J-A12020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: K.B., A MINOR         : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                                          :
                                          :
                                          :
APPEAL OF: A.B., MOTHER                   : No. 2001 MDA 2014

             Appeal from the Order entered November 12, 2014,
                  Court of Common Pleas, Luzerne County,
              Juvenile Division at No. CP-40-DP-0000318-2014


IN THE INTEREST OF: E.T., A MINOR         : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                                          :
                                          :
                                          :
APPEAL OF: A.B., MOTHER                   : No. 2002 MDA 2014

             Appeal from the Order entered November 12, 2014,
                  Court of Common Pleas, Luzerne County,
              Juvenile Division at No. CP-40-DP-0000319-2014

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED MAY 08, 2015

      Appellant, A.B. (“Mother”), appeals from the orders entered on

November 12, 2014 by the Luzerne County Court of Common Pleas

regarding her minor children, K.B. and E.T. (collectively, “the Children”).

After careful review of the record, we affirm.

      A summary of the relevant facts and procedural history is as follows.

Mother is the biological mother of K.B. and E.T., who have different

biological fathers.   K.B.’s biological father, A.C., is incarcerated.   At all

relevant times, Mother and E.T.’s biological father, L.T., had shared legal
J-A12020-15


custody of E.T. pursuant to a custody order.         Under the custody order,

Mother had primary physical custody and L.T. had partial physical custody.

Mother and L.T. also had an informal arrangement such that when L.T. had

E.T. in his custody, K.B. was also in his custody. The Children both call L.T.,

“dad.”

      On June 19, 2014, Mother left her home that she shared with her

father (“Maternal Grandfather”) and twenty-four-year-old brother (“Maternal

Uncle”) at approximately 8:00 p.m. to run errands, leaving K.B. and E.T. in

the care of Maternal Grandfather.        After Mother left the house, Maternal

Grandfather, Maternal Uncle, K.B., and E.T. went to the garage to build a

bench.     At some point, Maternal Grandfather left the garage.          Following

Maternal    Grandfather’s   departure,    Maternal   Uncle   allegedly    sexually

assaulted E.T and further physically assaulted K.B. in an attempt to keep her

from telling anyone about what she saw. Both K.B. and E.T. ran to Maternal

Grandfather and told him what occurred in the garage.                    Maternal

Grandfather immediately called the Pennsylvania State Police. The following

morning, Maternal Uncle was arrested based on these allegations.1




1
  Maternal Uncle fled the home when the state police officers arrived. N.T.,
6/23/14, at 25.      He returned to the home on June 20, 2014, at
approximately 6:30 a.m., at which time, Maternal Grandfather notified the
police. Id. at 26. The police instructed Maternal Grandfather to hold him at
the residence and wait for them to come get him. Id. At approximately
5:00 p.m., the police arrived and arrested Maternal Uncle. Id.


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        On the night of the assaults, E.T. was transported to the hospital by

ambulance for an examination. Mother met E.T. at the hospital. Following

the hospital examination, Mother transported E.T. to the Child Advocacy

Center (“CAC”) in Scranton for a forensic interview. Mother remained with

E.T. at the hospital and at the CAC until she had to go to work, at which

time, Mother made arrangements for the Children to stay with her sister.2

        On June 20, 2014, Luzerne County Children and Youth Services

(“CYS”) filed a temporary shelter care petition for the Children based on the

allegations regarding Maternal Uncle.    The trial court granted the petition

and transferred temporary legal and physical custody of the Children to CYS.

CYS placed the Children in kinship care with L.T. and his girlfriend, B.B. On

June 23, 2014, the trial court held a hearing on the continuation of shelter

care.    The trial court ordered the continued temporary legal and physical

custody of the Children with CYS and granted Mother a minimum of eight

hours of unsupervised visits with the Children per week.      The trial court

decided that the Children would remain in L.T. and B.B.’s home for the time

being.




2
   Mother testified that since Maternal Uncle had absconded, the police did
not want the Children to return home and asked if the Children could stay
somewhere else until Maternal Uncle was found. N.T., 6/23/14, at 42.
Mother agreed, arranging for her sister to care for the Children. Id. At
some point, however, for reasons unknown to this Court, the Children were
transferred to L.T.’s girlfriend, B.B. Id. at 42-43.


