J-S12045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: M.F. and M.F.,              IN THE SUPERIOR COURT OF
MINOR CHILDREN                                        PENNSYLVANIA


APPEAL OF: B.D., MOTHER                         No. 2805 EDA 2014


              Appeal from the Order entered August 26, 2014,
       in the Court of Common Pleas of Philadelphia County, Family
   Court, at No(s): CP-51-DP-0001913-2014, CP-51-DP-0001914-2014,
                         FID: 51-FN-001837-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED APRIL 10, 2015

      B.D. (“Mother”) appeals from the order entered on August 26, 2014, in

the Philadelphia County Court of Common Pleas, which found her female

child, M.F., born in July of 2008, (“Child #1”), and her female child, M.F.,

born in January of 2010, (“Child #2”), collectively (“Children”), not

dependent, dismissed the petition filed by the Department of Human

Services of Philadelphia County (“DHS”), and confirmed custody of Children

with Father.     Mother contends the trial court should have determined

Children were dependent. We affirm.

      The trial court set forth the facts and procedural history of this case as

follows:

              Both Child #1 and Child #2 were in the home and
           custody of their Mother. On July 15, 2014, Mother took
           Child #1, a 4-year-old girl, to her primary care physician
           (“PCP”). The PCP recommended that Mother take Child #1

* Former Justice specially assigned to the Superior Court.
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         to The Children’s Hospital of Philadelphia (“CHOP”) for
         examination and testing. Child #1 tested positive for
         chlamydia.    On July 18, 2014, DHS received a Child
         Protective Services (“CPS”) report alleging that on July 10,
         2014, Mother’s paramour [ ] observed Child #1 standing
         on a bed with her dress pulled up while Mother’s
         paramour’s 11-year-old son sexually assaulted Child #1.
         DHS also learned that Mother’s paramour’s 6-year[-]old
         son had previously sexually assaulted Child #1. On July
         19, 2014, a Safety Plan was implemented[,] which took
         Child #1 and Child #2 out of Mother’s home and placed
         them with Father.       On July 21, 2014, DHS visited
         [Children] in Father’s home. Child #2 stated to DHS that
         she had observed Mother’s paramour’s son touching Child
         #1’s buttocks, and Child #1 also stated to DHS that
         Mother’s paramour’s son touched her buttocks. All parties
         tested negative for chlamydia. DHS conducted a forensic
         interview to try to determine how Child #1 contracted
         chlamydia, but due to her age and developmental status,
         Child #1 was unable to verbalize what had happened to
         her; therefore, DHS did not know how Child #1 contracted
         chlamydia.

            On July 25, 2014, Mother denied having a history of
         chlamydia and substance abuse. DHS later learned that
         Mother’s medical records indicate that Mother does have a
         history of chlamydia and Mother has had past positive test
         results for chlamydia. DHS learned that Mother had tested
         positive for chlamydia when Child #1 was three months
         old. DHS requested Mother’s complete medical records,
         but Mother failed to provide them. DHS was unable to
         determine if Mother had chlamydia during her pregnancy
         with Child #1. Even if she had chlamydia during her
         pregnancy, there is a possibility that it would not have
         passed to Child #1 because Child #1 was born via
         cesarean. On August 26, 2014, an adjudication hearing
         was held. Reasonable efforts by DHS were found, and
         [Children] were found not dependent. The petition filed by
         DHS was dismissed, and custody of [children] was
         confirmed with Father pursuant to Pa.R.J.C.P. §
         1409(a)(2).

Trial Ct. Op., 11/4/14, at 1-2 (citations to record omitted).


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      On September 25, 2014, Mother filed a timely notice of appeal.

Mother   also   filed   a   contemporaneous   Concise   Statement    of   Errors

Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The

trial court filed a responsive opinion.

      Mother raises the follow issue for our review: “Whether [F]ather, and

not [M]other, should have been given custody of the minor children, M.F. [ ]

and M.F.[?]” Mother’s Brief at 4.

