J-S23028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.J.A.S., A                 IN THE SUPERIOR COURT OF
MINOR,                                                PENNSYLVANIA

                            Appellee



APPEAL OF: M.J.A.S., A MINOR,

                            Appellant                No. 3418 EDA 2014


                Appeal from the Order Entered October 24, 2014
                In the Court of Common Pleas of Lehigh County
              Juvenile Division at No(s): CP-39-DP-0000147-2014


BEFORE: DONOHUE, SHOGAN, STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 20, 2015

       M.J.A.S. (“Child”)1 appeals from the order entered on October 24,

2014, in the Juvenile Division of the Lehigh County Court of Common Pleas.

The October 24, 2014 order denied the private dependency petition filed on

Child’s behalf by the Hebrew Immigrant Aid Society (“HIAS”), a non-profit

legal services organization. The private dependency petition asked the court

to adjudicate Child, who is in this Commonwealth and is pregnant and who is

in the care, custody, and control of the United States Department of Health

and Human Services, dependent pursuant to 42 Pa.C.S. § 6302(1), (3), and

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Child was born in October of 1996, in Escuintla, Guatemala.
J-S23028-15


(4) of the Juvenile Act.2 HIAS asserted in the petition that an adjudication of

dependency would permit Child to apply for Special Immigrant Juvenile

Status under federal law. After careful review, we affirm the denial of the

petition.

       On September 5, 2014, HIAS filed a private petition for dependency

alleging Child was a dependent child pursuant to 42 Pa.C.S. § 6302(1), (3),

and (4), and was not currently under the supervision of the Lehigh County

Office of Children and Youth Services (“OCYS”).3 The petition averred that

Child was under the supervision and custody of the United States

Department of Health and Human Services’ Office of Refugee Resettlement

(“ORR”) as an Unaccompanied Alien Child. The petition further stated that

Child was currently placed in ORR-funded care at KidsPeace in Bethlehem,

Pennsylvania.      The petition alleged that it was not viable for Child to be

reunited with her parents, who live in Guatemala, or to return to Guatemala

due to their abuse and abandonment of her, and the ongoing epidemic of

gang violence in Guatemala. The petition further alleged that, the only way

for Child to avoid deportation to her dangerous environment was for the

Lehigh County Court of Common Pleas to issue an order declaring her to be

a dependent child.        The petition indicated that a dependency order is a
____________________________________________


2
    The Juvenile Act, 42 Pa.C.S. §§ 6301–6375.
3
   We note that OCYS participated in the proceedings in the trial court as an
interested party and filed a Brief of the Interested Party in this Court.



                                           -2-
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prerequisite for special immigrant juvenile status and continued access to

federal foster care services. The petition alleged that it is not in Child’s best

interest for her to be returned to Guatemala.      The prayer for relief in the

petition stated:

      Wherefore, Petitioner respectfully requests that this Honorable
      Court adjudicate this Child dependent and enter an order that
      will allow her to apply for Special Immigrant Juvenile Status
      pursuant to [8] U.S.C. § 1101(a)(27)(J).

Dependency Petition, 9/15/14, at 8.

      On October 21, 2014, the trial court held an evidentiary hearing at

which Child testified on her own behalf. At the close of the testimony, the

parties stipulated that the caseworker for KidsPeace, Noemary Vega, would

have testified to certain matters had she been presented as a witness. N.T.,

10/21/14, at 99-102. The trial court set forth the following:

             On September 5, 2014, pursuant to Pa.R.J.C.P. 1320,
      Petitioner filed an Application for Private Petition for Adjudication
      of Dependency for [M.J.A.S.], a juvenile born [in October of
      1996]. After hearing on September 16, 2014, we approved the
      filing of a private petition.

            We directed service of the Petition and notice of the
      hearing date upon the parents, as required by rule. Service on
      the parents was accomplished, despite the fact that Petitioner
      had initially claimed that [F]ather’s whereabouts were unknown.
      (See Application to File a Private Petition, filed September 5,
      2014,     which    recites   “[F]ather’s   address,  Guatemala,
      whereabouts unknown”).

            Counsel was appointed to represent the mother, [and] the
      father, and a Guardian Ad Litem was appointed for [Child]. A
      hearing was held on October 21, 2014, to consider the
      allegations in the Petition for Adjudication of Dependency. . . .