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     On June 27, 2014, CYS filed dependency petitions alleging that the

Children were without proper parental care and control.    CYS claimed that

the Children were fearful of returning home and were in need of protection

and services. CYS filed amended dependency petitions for the Children on

July 29, 2014, further alleging that Mother failed to meet the Children’s

dental needs and failed to meet E.T.’s mental health needs. On August 4,

2014, the trial court held an adjudication hearing on the dependency

petitions, at the conclusion of which the trial court closed the case with

regard to E.T., transferring physical custody of E.T. to B.B. until the

completion of L.T.’s criminal background check. The trial court found K.B. to

be a dependent child and granted CYS temporary legal and physical custody

of the child. The court ordered K.B. to be placed in kinship care with B.B.,

as K.B. already had a kinship relationship with L.T. and B.B. and to prevent

separating K.B. from E.T.

     On August 14, 2014, Mother filed a motion for reconsideration and a

petition for review of visitation. The trial court expressly granted Mother’s

motion for reconsideration and vacated the August 4, 2014 order. A hearing

was held on October 28, 2014, at which all testimony from the June 23,

2014 and August 4, 2014 hearing was incorporated.

     On November 12, 2014, the trial court issued an order denying

reconsideration of its August 4, 2014 order. With regard to K.B., the trial

court found by clear and convincing evidence that K.B. was a dependent



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child and transferred custody to L.T. and B.B., with Mother receiving

supervised visitation rights.   The trial court further found by clear and

convincing evidence that E.T. was not a dependent child and transferred

physical custody of her to L.T.   The trial court granted Mother and Father

shared legal custody of E.T. and granted Mother supervised visitation rights.

On November 18, 2014, Mother filed a timely notice of appeal to this Court.

On appeal, Mother raises the following issues for our review:

            1. Whether the trial court erred in finding K.B.
            dependent in light of the undisputed fact that the
            concerns that led to the filing of shelter care, that
            removed the [C]hildren from the care of [] Mother,
            were remedied prior to the time of the adjudication
            hearing?

            2. Whether the trial court erred in transferring
            custody of E.T. to [] Father in light of the undisputed
            fact that the concerns that led to the filing of shelter
            care, that removed the [C]hildren from the care of []
            Mother, were remedied prior to the time of the
            adjudication hearing?

Mother’s Brief at 3.

      For her first issue on appeal, Mother asserts that the trial court erred

in finding K.B. dependent. Mother’s Brief at 12. Mother specifically asserts

that the trial court erred because CYS admitted that the safety concerns

regarding Mother’s ability to protect K.B. that led to the filing of the shelter

care petition were remedied prior to the time of the adjudication hearing,

and because CYS admitted that Mother and Maternal Grandfather acted

appropriately. Id.



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      In addressing this issue, we begin with our well-settled standard of

review for dependency cases:

            [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 E.B., 83 A.3d 426, 430-31 (Pa. Super. 2013) (citing In re R.J.T., 9

A.3d 1179, 1190 (Pa. 2010)).

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

relevant 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.A. § 6302(1).

      Proper parental care is defined as “care which (1) is geared to the

particularized needs of the child and (2) at a minimum, is likely to prevent

serious injury to the child.” In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013)

(quoting In re C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997)).            “The

question of whether a child is lacking proper parental care and control so as



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to be a dependent child encompasses two discrete questions: whether the

child presently is without proper care or control, and if so, whether such care

and control are immediately available.” In re C.P., 836 A.2d 984, 987 (Pa.

Super. 2003) (quoting In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002)).

      The petitioner carries the burden of demonstrating by clear and

convincing evidence that the child meets the statutory definition of

dependency. In re J.J., 69 A.3d 724, 730 (Pa. Super. 2013) (citing In re

J.C., 5 A.3d 284, 289 (Pa. Super. 2010)). “‘Clear and convincing’ evidence

has been defined 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., 63

A.3d at 349 (citing In re C.R.S., 696 A.2d at 843).

      In this case, the trial court determined that Mother could not provide

proper parental care and control to the Children.        Trial Court Opinion,

12/18/14, at 7. The trial court found that “Mother should have insisted that

[Maternal Uncle] be on his medication before allowing him to be present

around [the C]hildren … [and] should have either required her brother to

move out or she should have moved out with the [C]hildren,” since Maternal

Uncle refused to do so. Id. at 9; N.T., 8/14/14, at 67, 75. The trial court

found that “[t]he scenario was a figurative ticking time-bomb,” and that

Mother jeopardized the safety of the Children by allowing Maternal Uncle to

have contact with them. Trial Court Opinion, 12/18/14, at 9.



