J-A12029-17 J-A12030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.H., A MINOR :        IN THE SUPERIOR COURT OF
                                  :             PENNSYLVANIA
                                  :
APPEAL OF: S.H.                   :
                                  :
                                  :
                                  :
                                  :
                                  :        No. 1612 WDA 2016

              Appeal from the Order Entered September 23, 2016
            In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-DP-541-2016

IN THE INTEREST OF: S.H., A MINOR :        IN THE SUPERIOR COURT OF
                                  :             PENNSYLVANIA
                                  :
APPEAL OF: J.M.                   :
                                  :
                                  :
                                  :
                                  :
                                  :        No. 1622 WDA 2016

            Appeal from the Order Entered September 23, 2016
            In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-DP-541-2016


BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                        FILED AUGUST 10, 2017

     Appellant, S.H. (“Child”) through appellate counsel, KidsVoice (“GAL”),

appeals from the order entered on September 23, 2016, adjudicating Child

dependent pursuant to 42 Pa.C.S.A. § 6302. Appellant, J.M. (“Father”) also

appeals from the September 23, 2016, order. This Court consolidates both
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appeals sua sponte, as Appellants appeal the same order and present the

same issues. See Pa.R.A.P. 513. We affirm.1

       The relevant facts are as follows:

       On June 15[], 2016, Harrison Township police reported to CYF
       that the mother of four year old [S.H.] and her boyfriend had
       come to the police station stating that he was missing. The
       mother further said that the boy had been attacked and
       possessed by supernatural beings at the mother’s home and at
       the maternal grandfather’s home and that the child had turned
       into a zombie. The police described their behavior as bizarre
       and suspected that they were under the influence of drugs or
       alcohol. During the police investigation the mother advised the
       police that she and her boyfriend decided that they did not want
       the child anymore and drove the child to the Mt. Oliver section of
       Pittsburgh and left the child with a male stranger. The Harrison
       Township police contacted Mt. Oliver to investigate. The Mt.
       Oliver police found the child at the godmother’s home. The Mt.
       Oliver Police immediately observed that the child had a burn on
       the back of the right leg and reported this to CYF.

       The child was then immediately transported by EMS to Children’s
       Hospital of Pittsburgh for examination by Dr. Adelaide Eichman.
       Dr. Eichman diagnosed that the child had suffered an untreated
       burn to the back of the right thigh along with multiple and
       significant bruising to his ears, forehead, cheeks, left neck and
       back arms.      The bruising to the left side of his face was
       consistent with a slap mark and the blood work indicated that
       the child had suffered muscle damage. The child had multiple
       bruises in abnormal locations that are normally protected areas
____________________________________________


1
   While this appeal was pending, the GAL provided to this Court a
permanency review order, dated April 18, 2017, which terminated court
supervision and S.H. remained with Father, rendering this appeal moot.
Nevertheless, this Court may decide questions that have been rendered
moot when a party may be detrimentally impacted by the trial court’s
decision. See In re M.B., 101 A.3d 124, 127 (Pa. Super. 2014) (stating
“because there can be collateral consequences to a finding of dependency, it
is excepted from the mootness doctrine”).



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     and not typically injured in childhood play. Dr. Eichman found
     that [S.H.] had been the victim of physical child abuse and that
     the injuries were inflicted. Dr. Eichman further concluded that
     this child had suffered substantial pain at the time that he was
     physically abused.

     Dr. Eichman promptly filed a child line report and the child
     immediately had a forensic interview at Children’s Hospital Child
     Advocacy Center by Jamie Mesar, M.S.W., and observed by
     Allegheny County Police Detectives Kuma and Holzwarth, CYF
     case worker Justina McMasters and two other [C]hild Advocacy
     Center staff members. Ms. Mesar’s report further found that the
     child was developmentally delayed and his speech was often
     difficult to understand. The child’s forensic interview indicated
     that the mother’s boyfriend Tyrone had burned and hit him. The
     child was immediately taken into emergency protective custody
     via court order out of CYF’s and the court’s concerns for the
     child’s physical and psychological safety and trauma and was
     placed with a Wesley Spectrum foster family. Allegheny County
     Detectives interviewed the mother and her boyfriend Tyrone on
     the same day and they admitted that Tyrone had hit the child at
     the request of the mother. The Allegheny County Police filed
     child abuse charges against the mother and her boyfriend which
     are pending.

     On 6/16/2016, CYF requested a shelter hearing and invoked
     court jurisdiction alleging again that the child had been badly
     abused and the biological father was unknown. At the hearing
     the next day before a hearing officer and not this court, neither
     the mother nor biological father appeared, but members of the
     mother’s family did attend. The mother apparently was notified
     but did not attend and the biological father continued to be
     unknown to CYF. CYF interviewed the maternal family members
     attending for possible kinship placement but they were screened
     out for recent CYF and criminal histories. The mother’s family
     members who had helped the mother care for the child for the
     last four years did not know the biological father’s name and did
     not have any contact information and his identity remained
     unknown.

     The biological father left a voicemail with the caseworker over
     the weekend after the hearing and then four days later, CYF
     spoke with the biological father for the first time on June 21,
     2016. In legal contradiction with itself and only hours after the
     first meeting with the biological father, CYF filed a petition

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       alleging the dependency of [S.H.] while also alleging that the
       biological father was a ready willing and able parent and without
       investigations into the relationship between the child and
       biological father or any other of this child’s prospective future
       caretakers.

Trial Court Opinion, 12/22/16, at 2-4 (citations omitted).

       In June 2016, CYF filed a petition for dependency.         In September

2016, an adjudicatory hearing was held, following which, the court

adjudicated S.H. a dependent child but remained in Father’s physical

custody.    These timely appeals followed, along with concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           The trial

court issued a responsive opinion.