                                      -3-
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             At the conclusion of the hearing, we made the following
       findings:

              1. The minor who is the subject of this private
              petition was born in Escuintla, Guatemala, but is
              presently in Bethlehem, Pennsylvania, at KidsPeace,
              an institutional provider of human services. She is in
              the statutory custody and care of the United States
              Department of Health and Human Services.

              2. Her passage to the United States was paid by
              [“S.”], who resides in the United States and is the
              paternal grandmother (mother of the putative
              father) of the minor’s unborn child.

              3. The parents of the minor child reside in
              Guatemala, apparently with sufficient resources to
              be accessible by phone and to maintain households.

              4. The minor does not wish to live with her parents,
              but there is no evidence that they are presently
              refusing to take care of her or that they cannot take
              care of her as required by statute.

       Order of Adjudication — Child Not Dependent, October 24, 2014.

Trial Court Opinion, 12/23/14, at 2-3.4

       In the order entered on October 24, 2014, the trial court denied the

petition.   On November 20, 2014, Child, through HIAS, filed a notice of

appeal, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal, Child

raises the following issues:


____________________________________________


4
   After the filing of the October 24, 2014 order, Child turned eighteen years
old later that week.



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       1. Whether the trial court committed an error of law in holding
       that a child who lives by herself and has lived by herself for the
       4 years immediately preceding the adjudicatory hearing,
       following abandonment by her parents, is not presently without
       proper parental care or control[?]

       2. Whether the adjudication of M.J.A.S. as Not Dependent should
       be reversed as a matter of law because the lower court erred by
       refusing to consider whether M.J.A.S. could be a ‘dependent
       child’ by virtue of being “ungovernable” under number (6) of 42
       Pa.C.S. § 6302, Definition of “Dependent Child”[?]

       3. Whether the trial court committed an error of law in holding
       that a child who lives by herself and has lived by herself for 4
       the [sic] years immediately preceding the adjudicatory hearing is
       not “abandoned” under 42 Pa.C.S. § 6302, Definition of
       “Dependent Child” number (3)[?]

       4. Whether the trial court committed an error of law and abused
       its discretion when it failed to effectuate the purposes of the
       Juvenile Act and to enter an order that was best suited to
       [Child’s] safety, protection and physical, mental and moral
       welfare pursuant to the Juvenile Act[,] 42 Pa.C.S.A.
       § 6301(b)(1.1)[?]

Child’s Brief at 5.5

       Our standard of review is set forth below:

             [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
____________________________________________


5
   Child does not argue or make reference to that part of the Juvenile Act
that defines a dependent child as one who “is without a parent, guardian, or
legal custodian.” 42 Pa.C.S. § 6302(4). Thus, she has waived any argument
regarding the trial court’s refusal to adjudicate her dependent under that
definition. See Krebs v. United Refining Company of Pennsylvania,
893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in
or suggested by an appellate brief’s statement of questions involved and
concise statement is deemed waived).



                                           -5-
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       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). See also In re A.B., 19 A.3d

1084, 1093-1094 (Pa. Super. 2011) (stating that this Court will not infringe

upon the juvenile court’s credibility determinations).     Additionally, “[t]he

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 870, 872 (Pa.

Super. 2004).

       Section 6301 of the Juvenile Act provides in pertinent part:

       § 6301. Short title and purposes of chapter

                                    * * *

       (b) Purposes.—This chapter shall be interpreted and construed
       as to effectuate the following purposes:

          (1) To preserve the unity of the family whenever possible
          or to provide another alternative permanent family when
          the unity of the family cannot be maintained.

          (1.1) To provide for the care, protection, safety and
          wholesome mental and physical development of children
          coming within the provisions of this chapter.

42 Pa.C.S. § 6301.

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

                                     -6-
J-S23028-15


      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[.]

                                   * * *

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

                                   * * *

      (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
      the need of care, treatment or other supervision.

42 Pa.C.S. § 6302 (emphasis added).

      Under 42 Pa.C.S. § 6302(1), “a child will be declared dependent only

when he is presently without proper parental care or control, and when such

care and control are not immediately available.” In re M.B., 101 A.3d 124,

128 (Pa. Super. 2014). Section 6341(a) and (c) of the Juvenile Act provides

in pertinent part as follows:

      (a) General rule.— After hearing the evidence on the petition
      the court shall make and file its findings as to whether the child
      is a dependent child . . . .