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      After reviewing the record, we conclude that there is no support in the

record for the trial court’s conclusions regarding the foreseeability of

Maternal Uncle’s conduct. To the contrary, both Maternal Grandfather and

Mother testified that Maternal Uncle never exhibited sexual behavior towards

the Children, became violent towards them,3 or acted inappropriately

towards them. N.T., 6/23/14, at 22, 39-40. They also testified that they did

not notice a change in Maternal Uncle’s behavior prior to the incident. Id. at

29, 40. Furthermore, Mother testified that when she left the Children at the

house, she always left the Children in the care of Maternal Grandfather, not

Maternal Uncle. Id. at 52. Both Maternal Grandfather and Mother testified

that the Children were rarely left alone with Maternal Uncle. Id. at 22, 52-

53.   Finally, we note that CYS intake caseworker, Sabrina Pall (“Pall”),

testified that Mother and Maternal Grandfather acted appropriately during

the incident. Id. at 14.

      We nevertheless find that the trial court’s error in this regard is of

minor significance as the trial court seemingly accepted Mother’s assertions

and CYS’ admission on cross-examination that Mother remedied the

concerns with regard to Maternal Uncle prior to the dependency hearing.


3
   Although Mother and Maternal Grandfather testified that Maternal Uncle
was not an aggressive person, they admitted that he was previously
involved in two physical altercations with other adults, including one
altercation with L.T. N.T., 6/23/14, at 23, 27; N.T., 8/4/14, at 145-46, 160-
61. It is a far cry to reach the conclusion, however, that Maternal Uncle’s
involvement in physical altercations with other adults would put Mother on
notice that he would sexually assault or otherwise harm the Children.


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See Trial Court Opinion, 12/18/14, at 9; N.T., 8/4/14, at 79-81.4 The trial

court’s opinion reflects that it did not base its determination that Mother

could not provide proper parental care and control on its concerns regarding

Maternal Uncle, but instead, rested its determination upon “additional

concerns” involving Mother’s alleged drug use and Mother’s neglect of the

Children’s dental and mental health needs:

            Mother did not act appropriately during the time
            frame between shelter care and dependency
            hearings, specifically in failing to report for requested
            drug screens. Furthermore, this [c]ourt finds that
            Mother failed to address E.T.’s mental health needs
            and the [C]hildren’s dental needs which are currently
            adequately addressed by E.T.’s father, [L.T.]

Trial Court Opinion, 12/18/14, at 19. The trial court determined that these

additional concerns evidenced that K.B. was without proper parental care

and control when residing with Mother. Id. at 7. After our careful review of

the record, we conclude that the trial court did not abuse its discretion.

      CYS presented evidence supporting its concerns regarding Mother’s

alleged drug use. Pall testified at the August 4, 2014 dependency hearing

that she received a referral that Mother was abusing drugs. N.T., 8/4/14, at

75.   Pall testified that she had concerns regarding Mother’s drug use and

requested that she submit to a urinalysis drug screen prior to having


4
   Mother obtained new housing for herself and the Children, which CYS
inspected and deemed appropriate.          N.T., 8/4/14, at 79.      Maternal
Grandfather also testified at the shelter care hearing that if Maternal Uncle
were released from incarceration, he would not be permitted to return to his
home. N.T., 6/23/14, at 20-21.


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overnight visits with the Children. Id. at 89-90. Despite her phone call to

Mother on October 24, 2014, informing her that she needed to submit to a

urinalysis drug screen that afternoon, Mother failed to appear for the screen.

N.T., 10/28/14, at 27.

      At the October 28, 2014 hearing, testimony established that Mother

submitted to a drug screen and tested positive for one narcotic substance,

Suboxone.     Id. at 16-17.   CYS had not yet obtained records regarding

Mother’s Suboxone use, however, because Mother did not provide CYS with

releases from her doctors until October 20, 2014. Id. at 28. Counsel for

CYS informed the trial court that CYS had difficulty locating the doctor that

prescribed Mother Suboxone because Mother failed to “provide exact

information as to the location of the doctor.”   Id. at 28-29. Furthermore,

counsel for CYS informed the trial court that CYS obtained results from a

previous drug screen from Mother’s primary physician, in which Mother

tested positive for “several substances that the doctor was not aware of and

didn’t have information that she was prescribed [those substances].”5 Id. at

26.

