J-S88031-16
                               2017 PA Super 39

IN THE INTEREST OF: L.E.A-M.,                      IN THE SUPERIOR COURT OF
A MINOR                                                  PENNSYLVANIA


APPEAL OF: J.A-M., UNCLE                          No. 1984 EDA 2016


                  Appeal from the Order Entered May 26, 2016,
                 in the Court of Common Pleas of Lehigh County,
                Juvenile Division, at No(s): CP-39-DP-0030-2016

BEFORE: OLSON, RANSOM, and STRASSBURGER, JJ.

OPINION BY STRASSBURGER, J.:                       FILED FEBRUARY 16, 2017

        J.A-M. (Maternal Uncle), appeals from the order entered May 26,

2016, in the Court of Common Pleas of Lehigh County, which denied his

petition to declare L.E.A-M (Child) dependent.         After careful review, we

affirm.

        The juvenile court set forth the pertinent background as follows.

              [C]hild was born [in June 1998], in El Salvador, and lived
        with his mother [in El Salvador] until 2015. His father resides
        about fifteen minutes’ walk from his mother’s house. [C]hild’s
        mother works as a domestic, and his father works in agriculture.
        [C]hild had his own bedroom at his mother’s house. He has
        good relationships with both his parents. [C]hild testified that “It
        was good” to live with his mother, and bad only because “she
        wasn’t able to protect [him] from all the bad things.”

               On October 5, 2015, [Child] left his mother’s home. He
        testified that he left El Salvador because “all the kids from 17 on,
        17, 18, they want to recruit you for their gangs. And if you don’t
        accept, they will kill you.”

              [C]hild was afraid of the gang efforts at recruitment. …
        [C]hild testified that his mother and father decided he should
        leave El Salvador. He then went on to describe the path he took


    Retired Senior Judge assigned to the Superior Court.
J-S88031-16


      to the United States, beginning with “when I left my mother
      gave me some money so I can- I can leave by bus and [ask] for
      rides until I get there.” He traveled through El Salvador and
      surreptitiously crossed the border to Guatemala.             “[In
      Guatemala,] I looked for a bus that would say that it would get
      close to Mexico.” [Child] then travel[ed] through Guatemala into
      Mexico. [Child] is unclear about the entry into Mexico. [Child]
      then swam into the United States. He was detained by federal
      authorities and released to [Maternal] Uncle in Allentown[. Child
      testified that] “my mother asked [Maternal Uncle] if he could- if
      he could take care of me here.”[1] Neither his mother nor his
      father has visited [Child in the United States]. However, [C]hild
      talks to his father three times a week. [C]hild feels well cared
      for by [Maternal Uncle. Maternal Uncle] buys him clothing, food,
      provides him with his own room, and sends him to school.
      [Maternal Uncle] is a legal resident of the United States, and
      [Maternal Uncle’s] wife is a United States citizen.

Juvenile Court Opinion, 7/25/2016, at 1-3.

      On February 11, 2016, Maternal Uncle filed an application requesting

permission to file a private dependency petition. The juvenile court granted

permission to file.    A hearing was held on May 13, 2016.      Following the

hearing, on May 26, 2016, the court entered its order denying Maternal

Uncle’s petition.     Maternal Uncle, joined by Child’s parents, filed a joint



1
  By way of further background, Maternal Uncle avers that once Child
entered the United States, he was immediately taken into custody by the
Department of Homeland Security. Maternal Uncle’s Brief at 7.

      After [] Child was detained in the United States, [Child’s] Mother
contacted [Maternal Uncle.] [Maternal Uncle] had no prior knowledge that []
Child was coming to the United States. However, [Maternal Uncle] agreed to
sponsor [] Child during the pendency of his removal proceedings. Since that
time, [Maternal Uncle and his Wife] have stood in loco parentis to [] Child
and have fully assumed all parental obligations owed to [] Child.

Id. at 7-8.
                                      -2-
J-S88031-16


motion for reconsideration on June 1, 2016. The motion was denied and this

timely filed appeal followed.2

      Maternal Uncle now raises the following issue for our review.