                                   * * *

      (c) Finding of Dependency.— If the court finds from clear and
      convincing evidence that the child is dependent, the court shall
      proceed immediately or at a postponed hearing, which shall
      occur not later than 20 days after adjudication if the child has
      been removed from his home, to make a proper disposition of
      the case.


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42 Pa.C.S. § 6341(a) and (c).

     In In re D.A., 801 A.2d 614 (Pa. Super. 2002), a panel of this Court

stated:

     [A] court is empowered by 42 Pa.C.S. § 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 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. § 6351(a).

Id. at 617.

    Regarding the placement of a child who has been adjudicated

dependent, this Court has explained:

          When a child is adjudicated dependent, the child’s proper
     placement turns on what is in the child’s best interest, not on
     what the parent wants or which goals the parent has achieved.
     See In re Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691
     (1990) (noting that “[o]nce a child is adjudicated dependent. . .
     the issues of custody and continuation of foster care are
     determined by the child’s best interests”). Moreover, although
     preserving the unity of the family is a purpose of the Act,
     another purpose is to “provide for the care, protection, safety,
     and wholesome mental and physical development of children
     coming within the provisions of this chapter.”        42 Pa.C.S.
     § 6301(b)(1.1). Indeed, “[t]he relationship of parent and child
     is a status and not a property right, and one in which the state
     has an interest to protect the best interest of the child.” In re
     E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983).

In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).

     As noted above, we are required to accept the trial court’s findings of

fact and credibility determinations if they are supported by the record. In

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J-S23028-15


re R.J.T., 9 A.3d at 1190. Here, the trial court addressed Child’s credibility

as follows:

           Although in this instance [Child] is now 18 years old and
      her parents reside in a foreign country, that should not lessen
      the burden of proof. And, similarly, when a private petitioner
      seeks a declaration of dependency, the burden of proof is no less
      than when OCYS is the petitioner.

            The testimony in this case can be summarized as follows:
      The Child testified at length about her history. Her parents
      separated when she was about 7 years old. N.T., October 21,
      2014, p. 16:11-12. She then seemed to say she lived with her
      mother until she was 13. N.T., October 21, 2014, p. 27:5-7.
      During this time her mother would beat her daily, and would
      drink to excess: and[,] once[,] when she was 11, her mother’s
      husband, who is now an ex-husband, “touched her sexually.”

            She also testified that she would visit her father briefly[,]
      but did not want to live with him because he was abusive to the
      women he was with. The Child detailed one such incident of
      abuse (she also detailed an accident whereby her younger
      brother almost drowned, but we found nothing abusive about
      father in this incident, nothing more than inattentiveness).

             The Child testified that she was then left to the care of her
      sisters when she was 13, while her mother moved to another
      city. She remained in the family home, under the care of her
      sisters. She would be in touch with her parents, would visit her
      parents for a week at a time, but was basically on her own.
      When she was 17 and pregnant, [S.,] her “mother-in-law,” the
      mother of the putative father, paid for her passage to the U.S.
      She now lives in the care and custody of KidsPeace, a provider of
      human services, pursuant to detention by U.S. [Department of]
      Health and Human Services. “She’s not free to leave.” N.T.,
      October 21, 2014, pp. 101:25-102:1.

            It is the above testimony on which Petitioner relies and
      contends is sufficient to establish dependency. Even if we found
      the evidence to be credible, clear and convincing, there was
      other important testimony, or lack of testimony, which we were
      obliged to consider.


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           Pursuant to 42 Pa.C.S.A. § 6302, the first definition of a
     dependent child is 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.”        We have
     emphasized the words in the statute that place the
     determination of dependency firmly in the present tense. While
     past history may be helpful to evaluate present status, we
     cannot adjudicate a 17-year-old girl dependent because she was
     neglected and abused at age 7, 11, or 13. She must be
     presently at risk of abuse or neglect, which was not shown.

           Furthermore, even if we are shown that the Child does not
     have such care, we must also be shown by clear and convincing
     evidence that such care is not available immediately. In re
     [I]nterest of J.M., [652 A.2d 877, 880 (Pa. Super. 1995)].

            Clearly, by the Child’s own testimony, even if believed
     without reservation, she has parents, and she offered no
     evidence that they are presently unable to fulfill their parental
     role pursuant to 6302. Petitioner showed no impediment to an
     immediate reunification with either her father or her mother,
     other than her own desire not to reunify, based on incidents
     which happened years ago[,] and situations which no longer
     exist.

