. Significantly, the

2013 harassment conviction stemmed from an incident involving Mother.

Additionally, Father   was convicted of indecent assault during 1992.

Depending upon the age of that victim, the juvenile court could have found

aggravated circumstances in this case pursuant to 42 Pa.C.S. § 6302(3)(ii).

However, since no evidence was presented to indicate the age of the victim,

the juvenile court did not make any findings regarding aggravated

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circumstances. See N.T., 6/30/14, at 60 (“The court will take judicial notice

[of the offenses] for whatever it’s worth”). At the close of the hearing, the

juvenile court adjudicated F.W. dependent as the term is defined in the

Juvenile Act, 42 Pa.C.S.§ 6302(1), relating to children who lack proper care

and control.

     The goal of the initial permanent placement plan was “return to parent

or guardian.”    Order of Adjudication and Disposition, 3/30/14, at 1.

However, since questions existed concerning whether Father lived with

Paternal Aunt seven days per week, the juvenile court continued F.W.’s

placement in foster care and directed DHS to continue to investigate

potential kinship placement resources. The court granted Father supervised

visitation with his son twice per week and referred Father to the Clinical

Evaluation Unit for an immediate drug screen, a dual diagnosis assessment,

and monitoring. Additionally, the juvenile court directed DHS to refer Father

to a domestic violence program, parenting services, and housing assistance.

     Father filed a timely notice of appeal and complied with Pa.R.A.P.

1925(a)(2)(i)   by   concomitantly   filing   a   concise   statement   of   errors

complained of on appeal. Father presents one issue for review.

     Did the Court err in adjudicating the child dependent and
     removing the child from the Father's care where the Department
     of Human Services failed to prove by clear and convincing
     evidence that the child was a dependent child under 42 Pa.C.S.A
     §6302, and failed to prove by clear and convincing evidence that
     the Department made reasonable efforts to prevent the need for
     placement of the child?

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Father’s brief at 3.2

      The following principles are pertinent.   In In re A.B., 63 A.3d 345,

349 (Pa.Super. 2013) (quoting In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)),

we explained,

         Our Supreme Court 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 order to adjudicate F.W. dependent, DHS was required to prove by

clear and convincing evidence that F.W. “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.” 42

Pa.C.S. § 6302.         We have defined clear and convincing evidence 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 A.B., supra at 349 (quoting In re C.R.S.,

696 A.2d 840, 843 (Pa.Super. 1997)).




2
  The DHS brief was due on January 5, 2015. As of the date of this writing,
the agency failed to file a responsive brief.

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      The first aspect of Father’s argument challenges the juvenile court’s

finding that F.W. was a dependent child.       Father asserts that, under the

totality of the circumstances, the adjudication of dependency was not

warranted.    As the certified record supports the court’s determination, we

disagree.

      In sum, the juvenile court took a prospective view of the events and

circumstances that arose during F.W.’s brief time in Father’s custody and

deduced that Father is unable to provide F.W. with the proper parental care

necessary to maintain the child’s physical, mental, and emotional health.

The juvenile court stressed that Father’s living arrangement is uncertain and

his employment is unstable. Additionally, the court highlighted that Father

declined all responsibility for F.W.’s medical care prior to April 2014, and in

the short time that Father had custody of his then-two-year-old-son, he

failed to update his medical and dental care, ensure that his immunizations

were current, or utilize the child’s medical assistance benefits.

      Father testified that he attempted to take F.W. to the doctor but was

rebuffed because he lacked insurance.       While Father’s brief states that he

was in the process of switching F.W.’s coverage when DHS interceded, the

record belies this contention.   Indeed, as the trial court points out, rather

than addressing the administrative impediment to F.W.’s medical coverage,

i.e., the fact that the child was listed under Mother’s medical assistance,

Father simply declined to return the child to his doctor or utilize a free health

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J-S12015-15



clinic.     Father’s testimony during the hearing was replete with purported

clarifications, explanations, and justifications regarding his criminal record,

employment status, living arrangement, and parental care.           However, the

juvenile court repeatedly made credibility determinations against Father and

in favor of DHS’s witness, Ms. Shields.