      CYS also presented evidence that Mother neglected K.B.’s dental

needs. Dr. Allen Woods testified that he treated K.B. on April 4, 2013. N.T.,



5
  According to counsel for CYS, Mother submitted to a drug screen in April of
2014.   N.T., 10/28/14, at 29.       Mother tested positive for “Morphine,
[N]oroxycodone, Oxycodone, Alprazolam, Oxymorphone, and then another
medication that were not listed on any requisition.” Id.


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8/4/14, at 58. At that time, K.B. had three cavities; one in a baby tooth,

and two in her adult teeth.       Id. at 58-59.     K.B. had an appointment

scheduled for April 25, 2013 to have further work completed, but K.B. did

not come to the appointment. Id. at 59.

      Dr. Shawn Casey testified that he examined and treated K.B. on June

24, 2014 when “she came in with an emergency problem.” Id. at 46-47. Dr.

Casey testified that K.B. required two fillings on two of her adult teeth and

had one baby tooth extracted that was decayed and nonrestorable. Id. at

46-48.   Dr. Casey testified that the decay of the tooth was extensive and

that there was “a little bit of infection” in the tissue around the tooth. 6 Id.

at 47, 49, 51.      Dr. Casey also testified that K.B. experienced some

discomfort from the tooth that had to be extracted. Id. at 46-47. According

to Dr. Casey, K.B.’s discomfort most likely came from the decay of the tooth,

but he admitted that it could have been caused by the pressure from the

permanent tooth that was coming in immediately underneath it, or from a



6
   Dr. Casey testified that a ruptured abscess could cause the infection. N.T.,
8/4/14, at 49. Dr. Casey also testified that L.T.’s girlfriend, B.B., provided a
medical history and described that K.B. had an abscess on that tooth, which
is the reason why she came to the office for treatment. Id. at 48-49. Pall
testified that K.B. informed her that she previously told Mother she had a
“bubble” on her tooth and that she was experiencing pain. N.T., 8/4/14, at
68-69. According to Pall, Mother’s friend’s mother “popped said bubble.”
Id. Mother contested this information and asserted that K.B. “did not
address the problem to [her],” and that she just recently learned of this
information. Id. at 125-26. The trial court, however, did not find Mother
credible, choosing instead to believe Pall’s testimony on this issue. See Trial
Court Opinion, 12/18/14, at 13.


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combination of the decay and the pressure from the permanent tooth. Id.

at 46-47, 52.

     Mother attempted to provide an explanation for the lack of dental care,

testifying that she did not follow up with Dr. Woods because L.T., who

provided dental insurance to the Children, “dropped their insurance” when

he quit his job. Id. at 113-14. When questioned, Mother admitted that she

never called the insurance company to determine whether the Children had

coverage. Id. at 128. Mother, however, applied for and received welfare

assistance, including a medical ACCESS card, after she learned that the

Children’s insurance was cancelled. Id. at 117-18. Mother did not return to

Dr. Woods, however, because he did not accept the ACCESS card.        Id. at

118. Furthermore, Mother testified that the Children did not complain of any

pain and that she did not receive any reports from L.T. that the Children

complained of pain, and therefore, did not see “a major issue that needed to

be prompted [sic] immediately.” Id. at 118, 122-125.

     The trial court did not find Mother credible, stating, “The court finds

Mother’s testimony to be inconsistent with respect to whether she was told

the health insurance was actually cancelled or whether she assumed it was

cancelled at the time her second appointment was scheduled with Dr. Woods

in April of 2013.” Trial Court Opinion, 12/18/14, at 14. The trial court also

deemed credible L.T.’s testimony that the Children complained about dental

pain. Id.



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      As the trial court is the sole arbiter of the credibility of witnesses, we

are unable to find that the trial court abused its discretion. See Busse v.