      1. Whether the lower court erred in failing to adjudicate [] Child
         dependent, under subsection (3) of the Juvenile Act’s
         definition of “dependent child,” where [Maternal Uncle]
         proved by clear and convincing evidence that [] Child has
         been abandoned by his parents?

      2. Whether the lower court erred in failing to adjudicate [] Child
         dependent, under subsection (4) of the Juvenile Act’s
         definition of “dependent child,” where [Maternal Uncle]
         proved by clear and convincing evidence that [] Child is
         without a parent[, guardian, or legal custodian?]

Maternal Uncle’s Brief at 4 (unnecessary capitalization and suggested

answers omitted).

      We consider this issue mindful of the following.

                   The 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.

            Furthermore, “[i]t 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.”

2
  When filing his notice of appeal, Maternal Uncle simultaneously filed a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i).
                                     -3-
J-S88031-16


                                    ***

            Dependency must be proven by clear and convincing
     evidence, which is defined as evidence “that is so ‘clear, direct,
     weighty and convincing as to enable the trier of fact to come to a
     clear conviction, without hesitance, of the truth of the precise
     facts in issue.’”


In re J.C., 5 A.3d 284, 287–88 (Pa. Super. 2010) (citations omitted).

“[T]he 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.” Id. at 289.

     The relevant portions of the Juvenile Act provide that a “dependent

child” is one who

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

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

42 Pa.C.S.A. § 6302.

     Maternal Uncle first argues that the testimony provided clear and

convincing evidence that Child was abandoned by his parents.        Maternal

Uncle’s Brief at 14-15.      Although the Juvenile Act does not define

“abandoned” in the context of a dependent child, Maternal Uncle argues that




                                    -4-
J-S88031-16


the juvenile court and this Court should consider and use the definition

codified in the Adoption Act.3 Id. at 12-13.

      The juvenile court found Child was not abandoned by his parents.4

Furthermore, when reviewing 42 Pa.C.S.A. § 6302(3), the court noted that

“the question is not only whether the child has been abandoned by his

parents … but also if he has been abandoned by [his parents, guardian,] or

other custodian.”    Juvenile Court Opinion, 7/25/2016, at 8 (emphasis

added).   The juvenile court found, and Maternal Uncle concedes, that

Maternal Uncle stands in loco parentis to Child and therefore is considered

Child’s custodian under the Juvenile Act.5 See id. at 8 (“[Maternal Uncle]


3
  Specifically, Maternal Uncle cites 23 Pa.C.S. § 2511(a)(1) averring that in
the context of termination of parental rights, “abandonment occurs where a
parent evidences ‘a settled purpose of relinquishing parental claim to a child
or has refused or failed to perform parental duties.’” Maternal Uncle’s Brief
at 13.
4
  In its opinion pursuant to Pa.R.A.P. 1925(a), the court explained that it
found based on “the facts in this case, [Child] has not been abandoned by
his parents. They have not cut off relations and they have attempted to
fulfill their obligations by ensuring that [Child] had an opportunity to travel
to a more desirable location and was placed with [Maternal Uncle] in the
United States.” Juvenile Court Opinion, 7/25/2016, at 7.
5
 42 Pa.C.S. § 6302 defines custodian as “[a] person other than a parent or
legal guardian, who stands in loco parentis to the child, or a person to whom
legal custody of the child has been given by order of a court.” In its opinion
pursuant to Pa.R.A.P. 1925(a), the court explained that it found based on
“the facts in this case, [Child] has not been abandoned by his parents. They
have not cut off relations and they have attempted to fulfill their obligations
by ensuring that [Child] had an opportunity to travel to a more desirable
location and was placed with [Maternal Uncle] in the United States.”
Juvenile Court Opinion, 7/25/2016, at 7.


                                     -5-
J-S88031-16


has assumed the obligations incident to the parental relationship and

discharges the parental duties to [Child]. [Maternal Uncle] feeds [Child], he

clothes him, he provides him a home, and he sends him to school.            …

[Maternal Uncle, Child’s] custodian, has not abandoned him[.]”).

     We agree with the juvenile court that Child was not abandoned under

subsection 3 because he was, and continues to be under the care of his

custodian, Maternal Uncle.     Maternal Uncle’s contention that he became

Child’s custodian because Child’s parents abandoned him is of no moment,

as the statute is clear that a dependent child is one who has been

abandoned by his parents, guardian, or other custodian.

