J. S70001/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.D., A MINOR :       IN THE SUPERIOR COURT OF
                                  :             PENNSYLVANIA
APPEAL OF: M.K., MOTHER           :
                                  :           No. 4063 EDA 2017


               Appeal from the Order, November 28, 2017,
          in the Court of Common Pleas of Philadelphia County
           Family Court Division at Nos. 51-FN-002529-2017,
                         CP-51-DP-0002811-2017



IN THE INTEREST OF: D.D., A MINOR :       IN THE SUPERIOR COURT OF
                                  :             PENNSYLVANIA
APPEAL OF: M.K., MOTHER           :
                                  :           No. 4064 EDA 2017


               Appeal from the Order, November 28, 2017,
          in the Court of Common Pleas of Philadelphia County
           Family Court Division at Nos. 51-FN-002529-2017,
                         CP-51-DP-0002812-2017



IN THE INTEREST OF: A.S., A MINOR :       IN THE SUPERIOR COURT OF
                                  :             PENNSYLVANIA
APPEAL OF: M.K., MOTHER           :
                                  :           No. 4065 EDA 2017


               Appeal from the Order, November 28, 2017,
          in the Court of Common Pleas of Philadelphia County
           Family Court Division at Nos. 51-FN-002529-2017,
                         CP-51-DP-0002813-2017


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:        FILED DECEMBER 05, 2018
J. S70001/18



      M.K. (“Mother”) appeals from the November 28, 2017 orders entered

in the Court of Common Pleas of Philadelphia County adjudicating B.D.,

female child born in June 2002; D.D., female child born in July 2003; and

A.S, female child born in October 2005 (collectively, “Children”), dependent

as defined in Section 6302 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375.

Pursuant to Pa.R.A.P. 513, we have consolidated these appeals sua sponte.

After careful review, we affirm.

      The trial court set forth the following:

            On September 18, 2017, Department of Human
            Services (“DHS”) learned that B.D.’s sibling had run
            away from the home of her Mother.

            On September 18, 2017, DHS visited the home of
            Mother and met with Mother, [C.A., Mother’s
            paramour (“Paramour”)], and [the Children]. The
            Paramour was not the father of [the Children.] The
            Paramour appeared aggressive in his behavior.
            Mother stated she allowed her Paramour to discipline
            her [Children] because she was unable to control
            [the Children’s] behavior.   Paramour stated [the
            Children] were his children and he was able to
            discipline [the Children] in a manner he saw fit.
            Paramour answered DHS’ questions which were
            directed to Mother.

            On September 18, 2017, DHS visited the home of
            Maternal Uncle and met with Maternal Uncle and
            D.D. DHS reported D.D. stated that she ran away
            from Mother’s home after Paramour chased her down
            the street and grabbed her by her bookbag. D.D.
            stated Paramour used inappropriate language and
            verbal discipline with her and siblings, B.D. and A.S.;
            that Mother allowed Paramour to establish all
            household rules; that Mother and Paramour used
            marijuana in their bedroom.


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          On September 19, 2017, DHS interviewed A.S. at
          [school].    A.S. stated that she did not feel
          comfortable in her home with Paramour present and
          that she did not want to reside with Mother.

          On September 19, 2017, DHS implemented a Safety
          Plan for [the Children] stating that B.D. and her
          sibling would reside at the home of Paternal
          Grandmother.    Paternal Grandmother stated she
          would ensure [the Children’s] safety and that their
          needs were met.

          On September 24, 2017, B.D. and Mother entered
          DHS and stated that Paternal Grandmother had
          forced B.D. to attend a church service that morning;
          B.D. left the church and went to the home of her
          Maternal uncle, [M.K.]        Paternal Grandmother
          arrived at the home of Maternal Uncle with
          Philadelphia Police and B.D. was returned to Paternal
          Grandmother’s home.       B.D. stated that she was
          being verbally abused by Paternal Grandmother.
          B.D. further stated Paternal Grandmother was
          forcing her to make false statement [sic] about
          Mother and she did not feel safe in Paternal
          Grandmother’s home.

          On September 25, 2017, B.D. began residing with
          her Maternal Uncle with a Safety Plan.

          On October 2, 2017, DHS learned that Maternal
          Uncle was not an appropriate caregiver for B.D. B.D.
          began residing in the home of Paternal Uncle of A.S.