Busse, 921 A.2d 1248, 1255 (Pa. Super. 2007) (“The fact-finder is in the

best position to assess credibility of witnesses and we do not disturb

credibility determinations on appeal.”).      Furthermore, “we are not in a

position to reweigh the evidence and credibility determinations of the trial

court[,]” even if the opposite conclusion could be reached. In re R.J.T., 9

A.3d at 1190.      In this case, the record contains evidence establishing

Mother’s inability to provide proper care or control necessary for K.B.’s

physical health.   CYS also established a concern that Mother’s substance

abuse threatened the health, safety, and welfare of K.B.7 Accordingly, we

conclude that the record supports the trial court’s determination. The trial

court did not abuse its discretion in adjudicating K.B. dependent.

      For her second issue on appeal, Mother argues that the trial court

erred in transferring custody of E.T. to L.T. since she remedied the

conditions that led to the filing of the shelter care petition prior to the time

of the adjudication hearing. Mother’s Brief at 16. Mother asserts that the

trial court erred in relying on the principles of In the Interest of Justin S.,




7
 This Court has established that evidence of a parent’s use of alcohol or a
controlled substance is a proper consideration in determining whether
parental care and control is immediately available. In re J.J., 69 A.3d at
731; see also 42 Pa.C.S.A. § 6302(1).


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543 A.2d 1192 (Pa. Super. 1988), as that case is distinguishable from the

case herein. Mother’s Brief at 16.

      In In the Interest of Justin S., a trial court altered an existing

custody arrangement between a divorced mother and father by awarding

custody to the father without first adjudicating their two children dependent.

In the Interest of Justin S., 543 A.2d at 1200. Prior to the trial court’s

decision, the mother had custody of the children.            The trial court

determined, however, that the mother could not provide her two children

with proper parental care and control, while the father of the children could

immediately provide the children with such care.      Id.   On appeal to this

Court, mother argued that the trial court erred in awarding custody to father

without first adjudicating the children dependent. Id.

      This Court held that “in a dependency proceeding, a court may grant

custody of an allegedly dependent child to that child’s non-custodial natural

parent without first declaring the child dependent as long as sufficient

evidence of dependency exists.”      Id. at 1199.   We further found that, in

general, “any attempted disposition of the custody of an infant in a

dependency proceeding is improper where the record indicates no finding of

dependency was ever made.”       Id. at 1187.   “[A] court cannot adjudge a

child to be dependent when his non-custodial parent is ready, willing, and

able to provide the child with proper parental care and control[.]”    Id. at

1191. Thus, we concluded:



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            It is the duty of the trial court to determine whether
            the noncustodial parent is capable and willing to
            render proper parental care and control prior to
            adjudicating a child dependent.          If the court
            determines that the custodial parent is unable
            to provide proper parental care and control ‘at
            this moment’ and that the non-custodial parent
            is ‘immediately available’ to provide such care,
            the child is not dependent under the provisions
            of the Juvenile Act. Consequently, the court
            must grant custody of the allegedly dependent
            child to the non-custodial parent.

Id. (emphasis added).

     Mother asserts that In the Interest of Justin S. is inapplicable

because CYS did not meet its burden of proof for dependency in this case,

and therefore, the Children should be returned to her.       Id. at 16.   We

disagree.

     As previously discussed, CYS presented evidence establishing a

concern regarding Mother’s alleged drug use. With respect to E.T.’s health

and safety in particular, CYS presented evidence that as with K.B., Mother

neglected E.T.’s dental needs. Dr. Woods treated E.T. on April 4, 2013, and

discovered that E.T. had five cavities. N.T., 8/4/14, at 58, 60. Dr. Woods

referred E.T. to a pedodontist to have two pulpotomies (root canals on baby

teeth) conducted, as the cavities had reached the middle of the tooth where

the nerve is located.   Id. at 60-61.    Mother did not follow up with the

pedodontist or pursue any additional treatment despite Dr. Woods’ referral.




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         Another dentist, Dr. Leigh Jacopetti, testified that she treated E.T. on

June 23, 2014. E.T. did not report any pain at that time, but Dr. Jacopetti

filled a cavity in one of E.T.’s permanent molars and extracted two baby

teeth.     Id. at 37, 39.      Dr. Jacopetti testified that E.T. needed three

additional fillings, including one tooth, which needed a pulpotomy.           Id. at

38.      Given E.T.’s young age, however, Dr. Jacopetti testified that the

additional work had to be scheduled for a future date “because it’s too much

for [young children] to sit through in one visit.” Id. at 41.