            Even if all [of] the Child’s testimony were accepted as true,
     the testimony describes a history which is not the situation at
     present. The Child testified that she knows where her mother
     lives, but chooses not to go back to her because of an incident of
     sexual touching (without any additional detail) which occurred
     five years ago by her mother’s now ex-husband. There was no
     testimony, even by the alleged dependent, that her mother’s
     home was presently unsafe or unavailable to her. Her two
     younger siblings live with her mother. N.T., October 21, 2014,
     p. 62:21-22. She testified that she last lived with her mother
     (she described it as a visit) about seven months ago. N.T.,
     October 21, 2014, p. 92. She does not describe how or why that
     visit seven months ago came to an end. She describes no
     abuse, violence, or mistreatment at that time.


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J-S23028-15


           Likewise, the Child testified that her father lives in his own
     home in Guatemala City[,] and that she is in contact with him.
     Both of her parents know she is pregnant. N.T., October 21,
     2014, p. 62:23-25; p. 63:1. She is in regular contact with both
     her parents. N.T., October 21, 2014, p. 63:2-8.

           She testified further that her father recently took her
     younger sister into his home, but that she (the Child) chose not
     to ask [her father] if she could live with him. The Child testified:

           A. Because my sister [St.] called my father and told
           him that she wanted to go live with him, and she
           went to the capital and my dad went to pick her up
           at the bus station.

                                   * * *

           Q. And you still do not want to go back to stay with
           him, correct?

           A. No.

     N.T., October 21, 2014, pp. 88:23-89:16.

           It is not clear and convincing to this court that her parents
     are an unavailable resource to her, since they are both locatable,
     the instances of abuse she describes are many years past,
     and[,] depending on which of the Child’s testimony you believe,
     either both younger siblings live with [her] mother, or one lives
     with [her mother] and the other lives with [her] father. There is
     no testimony that either parent is abusing the children presently
     in their custody, or failing to provide adequate parental care and
     control. Counsel for the mother spoke to [the] mother very
     early in the proceedings. “I spoke to her regarding her position
     regarding the dependency. She was not opposed to the entry.
     She is not able to be a resource at this time.” N.T., October 19,
     2014, p. 4:5-19. However, the mother was not present at the
     hearing[,] and was not subject to cross-examination.

           Nor can the court can ignore the fact that the Child is in
     the care, custody and control of the U.S. Department of Health
     and Human Services, who has contracted with KidsPeace to
     provide the child with what she needs. There was no evidence


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      that any of the needs enumerated under the first definition of
      “dependent child” in 6302 are not being met by KidsPeace.

            Nor was it explained why [S.][,] the [“]mother-in-law[”] of
      the Child and grandmother of her expected child, is not a
      resource to provide the Child with parental care and control.
      Obviously, [S.] has an interest in the welfare of the Child, having
      provided her with the financial means and logistical
      arrangements to come here from Guatemala.

            The Child did not testify that her parents are presently
      refusing to take care of her, and, thereby, petitioner fails to
      meet the requirements that she has been abandoned by her
      parents, guardian or other custodian. [The third definition of
      dependent child is set forth at 42 Pa.C.S. § 6302(3).]

            Clearly she has parents, and, thereby, petitioner fails to
      meet the requirements of the fourth definition of dependent
      child. [The fourth definition of dependent child is set forth at 42
      Pa.C.S. § 6302(4).] Petitioner would have us believe that the
      Child’s story of suffering should be sufficient to meet the
      standard of clear and convincing evidence. Sympathy is no
      substitute for credible evidence. We did not disregard the Child’s
      testimony or deny her the right to be heard. Quite the contrary,
      we heard her at length (as admitted by the Petitioner).
      However, the length of testimony does not make it any more
      convincing. In fact, the testimony was lengthy in large part
      because of the Child’s unclear, inconsistent and vague
      statements.

Trial Court Opinion, 12/23/14, at 5-9, and corrected page 9, filed 1/2/15

(emphasis in original).

      The trial court explained its rationale for finding Child’s testimony

unbelievable as follows:

             Even if the inference must be drawn that the [C]hild is
      presently without parental care and control based on distant
      historical abuse and neglect, this court further finds the Child’s
      testimony about earlier abuse and neglect by her parents to be
      suspect.