          [B.D.] had a history of running away from home.

          Mother had a diagnosed [sic] of depression, anxiety
          and borderline personality disorder.

          Mother had a history of heroin use.

          B.D. and D.D.’s father was not involved in their care.
          A.S.’s Father is deceased.



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J. S70001/18

Trial court opinion, 5/10/18 at 1-2.

      The record reflects that on October 20, 2017, DHS filed dependency

petitions for each of the Children based on lack of proper care or control.

The record further reflects that Mother retained Debra Moshinki, Esq., as

private counsel.    The trial court scheduled the adjudicatory hearing for

October 31, 2017.

      The record further reflects that, except for D.D., the parties, counsel,

and other interested persons, including A.S.’s paternal grandparents and

paternal aunt and uncle, were present for the scheduled hearing on

October 31, 2017. (Notes of testimony, 10/31/17 at 5-7.) At the beginning

of the hearing, B.D. and A.S. complied with the trial court’s request to step

outside of the courtroom. (Id. at 7-8) The trial court then stated that it had

been made aware of allegations that certain adult individuals had been

“coaching” the Children as to their testimony at the adjudication hearing.

(Id. at 8-10.) The trial court further stated that it had read the dependency

petitions and was concerned about what the Children had “already been

exposed to.”   (Id. at 9.)   The trial court then entered a protective order

against Paramour directing him to refrain from directly and indirectly

contacting the Children and to refrain from intimidating the Children for a

period of one year. (Id. at 11; see also dependency court protective order,

10/31/17.) In so doing, the following colloquy took place:

            [THE COURT:] Now let me just say this while we’re
            on the record about [Paramour], I’m going to issue a


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           stay-away order, because that was the request of
           counsel and I don’t know the dynamics between
           [Mother] and [Paramour]. Just something for your
           consideration. I hope you choose your girls over
           [Paramour]. And I can tell you, and I know it’s just
           allegations and we’re going to have a full hearing,
           but I’m telling you, you need to choose your girls
           over a relationship.

           [MOTHER]: I already said I was.

           THE COURT: Okay. And how you handle this will
           have ongoing repercussions in terms of how they
           relate to relationships going forward, okay? Just for
           your consideration. Just for your consideration. I
           can’t legislate what you do in terms of your
           relationships and all this stuff, but I submit to you, if
           we have a full hearing and we get testimony about
           negative interactions with [Paramour] to the point
           that a Child Advocate or anybody saying, can you
           issue a stay-away order now, the [sic] it’s of grave
           concern, okay? All right.

Notes of testimony, 10/31/17 at 11-12.

     The trial court then entered a continuance order and deferred the

dependency adjudication hearing until November 28, 2017.           (Id. at 31;

see also continuance order of court, 10/31/18.)

     The dependency adjudication hearing took place on November 28,

2017. The record reflects that Jeffrey C. Bruch, Esq., appeared as “on-call

counsel” for Mother.    (Notes of testimony, 11/28/17 at 1-2.)         At the

beginning of the hearing, Attorney Bruch informed the trial court that

Attorney Moshinski, Mother’s private counsel, had informed Attorney Bruch

that she “was going to withdraw from the case.” (Id. at 2.) At that point,




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the trial court stated it would “vacate Miss Moshinski” and appoint

Attorney Bruch.1 (Id.)

      The trial court summarized the adjudication hearing testimony as

follows:

            [T]he social worker testified Mother did not have
            appropriate protective capacities in regard to her
            children. Mother refused to provide safety for her
            children by failing to remove her aggressive
            Paramour from her home. Mother was diagnosed
            with mental health issues of depression, borderline
            personality disorder and anxiety. The social worker
            testified Mother had not provided any documentation
            that she was engaged in drug, alcohol or mental
            health treatment. The social worker testified there
            were concerns of Mother’s marijuana use and history
            of heroin use.

            The social worker testified [that the Children] stated
            they witnessed a significant amount of physical
            violence    between      Mother     and     Paramour.
            Furthermore, the social worker testified the
            [C]hildren stated one incident was so grave they
            became involved. The social worker recommended
            Mother receive domestic violence counseling.

Trial court opinion, 5/10/18 at 3 (citations to notes of testimony omitted).