       Appellants raise the following issues on appeal, restated for clarity:

       A. Did the trial court err or abuse its discretion in adjudicating
          S.H. a dependent child under subsections (1) and (3) of the
          Juvenile Act?

       B. Did the trial court err or abuse its discretion in appointing
          second Guardian ad litem to represent S.H.?

GAL’s Brief at 4; Father’s Brief at 7. 2

       Appellants challenge the trial court’s dependency adjudication.          Our

Supreme Court set forth our standard of review for dependency cases as

follows:

       [T]he standard of review in dependency cases requires an
       appellate court to accept the findings of fact and credibility
____________________________________________


2
 In his brief Father challenges both the adjudication of dependency and the
appointment of a second GAL as a single question raising both issues.



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      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 M.B., 101 A3d 124, 126-127 (Pa. Super. 2014).

      In relevant part, 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 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;

                                   *      *    *

         (3)   has been abandoned by his parents, guardian, or
               legal custodian[.]

42 Pa.C.S.A. § 6302.

      “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, especially when the lower court finds that the

child was abused while under the custodial parent’s care and control.”    In

Interest of Justin S., 543 A.2d 1192, 1199 (Pa. Super. 1988); see also In

re M.L., 757 A.2d 849 (Pa. 2000) (holding that a child whose non-custodial

parent is ready, willing, and able to provided adequate care to the child


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cannot be found dependent). However, a non-custodial parent’s willingness

is irrelevant if they have never parented the child. In re. B.B., 745 A.2d

620 (Pa. Super. 1999) (“[T]he fact that [father] is completely unknown to

the children prevents his designation as a proper parental caregiver to

them.”).

       Appellants contend that Father was ready, willing, and able; therefore,

S.H. was not a dependent child pursuant to 42 Pa.C.S.A. § 6302(1) and (3). 3

Appellants assert that after an investigation, CYF determined that there were

no concerns with Father, that he resides with his paramour and his two other

children, is employed at the US Postal Service, and maintains a residence.

GAL’s Brief at 23.

       However, Appellants failed to address Father’s lack of involvement in

his child’s life, and CYF did not interview Father’s paramour or the other

children.   See Trial Court Opinion at 5.        While Father may be ready and

willing to parent S.H. he is unable due to his virtual nonexistence in his

child’s life.   As noted by the trial court, “[S.H.] did not realize that the

biological father [was] actually his father and did not know the names of his

two half-siblings who live in the biological father’s home.” Id. at 10.



____________________________________________


3
  CYF did not plead subsection (3) in its dependency petition; however,
“absent prejudice to any party, the court may allow a dependency petition to
be amended if the petition alleges a different set of events or allegations…”
Pa.R.J.C.P. No. 1334(A)(2).



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      Appellants assert that the court’s reliance on In re B.B. is misplaced,

as the non-custodial parent in that case had only seen his children once

since birth, whereas Father in the instant case has seen S.H. as recently as

Easter 2016, and S.H. refers to him as “Dad.” GAL’s brief at 25. We do not

find the facts distinguishable. Father is virtually a stranger to S.H., having

only seen the child ten times in his entire life. The trial court reasoned as

follows:

      The biological father finally testified and admitted that he had
      only visited or spent time with the child approximately ten times
      since the child’s birth four years ago on 12/[]/2011. In addition,
      more than half of these visits were for an hour or less, and
      occurred prior to the child’s second birthday. For perspective,
      and giving him the benefit of doubt on his statement of ten
      parent-child interactions consisting of eight, one-hour visits and
      two overnights in 1,635 days of the child’s life, that is less than
      .0006 or less than [1%] of the child’s life! The biological father
      admitted to CYF that he had no contact with the child for more
      than two and a half years prior to February 2016, at which time
      he had his first of two ever overnight visits with the child. Prior
      to that visit, the mother had to show the child photos of the
      biological father to identify him as his father since the child had
      no recollection or memory of his biological father at that time.
      The mother testified that prior to the February 2016 visit; the
      child had identified one of mother’s prior paramours as being his
      dad. The biological father also significantly admitted that he had
      not recently seen the child for at least ninety days.           The
      biological father claimed that his lack of co-parenting of the child
      was solely due to the mother hiding her whereabouts from him.
      The court did not find the biological father’s testimony credible
      on this issue given the ample evidence that he had access to the
      child support petitions and support orders that provided the
      parties addresses.

Trial Court Opinion at 13.




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      Furthermore, the court did not find credible Father’s explanation for his

lack of visitation. We accept the trial court’s credibility determinations and

do not discern an abuse of discretion.

      In their second issue, Appellants contend that the trial court abused its

discretion in appointing a second guardian ad litem. However, GAL has filed

a motion to dismiss, seeking to withdraw this claim on mootness grounds, as

the case is now closed and the appointment of both GAL’s has ended. “An

issue can become moot during the pendency of an appeal due to an

intervening change in the facts of the case or due to an intervening change

in the applicable law.” In re Cain, 590 A.2d 291, 292 (Pa. 1991).

      Here, the posture of this case has changed.       The Allegheny County

Court of Common Pleas issued an order closing S.H.’s dependency case, thus

confirming custody with Father.         See Order for Termination of Court

Supervision, 4/18/17. We conclude that this issue is moot and, therefore,

grant GAL’s motion to dismiss.        As such, we will not address the second

issue raised in Appellants’ briefs.

      Motion to dismiss granted. Order affirmed.

      Judge Olson joins this memorandum.

      Judge Solano joins this memorandum and files a concurring statement

      in which Judge Olson joins.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2017




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