          The court explained,

                 Father assumed Child's care on April 2014, when mother
          was arrested (N.T. 6/30/14, pgs. 39, 41, 43, 51). Child remained
          with Father until June 23rd, whereby Child was removed by
          order of court. Throughout the period of time Child was with
          Father, he did not follow up to ensure the Child had a medical
          exam and obtained his immunizations (N.T. 6/30/14, pgs. 39,
          48-49, 52).      Despite the fact that Father was the primary
          caregiver for the Child, Father expressly evaded his parental
          obligation stating that Child's health was mother's responsibility
          (N.T. 6/30/14, pgs. 48-49, 52). The record also reflects certain
          concerns with Father's housing. Father testified that he currently
          lives with his sister seven days a week at 1518 Myrtlewood
          Street, Philadelphia, PA (N.T. 6/30/14, pgs. 35-36, 49-52).
          However, his sister stated to DHS that Father lives with her only
          three days a week, contradicting Father's testimony (N.T.
          6/30/14, pgs. 38, 40). His residence the other four days is
          unknown (N.T. 6/30/14, pg. 38). Reaching the Child to provide
          services would be difficult as well as unsafe without knowing
          Father's whereabouts (N.T. 6/30/14, pg. 38). In adjudicating
          Child dependent, the trial court also considered Father's
          economic instability. Father testified that he works odds jobs,
          such as painting and construction (N.T. 6/30/14, pg. 36).
          Initially, Father specified he worked forty hours during the last
          thirty days; however, in further testimony, Father stated that in
          a period of thirty days he only worked thirty hours (N.T.
          6/30/14, pgs. 56-58). Father's ability to properly support his
          Child is highly concerning since now he has become the potential
          primary caregiver for the Child. Up until mother's incarceration
          in April 2014, mother was the primary caregiver.




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            Additionally, the court considered Father's criminal history.
      He was found guilty of possession of marijuana in 2011 (N.T.
      6/30/14, pgs. 48, 53-54). Father alluded that he was holding the
      marijuana for a friend, but has admitted usage in the past (N.T.
      6/30/14, pgs. 53-55). In November 2013, Father was convicted
      for harassing mother (N.T. 6/30/14, pgs. 47-48). Furthermore,
      Father has an indecent assault conviction from 1992 (N.T.
      6/30/14, pgs. 32-35). Additionally, if you take Father's
      testimony as being truthful as to where he lives, Father has
      made a judgment to live with a paternal aunt with a long
      criminal history (N.T. 6/30/14, pg. 36). Exposing the Child to an
      environment where adults have extensive criminal records is not
      proper care geared to the particularized needs of the Child[.]

            Taking all the testimony of this case into consideration,
      including the short period of time Father was the primary
      caretaker for the Child, the trial court decided there is clear and
      convincing evidence that Father is unable to provide proper
      parental care for the physical, mental and emotional health of
      his two-year old Child without risking his health, safety and
      welfare. DHS witness was found to be credible. Father was found
      not to be credible. The trial court ascertained 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
      Father. In [I]interest of K.B., 276 Pa.Super, 380,419 A.2d 508
      (1980).

Trial Court Opinion, 10/21/14, at 3-4.

      Father’s substantive argument assails the juvenile court for failing to

consider evidence and testimony that was advantageous to his position. For

instance, Father points to his testimony that he, in fact, lived with Paternal

Aunt fulltime since he took custody of F.W. during April of 2014, his

justification for failing to confirm that F.W.’s immunizations were up to date,

and his testimony that he does not use marijuana despite his guilty plea to

possession of marijuana during 2011. As it relates to that offense, Father



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stated that he was holding the drug for a “friend” and had not smoked

marijuana in five to ten years. N.T., 6/30/14, at 53-54. Although Father

noted his willingness to submit a urine sample immediately after the

adjudicatory hearing, he hedged, “I do not know if I will be able to

[urinate.]” See N.T, 6/30/14, at 63. The certified record does not indicate

whether Father was able to produce a urine sample or reveal the results of

any ensuing drug screens.

      The cruces of Father’s arguments essentially request that we ignore

our standard of review, reweigh the evidence, and make a determination in

his favor. We must decline. See In Re A.B, supra at 349 (“The 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”). Moreover, the certified record sustains the trial

court’s determination.