     Maternal Uncle tries to persuade this Court that Child is dependent

because the use of “or,” a disjunctive, would imply that Child is considered

dependent if he were found to be abandoned by either his parents, guardian,

or custodian.   We disagree.   It is well-settled that “our rules of statutory

construction forbid[] absurd results[.]”   Commonwealth v. Sloan, 907

A.2d 460, 467 (Pa. 2006).      As stated supra, integral to deeming a child

dependent, a court’s finding must be based upon “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 at 288.    Here, there is no

indication that Child is currently lacking the proper care while living with


5
 42 Pa.C.S. § 6302 defines custodian as “[a] person other than a parent or
legal guardian, who stands in loco parentis to the child, or a person to whom
legal custody of the child has been given by order of a court.”
                                    -6-
J-S88031-16


Maternal Uncle.    To the contrary, the juvenile court found that Maternal

Uncle and his wife take care of all of Child’s needs, including providing food,

shelter, clothing, and education. Juvenile Court Opinion, 7/25/2016, at 8.

Adopting Maternal Uncle’s interpretation would require us to find that any

child who has been abandoned by his parents, guardian, or custodian is

considered dependent even if they are currently under the care of one of the

enumerated parties who has not abandoned, and has no intention of

abandoning the child. This interpretation leads not only to an absurd result,

but is contrary to the purpose of the law.

      As observed by the lower court, Maternal Uncle requested that, upon a

finding that Child is dependent, Child be returned to Maternal Uncle’s care.

Juvenile Court Opinion, 7/25/2016, at 4.     Clearly, Maternal Uncle has not

abandoned Child and has no intention of doing so. No relief is due.

      Maternal Uncle alternatively argues that Child is dependent pursuant

to subsection (4) because Child is without a parent, guardian, or legal

custodian.   Maternal Uncle’s Brief at 19.   Maternal Uncle avers that he is

neither Child’s guardian nor legal custodian under the law, and based on the

evidence presented, Child is “for all practicable purposes, without a parent.”

Id. at 20-21.

      In finding Child was not without parents, the juvenile court provided

the following analysis.

           [C]hild’s parents are alive, their locations are known, and
      they were both served and contacted by counsel in connection

                                     -7-
J-S88031-16


      with [the dependency petition. C]hild continues to have contact
      with his father by phone three times a week. The definition of
      “[d]ependent [c]hild” in subsection (4) provides dependency
      only if the child is without a parent; there is no additional
      language to provide that a child might be without a parent
      because of physical distance, country borders, or the dangers of
      his native environment. Giving the words of the statute their
      plain meaning, we must conclude that as long as a parent is
      alive and his or her whereabouts are known, the child is not
      without a parent.      Accordingly, [Maternal Uncle] has not
      established by clear and convincing evidence that [Child] is
      without a parent.

Juvenile Court Opinion, 7/25/2016, at 9.

      Furthermore, Child’s parents joined in the petition for reconsideration

in this case.    In agreeing with the juvenile court’s interpretation of

subsection (4), we note Maternal Uncle has provided us with no case law to

support his argument that, because Child’s parents are in El Salvador and

have not seen nor provided support to Child since he arrived in the United

States, Child is without parents.

      Furthermore, we find the Juvenile Act permits a court to find a child

dependent when clear and convincing evidence establishes that a child has

been abandoned by his parents (subsection (3)) or is without parents

(subsection (4)). Here, Maternal Uncle has failed to provide such evidence. 6




6
  Indeed, counsel for Maternal Uncle conceded that Child does in fact have
parents. See N.T., 5/13/2016, at 52-53 (“[Y]es, I realize that [Child] has
parents. They are two people. They are alive. They live in another country.
I successfully served them with mail. I get it. They exist. … I am arguing
that they have abandoned him, and they are not parents for any purpose
under this [A]ct”.).
                                    -8-
J-S88031-16


         In light of the foregoing, we agree with the juvenile court’s conclusion

that Child is not dependent. Accordingly, we affirm the order of the juvenile

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2017




                                       -9-