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           We instruct jurors to look at consistency or inconsistency
     within the testimony. The alleged dependent claimed that both
     parents abandoned her when she was 7. N.T., October 21,
     2014, p. 13:20-22. She also then testified that her mother hit
     her almost every day between the ages of 6 or 7 until she was
     13 years old, N.T., October 21, 2014, p. 24:13-17, which is
     inconsistent with her claim that [her] mother had left her at age
     7. She specifically testified that when she was age 10, her
     mother was not living with her. N.T., October 21, 2014, p. 22:1-
     8. She testified that her mother’s husband (now ex-husband)
     “touched” her when she was 12 and visiting her mother. N.T.,
     October 21, 2014, p. 33:6-13.

           She testified that [St.] and [Jr.,] [her siblings,] are
     presently living with her mother, N.T., October 21, 2014, p.
     62:21, but she also testified that [St.] is living with her father.
     N.T., October 21, 2014, p. 88:22-p. 89.3.

            She further testified that her mother asked her to go and
     live with her[,] but she refused. N.T., October 21, 2014, p.
     27:21-23; p. 48: 14-18. She later testified that she did not
     know when she had last lived with her mother. The passage is
     significant, because it has the air of evasion.

           Q. When was the last time you lived with your
           mother under the same roof?

           A. It’s been about seven months.

           Q. You lived with your mother seven months ago?

           A. Yes. I went to visit her. For a week.

           Q. Okay. When is the last time that you resided—
           when you actually lived with your mother, and not
           just for a visit.

           A. It’s been years. I don’t remember.

           Q. How old were you?

           A. I don’t remember.

     N.T., October 21, 2014, p. 92:3-13.

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           She testified that she had last lived with her father at age
     7, N.T., October 21, 2014, p. 16:11-13, and then she testified
     that she had last lived with him around [age] 11 or 12. N.T.,
     October 21, 2014, p. 28:22-24.          Her testimony as to her
     whereabouts and her parents’ whereabouts when she lived with
     her parents or just “visited” them are [sic] conflicting in almost
     every aspect. Every visit was “for a week.” While we can
     understand that a young child might not be aware of details such
     as these, this child is no longer young[,] and her testimony was
     inconsistent, not uncertain.        Her testimony about her
     whereabouts and her parents whereabouts is riddled with
     inconsistencies as to important periods of time, and then
     becomes just downright evasive.

            We also instruct jurors to look for corroboration. There
     was no other witness to the events claimed by the Child. The
     law does not require corroboration, but there is nothing
     contextual which supports this Child’s testimony. When a child
     is before us from another state, the Children and Youth
     caseworkers obtain materials and investigations from other
     jurisdictions. This is, of course, difficult or impossible to do
     when the child is from a foreign nation, but the difficulty of
     obtaining investigatory evidence does not reduce the burden of
     proof from “clear and convincing” to something less.

            The only corroboration offered was a stipulation that a
     caseworker at KidsPeace would testify that the Child also told
     her about the alleged sexual touching, which happened when
     she was 11 (not 12 as claimed by [Child] during testimony).
     This was five years ago. The length of time between the
     supposed event and the report to the caseworker does not make
     the report as persuasive as a prompt report would be. Although
     the testimony was stipulated to by all other parties in the case, it
     is not particularly helpful to the court in evaluating the credibility
     of the touching. There was no detail as to the exact nature of
     the touching, it never happened again after the Child complained
     to [her] mother; and the man who was alleged to have done this
     is now out of [her] mother’s life.

           It is clear from the testimony that the Child never lacked
     for a place to reside. There was much testimony about two
     homes owned or rented by mother, one in Escuintla and the
     other in Cocales, as well as a paternal grandmother’s home in
     Guatemala City, in addition to father’s home in Guatemala City.

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     There was frequent testimony about the Child calling both
     parents, [and] “visiting” both parents, and there was no
     testimony that they were ever unable to be reached. Both
     parents were easily located and cooperative when given notice of
     the proceeding in our courts.

            The Child’s demeanor was not consistent with her
     testimony. When she testified about her many suicide attempts
     and being in fights among gangs, her demeanor changed. She
     smiled and laughed. She also did not suffer any injuries of any
     significance from her multiple, dramatic suicide attempts.

          A. Every time I was on drugs, I always tried to
          commit suicide. I would cut myself. I would throw
          myself from the top of the house. I would jump
          from bridges so -- there was always the danger to
          kill myself. Besides that, because I was hanging out
          with the people from this gang, I was always on the
          streets at night.    Every time there was a fight
          between -- among -- the different gangs, I was
          always in the middle. There were always shootings.
          There was also fights[,] and I was always right
          there.