         CYS   also   presented   evidence      that   Mother   failed   to   follow

recommendations with regard to E.T.’s mental health needs. Because E.T.

exhibited problems at school both socially and academically, E.T.’s school

recommended that Mother seek treatment for E.T.             Id. at 114.       Mother

chose to take E.T. to Northeast Counseling since they accepted the ACCESS

card.     Id. at 158.   A psychiatrist at Northeast Counseling diagnosed E.T.

with social phobia and determined that E.T. required further evaluation to

determine if she had Attention Deficit Disorder. N.T., 8/4/14, at 24. Janice

Wile Judge (“Ms. Judge”), the program director of the children’s outpatient

department at Northeast Counseling, testified that Mother and E.T. attended

two therapy sessions with the psychiatrist, but failed to attend a third

session, and thereafter failed to respond to any letters sent by Ms. Judge or

Northeast Counseling. Id. at 25-27.




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      Mother testified that she stopped attending sessions at Northeast

Counseling because they wanted to medicate E.T. Id. at 140. L.T. testified

that he attended the session at Northeast Counseling when they discussed

recommendations for E.T. and that they never discussed medicating E.T.

Id. at 169-70.      The trial court found that Mother’s testimony lacked

credibility. Trial Court Opinion, 12/18/14, at 12-13.

      Mother further testified that she did not engage any other services or

agencies to treat E.T.’s mental health needs because E.T. had shown

significant improvement without outside intervention. N.T., 8/4/14, at 141-

42. Mother asserted that in two months she helped E.T. bring her grades up

“from [fifties] to straight A’s [sic],” Id. at 115, and that E.T.’s mental health

needs were being met by the school’s counseling services and her

individualized education plan (“IEP”). See id. at 114-17. Mother and CYS

stipulated, however, that an IEP draft report showed that E.T. had a thirty-

three in spelling. Id. at 133-39.

      We once again reiterate that “[w]e must defer to the factual findings

of the hearing judge and accord them great weight as he has had an

opportunity to observe and rule upon the credibility of the witnesses and

parties who have appeared before him.” In the Interest of Justin S., 543

A.2d at 1198. In this case, the record reveals evidence to support the trial

court’s determination that Mother neglected E.T.’s dental and mental health

needs, and that Mother had drug concerns.          Thus, contrary to Mother’s



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assertion, we do not find In the Interest of Justin S. to be distinguishable,

as CYS demonstrated that Mother could not provide proper parental care and

control for the Children.

      Mother further asserts that unlike the father in In the Interest of

Justin S., which the trial court in that case deemed immediately available to

provide proper parental care and control, L.T. was not “a fit and willing

resource for the court to consider.” Id. at 17. Mother states that L.T. had

the same failings as she did with regard to the dental needs and mental

health of the Children and that “it is illogical to hold [Mother] accountable

but not dad when he had the [C]hildren [twenty] of the days the month

preceding shelter care.” Id.

      The trial court specifically rejected Mother’s assertion, stating, “This

[c]ourt disagrees with Mother’s argument that [L.T.] failed to take the child

[(E.T.)] and her half-sibling [(K.B.)] to dental appointments or to counseling

appointments.” Trial Court Opinion, 12/18/14, at 17. The trial court found

credible L.T.’s testimony and Pall’s testimony that L.T. attempted to address

the Children’s dental needs by discussing the issue with Mother.8 Id. The

trial court also accepted the testimony and stipulations by Mother and L.T.

that L.T. could not schedule appointments for counseling to address E.T.’s

mental health needs because Mother would not let him see the Children for a


8
  We note that since L.T. gained custody of the Children, L.T. and B.B. have
addressed the dental needs of the Children. See N.T., 8/4/14, at 165-66,
170.


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J-A12020-15


period of time, evidenced by the three custody contempt petitions L.T. filed

against Mother. Id. at 17-18. As credibility determinations are left to the

trial court, we do not disturb the trial court’s findings in this regard.   See

Busse, 921 A.2d at 1255.

      As a result, we conclude that pursuant to In the Interest of Justin

S., the trial court was required to grant custody of E.T. to L.T. since L.T., the

noncustodial parent, was available to provide E.T. with proper parental care

and control. Accordingly, the trial court did not err in transferring custody of

E.T. to L.T.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/2015




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