      We note that the record reflects that Attorney Bruch cross-examined

the social worker.   The record further reflects that the trial court asked

Attorney Bruch whether he “would like to call a witness” and he declined.

(Notes of testimony, 11/28/17 at 48-49.)




1The trial court entered an order that “vacated” Mother’s “private attorney”
and appointed Attorney Bruch. (Appointment of counsel order of court,
11/28/17.)


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      At the conclusion of the November 28, 2017 hearing, the trial court

entered orders adjudicating the Children dependent.               On the same day,

Mother   filed   notices   of   appeal,   together   with     statements       of   errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).2 In Mother’s

Rule 1925(a)(2)(i) statements, Mother raised the following issues:

            1.     The judge ruled in error that [DHS] meets its
                   burden of prove [sic] in finding of dependency
                   under 42 Pa.C.S. sec. 6302.

            2.     The judge ruled in error by committing the
                   [C]hildren and not returning the [C]hildren to
                   Mother.

Mother’s “concise statement of matters complained of on appeal,” 11/28/17

(emphasis    omitted).      On    May     10,   2018,   the    trial   court    filed   its

Rule 1925(a)(2)(ii) opinion.

      On May 14, 2018, Attorney Bruch filed with this court an application to

withdraw as Mother’s counsel. On May 15, 2018, Aaron A. Mixon, Esq., filed

with this court a “praecipe for entry of appearance” on Mother’s behalf. Also

on May 15, 2018, Attorney Mixon filed a “motion to amend 1925(b)

statement.” On May 22, 2018, this court granted Attorney Mixon’s motion to

amend and directed that Mother file her supplemental statement with this

court, and serve that supplemental statement on the trial court, on or before


2 We note that the record sometimes refers to the Pa.R.A.P. 1925(a)(2)(i)
statement as the Rule 1925(b) statement. Because these consolidated
appeals are children’s fast track appeals, the statement of errors complained
of on appeal is a Rule 1925(a)(2)(i) statement. We further note that the
trial court’s opinion in a fast track appeal is a Rule 1925(a)(2)(ii) opinion.


                                          -7-
J. S70001/18

May 31, 2018.     Attorney Mixon failed to timely comply with this court’s

May 22, 2018 order and filed Mother’s supplemental statement with this

court on July 3, 2018, which was 33 days late.           In that untimely filed

statement, Mother attempts to raise the following issue:

            3.    Trial court abused its discretion when it
                  adjudicated the [C]hildren dependent because
                  it violated mothers [sic] constitutional right to
                  fundamental due process. mother [sic] should
                  have been granted a continuance when the
                  court appointed her an attorney at the bar of
                  the court who had no information regarding
                  the circumstances and allegations involved in
                  mother’s case. Moher [sic] was not afforded
                  an opportunity to be heard or present evidence
                  in which denied [sic] her an opportunity to
                  present her case in chief.

Mother’s “AMENDED/SUPPLEMENTAL 1925B,” 7/3/18.

     On July 17, 2018, this court granted Attorney Bruch’s application to

withdraw as Mother’s counsel.

            The standard of review in dependency cases requires
            an appellate court to accept 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. We review for abuse of
            discretion[.]

In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (quotation marks and citation

omitted).

     Section 6302 of the Juvenile Act defines a “dependent child” as:




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            [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[.]

42 Pa.C.S.A. § 6302.

     This court clarified the definition of “dependent child,” as:

            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.

In re G., T., 845 A.2d 870, 872 (Pa.Super. 2004) (internal quotation marks

and citations omitted).   See also In re J.C., 5 A.3d 284, 289 (Pa.Super.

2010). “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 at 872 (citation

omitted).

     This court has explained that:

            a court is empowered by 42 Pa.C.S.[A] § 6341(a)
            and (c) to make a finding that a child is dependent if
            the child meets the statutory definition by clear and
            convincing evidence. If the court finds that the child
            is dependent, then the court may make an


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           appropriate disposition of the child to protect the
           child’s physical, mental and moral welfare, including
           allowing the child to remain with the parents subject
           to supervision, transferring temporary legal custody
           to a relative or public agency, or transferring custody
           to the juvenile court of another state. 42 Pa.C.S.[A.]
           § 6351(a).

In re D.A., 801 A.2d 614, 617 (Pa.Super. 2002) (en banc).