     N.T., October 21, 2014, p. 34:3-12.

     Cross-examination by Attorney Maurer:

          Q. Now, you said that you attempted suicide by
          jumping off houses and bridges; do you recall that
          testimony?

          A. Yes.

          Q. Did you actually jump?

          A. Yes.

          Q. How many times did you jump off a bridge?

          A. Off a bridge, it was about three times.

          Q. And how many times off of a house?


                                  - 15 -
J-S23028-15


           A. I don’t know, a whole bunch.

           Q. And at no time were you ever injured to the point
           where you needed hospitalization?

           A. I would never go to the hospital, but even if I hurt
           myself, I wouldn’t go to a hospital.

           Q. Are you suggesting that you may have had
           broken bones that you didn’t bother to go to the
           hospital for?

           A. Not broken.

     N.T., October 21, 2014, p. 89:17—p. 90:9.

             We also instruct jurors to evaluate the motive of the
     witness. In this instance, the witness, a Child almost 18 years
     old, has an economic motive to exaggerate her story. In her
     initial Petition’s closing argument, the Petitioner argued that she
     should be provided dependency to receive “ongoing educational
     support and learning English and prenatal care, the therapy that
     she needs because of the trauma and the drug abuse.”

Trial Court Opinion, 12/23/14, at 9-13, and corrected page 9, filed 1/2/15.

     As noted above, in her first and third issues, Child claimed that her

parents abandoned her resulting in her being without proper parental care or

control under 42 Pa.C.S. § 6302.       The trial court found these claims

unfounded and explained its reasoning as follows:

            We have thoroughly discussed the essential elements of
     this allegation of error. However, we point out it is factually
     incorrect. The Petitioner states that both a clinician and a
     caseworker were witnesses from the group housing facility
     “whose testimony was accepted by stipulation as corroborating
     the Child’s testimony regarding sexual molestation by her
     mother’s boyfriend.” This is inaccurate. The testimony of ONE
     caseworker was the subject of stipulation. Noemary Vega would
     testify “that the statements that [Child] made on the stand
     about sexual molestation when she was 11 years old, that she

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      has made those same statements to Noemary                      Vega
      consistently.” N.T., October 21, 2014, p. 100:2-5.

            The Petitioner also claims that the court erred “by refusing
      to consider the Child’s testimony in making its decision.” This
      allegation is factually incorrect; we considered the testimony. As
      the Petitioner stated, the Child testified for over two hours, and
      an examination of the transcript will indicate that the court was
      attentive, patient, and fair during the entirety of the testimony.
      We failed to find it convincing, for the reasons stated above; we
      did not “refuse” to consider it.

                                    [* * *]

            While we can understand the Petitioner’s disappointment in
      our decision, and accept with professional dispassion that
      disappointed litigants will accuse the court of error, we find this
      particular assignment of error to be troubling and outside the
      bounds of professional courtesy. The record reflects that the
      court was more than accommodating to the Petitioner by giving
      scheduling dates prior to the Child’s birthday and by showing the
      utmost patience during the entirety of the hearing. Not being
      convinced by the testimony is not the same thing as denying a
      person the right to testify. Failing to find a witness sufficiently
      credible should not result in an accusation that a judge violated
      a rule of due process.

                                    [* * *]

            The reason we did not [specify which of Child’s allegations
      were proven by clear and convincing evidence] is because none
      of the allegations . . . were proven by clear and convincing
      evidence. The standard of clear and convincing evidence is high.
      Clear and convincing evidence is evidence that is “so clear,
      direct, weighty, and convincing as to enable the trier of fact to
      come to a clear conviction, without hesitancy, of the truth of the
      precise facts at issue.” In the Matter of C.R.S., [696 A.2d 840,
      843 (Pa. Super. 1997)]; In re M.B., supra.

Trial Court Opinion, 12/23/14, at 13-15. We agree with the trial court, and

discern no abuse of discretion in the trial court’s findings or conclusions.




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      The trial court continued and analyzed Child’s second issue wherein

she claimed that the trial court erred in refusing to consider whether she was

“ungovernable” pursuant to 42 Pa.C.S. § 6302(6):

            Ungovernability was raised by the Petitioner at the last
      moment, during the arguments to the court (See N.T., October
      21, 2014, p. 119).       Petitioner alleges that “allegations of
      ungovernability are waivable by the Child herself through her
      counsel.” This is an interesting assertion, and one for which we
      could find no supporting law.