      Mother argues that the evidence was sufficient to support an

adjudication of dependency.      Mother raises concerns about Father being

abusive and selling marijuana.       Mother’s Brief at 8 (unpaginated).     She

contends an adjudication of dependency “would also ensure that [Mother]

participates in programs designed to address her history of substance abuse

and mental health issues, before she is reunited with [Children].” Id. She

concludes that the trial court should have considered and determined the

Children to be dependent, requiring DHS to put supervision in place to

alleviate any safety concerns while Children are in Father’s custody. Id. at

9.

      Our review is governed by the following principle:

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

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     Pennsylvania Rule of Juvenile Court Procedure 1409 provides:

        A. Adjudicating the child dependent. Once the court
        has made its findings under Rule 1408, the court shall
        enter an order whether the child is dependent.

                                 *     *    *

        (2) No dependency. If the court finds the child not to be
        dependent or the court finds a parent ready, willing, and
        able to provide proper parental care or control, the court
        shall:

           (a) dismiss the petition;

           (b) order the child to be discharged from custody and
           any restrictions ordered in the proceedings; and

           (c) enter an order identifying individual(s) who will have
           the legal and physical custody until such order is
           modified by further order of the court.

Pa.R.J.C.P. 1409(A)(2)(a)-(c).

     Section 6302 of the Juvenile Act defines a dependent child, in part, as

a child who:

        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.

     “The burden of proof in a dependency proceeding is on the petitioner

to demonstrate by clear and convincing evidence that a child meets that

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statutory definition of dependency.” In re M.T., 101 A.3d 1163, 1173 (Pa.

Super. 2010) (citation omitted).      “The definition of a dependent child

contained in section 6302 clearly states that a child must lack a parent,

guardian or other legal custodian who can provide appropriate care to the

child. A child whose non-custodial parent is ready, willing and able

to provide such care does not meet this definition.” In re M.L., 757

A.2d 849, 851 (Pa. 2000) (emphases added).

      In In re G., T., 845 A.2d 870 (Pa. Super. 2004), we stated:

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

Id. at 872 (internal quotations and citations omitted).

      In the case sub judice, the trial court opined:

            In the instant case, it was established by testimony
         that Father is ready, willing, and able to provide
         proper parental care and control of [C]hildren.
         [C]hildren have been residing with Father since July 18,
         2014, and there are no concerns with the girls continuing
         to reside with Father. Father’s home is appropriate, safe,
         and all family members residing in Father’s home have
         been cleared. There are no safety and no dependency
         concerns in regard to Father’s home. Since residing with
         Father, [C]hildren have thrived. Father testified that he
         understands all the services [C]hildren need and he will
         ensure that [C]hildren continue to receive those services.
         Father will also bring [C]hildren to have supervised
         visitation with Mother.

            Mother is an inappropriate resource for [C]hildren.
         Mother is given supervised visitation because of the
         concerns regarding who is around [C]hildren when Child

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        #1 and Child #2 are with Mother. The trial court has great
        reservations about Mother’s ability to protect the safety of
        [C]hildren. Another concern is Mother’s ability to ensure
        that [C]hildren’s health and welfare needs are met.
        Children were diagnosed as “failure to thrive.”
        Consequently, [C]hildren were supposed to be fed
        PediaSure formula but there were instances when Mother
        did not give the PediaSure formula to [C]hildren as she
        had been instructed to do. The medical records from
        CHOP indicate that Child #1 is developmentally delayed.
        Mother told DHS that Child #1 suffered from cranial
        stenosis as an infant and currently suffers from acid reflux,
        muscle deformity, and vision problems. DHS social worker
        testified that DHS had had concerns with Mother’s ability
        to parent because Mother did not cooperate with DHS or
        with Father.

Trial Ct. Op. at 3-4 (emphasis added and citations to record omitted).

     The trial court authorized the transfer of custody to Father, a non-

custodial parent whom the trial court found was ready, willing, and able to

provide proper parental care and control. Id. at 4. Moreover, the trial court

found that Father is able to take the Children for all their services and

understands his obligations as a parent.   Id.   We find that the trial court

properly dismissed the dependency petition, and confirmed custody of

Children with Father. See 42 Pa.C.S. § 6302; Pa.R.J.C.P. 1409(a)(2); In re

M.L., 757 A.2d at 851. Accordingly, we discern no abuse of discretion. See

In re R.J.T., 9 A.3d at 1190.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2015




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