      During the adjudicatory hearing, Ms. Shields testified that DHS was

primarily   concerned    with   Father’s   unusual      living   arrangement   and

highlighted the agency’s unease about returning F.W. to Father under the

current circumstances. N.T, 6/30/14, at 38. As noted, Father provided DHS

two different Philadelphia addresses.      Id. at 31.    Approximately one week

prior to the hearing, Paternal Aunt informed Ms. Shields that Father resided

at her home on Myrtlewood Street only three days per week and that she did

not know where Father lived the remainder of the week. Id. at 38, 40. That

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information conflicted with Father’s April 2014 statement to Ms. Shields that

he had moved from the Perry Street residence. Id. at 44. Furthermore, as

of the date of the hearing, Father still had not documented his actual living

arrangement. Id. at 38. Thus, Ms. Shields’s concerns persisited.

      In addition, Ms. Shields observed that F.W.’s immunizations were not

current and that he had not been examined by a doctor in one year. Id. at

39, 40-41.    Moreover, Ms. Shields outlined Father’s and Paternal Aunt’s

criminal records. Specifically, she testified, “I performed a clearance on the

paternal aunt.   She had no prohibited offenses.      But she did have a long

criminal history. But it was not considered a prohibited offense.” Id. at 32.

As it relates to Father, Ms. Shields stated, “Father had a prohibited

offense.[3] A conviction. There were several of them actually.” Id. Hence,

the record supports the court’s assessment of the respective criminal

records.

      Father also asserts that his financial uncertainty was not a proper

ground to adjudicate F.W. dependent.          We agree with this component of

Father’s argument.     Presuming that a child receives basic subsistence, a

parent’s economic status alone is an improper basis for an adjudication of

dependency. See In re R.R., 686 A.2d 1316, 1318 n.1 (Pa.Super. 1996).

Instantly, the trial court referred to Father’s “economic instability” as “highly


3
  As noted in the body of this writing, the juvenile court did not treat
Father’s 1992 indecent assault conviction as a prohibited offense.

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concerning” in light of the fact that Father had never previously acted as

F.W.’s primary caregiver.   See Trial Court Opinion, 10/21/14, at 4. Thus,

absent some evidence that F.W. lacked basic subsistence, the juvenile court

erred in relying upon financial considerations as a reason to adjudicate F.W.

dependent.4   Accordingly, we reject that aspect of the court’s rationale as

contrary to law.    Instantly, however, in addition to referencing Father’s

economic status, the juvenile court also invoked Father’s poor decision

making, uncertain living arrangement, and his and Paternal Aunt’s criminal

histories. As the certified record sustains the remaining, valid grounds for

the adjudication, we will not disturb the order adjudicating F.W. dependent.

      On appeal, Father challenges as hearsay Ms. Shields’s testimony

regarding Paternal Aunt’s statement that Father lived with her only three

days a week. However, since Father failed to level a hearsay objection when

the evidence was proffered, the issue regarding the supposed hearsay

testimony is waived.    Moreover, to the extent that Father challenged the

reliability of Ms. Shields’s iteration during his summation of evidence, the

trial court made an express credibility determination in the witness’s favor.

Given that the record sustains the court’s credibility determination, no relief

is due.

4
  While Father’s bleak financial outlook is an improper ground to adjudicate
F.W. dependent, Father’s sporadic employment remains a relevant and
accurate reflection of his general instability. Thus, to the extent that the
court considered Father’s employment history for this purpose, the reference
is benign.

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      In the second component of his argument, Father argues that DHS

failed to make reasonable efforts to prevent F.W.’s placement. Additionally,

Father disagrees with the juvenile court’s conclusion that his and Paternal

Aunt’s convictions affected his ability to parent F.W. because the convictions

did not preclude their involvement per se.          Again, his arguments are

unpersuasive. Our review of this issue is guided by the following principles:

      In regard to when a child should be removed from parental
      custody, we have stated:

         The law is clear that a child should be removed from her
         parent's custody and placed in the custody of a state
         agency only upon a showing that removal is clearly
         necessary for the child's well-being. In addition, this court
         had held that clear necessity for removal is not shown
         until the hearing court determines that alternative
         services that would enable the child to remain with her
         family are unfeasible.