             In this instance, the Petitioner is the one who gives notice
      of the issues to be tried, and it is not a question of waiver.
      OCYS did not raise the issue of ungovernability[;] the Petitioner
      raised it. We indicated that we might be open to addressing the
      issue, but for the fact that we were time bound by the Child’s
      impending 18th birthday. This can hardly be error, where we
      disallow a theory of the case raised in closing arguments by a
      Petitioner. None of the other parties had warning, nor an
      opportunity to deal with this allegation.

Trial Court Opinion, 12/23/14, at 15-16. Again, we agree with the trial court

and conclude that there was no abuse of discretion in this determination as

Child’s accusation is not supported by the record.

      Next, the trial court disposed of Child’s fourth issue in which she baldly

averred the trial court failed to enter an order that was best suited to her

safety, protection, and welfare pursuant to the Juvenile Act as follows:

            The purposes of the Act are met only by due process and
      compliance with the provisions of the Act and the Rules of
      Juvenile Court procedure. To substitute our own feelings about
      the best interest of a child, without following the provisions of
      the Act, is clearly contrary to all legal principles. The law
      requires methodical attention to the rights of all parties,
      dispassionate evaluation of testimony, and, sometimes, it
      requires reaching conclusions and results which might leave one
      regretful that the outcome could not be different.           That

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      “purpose” clause of the Juvenile Act is not a phrase which allows
      a judge to do unlimited good things for people just because it
      feels good. A dependency hearing is a two-stage process. In
      accordance with the overarching purpose of the Juvenile Act
      “[t]o preserve the unity of the family whenever possible,” see 42
      Pa.C.S.A. § 6301(b)(1), “a child will only be declared dependent
      when he is presently without proper parental care and when
      such care is not immediately available.” In re R.T., [592 A.2d
      55, 57 (Pa. Super. 1991)]; In re A.B., supra.

            The first stage requires the juvenile court to hear evidence
      on the dependency petition and determine whether the child is
      dependent pursuant to the standards set forth in section 6302.
      42 Pa.C.S.A. § 6341(a). If the court finds clear and convincing
      evidence that the child is dependent, it may move to the second
      stage in which it must make an appropriate disposition based
      upon an inquiry into the best interests of the child. 42 Pa.C.S.A.
      § 6351(a); In re B.S., 923 A.2d 517, 521 (Pa. Super. 2007).

Trial Court Opinion, 12/23/14, at 16-17. In light of our standard of review

as set forth in In re R.J.T., 9 A.3d at 1190, we will not disturb the findings

and credibility assessments of the trial court as they are supported by the

record, and we discern no abuse of discretion in the trial court’s decision.

      Finally, the trial court commented on the petition underlying this

appeal:

             There is one lingering issue which troubles this court.
      Although not mentioned in the reasons for finding the child “Not
      Dependent” because it was unnecessary at that time, we are
      compelled to point out that the child is in the custody and
      detention of the Department of Health and Human Services, and
      not free to leave, as claimed by Petitioner.      [Counsel for]
      Petitioner claimed, prior to the testimonial proceeding that he
      had the permission from the “Office of Refugee Resettlement to
      hand over physical custody to OCYS.” See N.T. September 15,
      2014, p.13.     Even though we accept the representation of
      counsel, we had no evidence of the authority of said agency to
      give such permission. This judge has serious concerns whether
      the Department of Health and Human Services should have been

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      made a party to the proceeding. At a proceeding prior to the
      actual hearing ([s]ee N.T. September 15, 2014, p.13), [Counsel
      for] Petitioner claimed he has the agreement of the Federal
      Government to release the Child to the custody of Lehigh County
      OCYS, but nothing further was presented to the court. We were
      not provided with any legal authority as to how a mere state
      court could simply take custody of a child who is being detained
      by the federal government. I spend no more time on this issue,
      because it was not briefed, or argued, and we do not presume to
      know the answer.       But we believe an answer would be
      important.

Trial Court Opinion, 12/23/14, at 17.

      For the reasons set forth above, we discern no abuse of discretion in

the trial court’s conclusion that Child is not dependent.         Accordingly, we

affirm the trial court order declining to find Child dependent.

      Order affirmed.

      Judge Donohue did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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