     Although Mother identifies three issues in her statement of questions

presented,3 a reading of Mother’s brief reveals that her complaint is that the


3 Mother sets forth the following issues in her statement of questions
presented:

           [1.]   Whether the trial court abused its discretion in
                  finding the Law Department met its burden of
                  proof in finding dependency under 42 C.S.
                  § 6302 [sic]?

           [2.]   Whether the trial court abused its discretion by
                  committing the [C]hildren and not returning
                  the [C]hildren to Mother?

           [3.]   Whether the trial court abused its discretion
                  when it adjudicated the [C]hildren dependent
                  because it violated her right to fundamental
                  due process. [sic] Mother should have been
                  granted a continuance when she was appointed
                  an attorney at the bar of the court who had no
                  information regarding the circumstances and
                  allegations involved in [M]other’s case. Mother
                  was not afforded an opportunity to be heard or
                  present evidence, which denied her an
                  opportunity    to    present   her     case  in
                  chief.[Footnote 1]

                        [Footnote 1] Within counsel was
                        not the attorney during the
                        adjudicatory  hearing.      Court
                        appointed counsel raised the first


                                    - 10 -
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trial   court    violated   her   due   process   rights   (1)   when   it   appointed

Attorney Bruch to represent her at the adjudicatory hearing because he was

not prepared to defend her; and (2) when it denied her an opportunity to be

heard and present evidence to rebut DHS’s case. (Mother’s brief at 6-10.)

Because Mother’s complaints to this court only concern the third issue that

she attempted to raise in her untimely supplemental Rule 1925(a)(2)(i)

statement in violation of this court’s May 22, 2018 order, Mother has waived

all issues related to her due process claim on appeal. See U.S. Bank., N.A.

v. Hua, 2018 Pa.Super.LEXIS 829 (Pa.Super. July 20, 2018) (reiterating

that a failure to comply with a court order directing an appellant to file a

concise statement results in waiver of issues on appeal).

        Finally, although Mother fails to challenge the trial court’s factual

findings and legal conclusions with respect to its dependency determinations,

we nevertheless note that the trial court:

                found the testimony of the social worker extremely
                credible and extremely professional in light of



                            two issues on appeal.        Within
                            counsel   filed    a   supplemental
                            1925(b)       statement      raising
                            [M]other’s third issue on appeal.

Mother’s brief at 5.

      We admonish Attorney Mixon for impliedly misrepresenting the record
in footnote 1. As discussed above, this court granted Attorney Mixon’s
motion to file a supplemental Rule 1925(a)(2)(i) statement. Attorney Mixon,
however, failed to timely comply. As written, footnote 1 implies that counsel
preserved the third issue for appeal. Attorney Mixon is mistaken.


                                         - 11 -
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            offensive accusations from Mother. The Court was
            reflective of prior Court Orders, October 31, 2017
            where Mother stated she would remove Paramour
            from her home and failed to do so to date. The
            Court reasoned Mother lacked the protective capacity
            to keep [the Children] safe from the actions and
            behavior of Paramour[.] [T]he Court referenced the
            history of the report in the case dating back to 2015
            reporting aggressive behavior of Paramour.        The
            Court found convincing social worker’s testimony of
            Mother’s abdicating her parental responsibility to an
            aggressive Paramour who engaged in egregious
            behavior such as yearlong punishments, diagnosis of
            mood disorders and personality issues, unmedicated
            impulsivity behaviors and lack of compliance with
            mental     [health]    treatment    convincing    and
            compelling[.]     Furthermore the Court reasoned
            Mother lacked insight and judgement to place B.D. in
            a home subjected to violence and drug usage. . . .

            The Trial Court found by clear and convincing
            evidence that it was contrary to the health, safety,
            and welfare of [the Children] to remain in the
            custody of Mother and transferred custody to [DHS].

Trial court opinion, 5/10/18 at 3 (citations to notes of testimony omitted).

      Our review of the record supports the trial court’s conclusion that DHS

proved by clear and convincing evidence that the Children are without

proper care or control and that Mother’s lack of understanding of the

situation that resulted in their placement means that such care and control

are not immediately available.     Therefore, clear and convincing evidence

supported the trial court’s dependency adjudications.

      Orders affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/5/18




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