      In re K.B., 276 Pa.Super. 380, 419 A.2d 508, 515 (1980)
      (citations omitted). In addition, this Court has stated: “[I]t is not
      for this [C]ourt, but for the trial court as fact finder, to
      determine whether [a child's] removal from her family was
      clearly necessary.” In re S.S., 438 Pa.Super. 62, 651 A.2d 174,
      177 (1994).

In re A.B., supra at 349-350.

      Father’s argument necessarily overlooks Ms. Shields’s testimony

regarding the steps the agency took to determine whether it would be

feasible for F.W to reside with Father at Paternal Aunt’s home. As the trial

court outlined in its Rule 1925(a) opinion, Ms. Shields testified that DHS

investigated the feasibility of Paternal Aunt, who was the only relative that



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Father presented, and performed an assessment of her home.                   N.T.,

6/30/14, at 31-32, 37, 45. The agency found that Paternal Aunt’s home was

appropriate for F.W. but determined that it could not return F.W. to Father

because the aunt had informed the agency that Father did not stay at the

residence fulltime. Id. at 38, 40. Moreover, the location, and consequently

the feasibility, of Father’s alternate accommodations were unknown as of the

date of the dependency proceedings.             Id. at 38.   Thus, the trial court

concluded,

      Based on the information provided by Father, DHS made
      reasonable efforts to prevent Child’s placement, and when the
      Child was placed[,] it was in the less restrictive environment
      available. The trial court notes that although Father only
      indicated paternal aunt as a possible resource to DHS, Father
      was well aware that there were other relatives in Philadelphia
      that he chose not to disclose to DHS based on his testimony at
      the adjudicatory hearing (N.T. 6/30/14, pgs. 64-65).

Trial Court Opinion, 10/21/14, at 6.

      Father’s arguments simply rehash his challenges to the weight of the

evidence supporting the juvenile court’s determination regarding the

uncertainty of Father’s living arrangements and the effect of his and Paternal

Aunt’s criminal records. However, for the reasons we expressed supra, we

are not vested with the authority to reweigh the evidence in order to make a

determination in Father’s favor. See In Re A.B, supra at 350 (“It is not for

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

child's removal from her family was clearly necessary.”).



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      All told, the facts regarding Father’s care of F.W. present a close case.

While we find that the certified record sustains the juvenile court’s factual

conclusions and credibility determinations, it is not self-evident that a

different fact finder considering the identical factual scenario would reach the

same conclusions as the juvenile court herein. However, our responsibility is

not to review the facts anew. The juvenile court was in a superior position

to assess the witnesses’ credibility and evaluate the conflicting evidence.

      Ultimately, the court determined that Father did not dwell at Paternal

Aunt’s home more than three days per week and that his and Paternal

Aunt’s criminal records were sufficiently distressing to raise a safety concern

even though neither record warranted automatic disqualification.           That

situation, in combination with the safety concerns stemming from Father’s

commitment to F.W.’s welfare and his potential drug use made F.W.’s

placement in foster care necessary to enforce the child’s wellbeing.

      Finally, we observe that neither the technical effects of the juvenile

court’s adjudication of dependency and placement of F.W. in foster care nor

their practical ramifications are tantamount to terminating Father’s parental

rights. Unlike an involuntary termination of parental rights, orders entered

under the Juvenile Act are subject to periodic review and modification. See

In Interest of R.T., 592 A.2d 55, 61 (Pa.Super. 1991) (quotation omitted)

(“[I]n the interest of safeguarding the permanent welfare of the child,

decrees concerning children are temporary and subject to modification to

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meet changing conditions.”).    Here, the juvenile court ordered DHS to

provide Father biweekly visitation with F.W. and to refer him to services and

programs that are designed to address his parenting deficiencies and lead to

reunification.   The court’s temporary measures permit DHS to maintain

oversight of Father’s parenting and to ensure F.W.’s best interest until

Father is able to document where he lives, address his parenting

deficiencies, and demonstrate that his and Paternal Aunt’s criminal histories

will not place his son in danger.   After Father resolves these issues, the

juvenile court can place F.W. with Father and/or Paternal Aunt with

confidence, and DHS can continue to provide the family services until the

court determines that F.W. is no longer a dependent child.

      For all of the foregoing reasons, we affirm the juvenile court’s

adjudication and disposition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




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