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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.M                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: N.S.

                                                      No. 805 MDA 2015


               Appeal from the Dispositional Order April 15, 2015
               in the Court of Common Pleas of Lancaster County
              Juvenile Division at No(s).: CP-36-DP-0000231-2014


BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 12, 2015

        N.S. (Mother) appeals from the order of the Court of Common Pleas of

Lancaster County, entered April 15, 2015, that adjudicated her son, D.M.

(Child), born in January of 2010, dependent, committed him to the care and

custody of Lancaster County Children and Youth Social Service Agency

(LCCY), and further ordered that Child’s goal should be reunification with his

long-time caregiver, A.S. (Maternal Aunt). We affirm.

        As of the April 14, 2015 adjudication and disposition hearing, Mother

had given birth to nine children, none of whom were in her legal or physical

custody. (See N.T. Hearing, 4/14/15, at 15). Philadelphia’s Department of

Human Services (DHS) had an extensive history with Mother that dated back
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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to 2003 and included the placement of five of her children in DHS custody.

(See id. at 12, 50). The oldest two children were in the care of DHS when

Mother’s parental rights to them were terminated and they were adopted.

(See id. at 11). Mother’s next three children, K., and twins A. and A. (the

Twins), were adopted by Maternal Grandmother. (See id. at 20-21, 54).

     Mother gave birth to her sixth infant, Child, in January of 2010.

Mother brought Child to Lancaster County sometime in 2011 to stay with

Maternal Aunt, and asked Maternal Aunt to care for Child for only a few

months. (See id. at 6-7). Mother contacted Maternal Aunt periodically but

the frequency of that contact was in dispute. (See id. at 84). Mother’s “few

months” became three years.

     On May 14, 2014, DHS contacted LCCY and requested a courtesy

home visit with Maternal Aunt after learning that Child had been living with

her and that she had been his primary caregiver for three years. (See id. at

12). LCCY conducted a home visit with Maternal Aunt, confirmed that Child

lived with her, and reported that they had no concerns.    LCCY closed the

matter. (See id.).

     Thereafter Mother had three more children (C., A., and G.). In June of

2013, C. and A. entered kinship care with Paternal Niece. Mother had left C.

with a friend and never returned.   (See id. at 55).   DHS placed C. with

Paternal Niece, who was identified as a kinship care resource. (See id. at

22). Paternal Niece began caring for A. after Mother left A. at a daycare,


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and Paternal Niece picked A. up at Mother’s request when daycare personnel

threatened to involve DHS. (See id. at 55).

      DHS had no contact with Mother from the time C. and A. entered

Paternal Niece’s custody in June of 2013 until March of 2014, when Mother

gave birth to G.      (See id. at 71).        Mother placed G. in Maternal

Grandmother’s care shortly after her birth.     (See id. at 56).   Ultimately,

Maternal Grandmother was no longer able to care for G. or the Twins, and

Paternal Niece began to care for them as well and informed the DHS

caseworker of the change.    (See id. at 70-71).    In sum, five of Mother’s

children, C., A., G., and the Twins, remain in kinship care with Paternal

Niece.

      The Lancaster Police Department arrested Maternal Aunt on August 15,

2014. Child had spent three years of his life in Maternal Aunt’s care at this

point. Unable to locate Mother or to identify a father, LCCY placed Child in a

temporary resource home.     On August 18, 2014, following a Shelter Care

hearing, LCCY obtained temporary physical and legal custody of Child. The

adjudication and disposition hearing was initially scheduled for September

22, 2014, but was continued while LCCY attempted to locate Mother. D.R.

(Father), who has a history of drug use and has failed to work with DHS,

was reputed to be Child’s father.    He was ordered to submit to paternity

testing but had not complied by the time of the hearing; nor has he

contacted LCCY or participated in any of the hearings.


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       LCCY located Mother on November 20, 2014, just prior to the hearing

scheduled for November 24, 2014. Mother participated via telephone, but

would not provide the trial court with her current address. (See id. at 67).

The trial court continued the matter at Mother’s request.

       DHS again had no contact with Mother from March of 2014 until late

January of 2015. Mother did not attend any dependency hearings between

June of 2013 and January of 2015. (See id. at 72). Mother had no contact

with any of her children in DHS custody. In January of 2015, DHS provided

Mother a Family Service Plan (FSP) with reunification goals despite Mother’s

lack of any interest in her children for nearly 18 months. (See id. at 57,

61). Mother’s progress toward her FSP goals was inconsistent. (See id. at

57).

       Mother failed to attend the subsequent hearing held on February 9,

2015, and the matter was once again continued. On February 17, 2015, the

trial court continued the matter at the request of Mother, who had missed

her train and arrived late.    On March 17 2015, Mother participated by

telephone, but the matter was continued due to a conflict of interest in her

court-appointed representation.

       The adjudication and disposition hearing was finally convened on April

14, 2015. Child was five-years-old at the time of the hearing. LCCY offered

testimony from DHS caseworker, Ruth Floyd, and DHS social worker, Lenora

Truesdale.   Mother offered the testimony of Patricia Albright, an advocate


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from Every Mother is a Working Mother Network in Philadelphia. Mother did

not testify.

      Mother’s DHS caseworker said she was concerned about returning

Child to Mother because Mother is unemployed, has no housing, did not

attend parenting classes regularly, and is in a relationship with Father, who

has a history of drug use and has failed to work with DHS. (See id., at 58-

59, 66). The caseworker also testified that Mother has been the subject of

twelve DHS investigations, seven of which were determined founded for

neglect and one determined founded for abuse. (See id. at 50-53, 77). The

trial court found Child to be dependent and committed him to the physical

and legal custody of LCCY with a goal of reunification with Maternal Aunt.

      The trial court made the following findings regarding the credibility of

the witnesses:

      While Ms. Albright was very supportive of Mother, the [c]ourt did
      not give much weight to her testimony. She was unable to
      answer any specifics on Mother’s progress. The testimony was
      vague as to updates, goal areas, housing, income, counseling,
      criminal charges, and generally any particulars of Mother’s
      case─including, how many children Mother had in [DHS]
      custody. To the contrary, the [c]ourt found [LCCY] and the
      [DHS] caseworker’s testimony to be extremely relevant and
      informative as to the issues before the [c]ourt. . . .

(Trial Court Opinion 6/05/15, at 5).

      The trial court entered its order on April 15, 2015. Mother filed her

notice of appeal and statement of errors complained of on appeal on May 7,




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2015. See Pa.R.A.P. 1925(a)(2)(i). The trial court filed an opinion on June

5, 2015. See Pa.R.A.P. 1925(a)(1).

         Mother presents the following questions for our review:

               A. Whether the [trial court] lacked adequate evidence that
         [M]other had a finding of aggravated circumstances against
         her[?]


                B. Whether there was insufficient evidence to support the
         [trial court’s] disposition[?]


(Mother’s Brief, at 7).

         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
         determinations of the trial court if they are supported by the
         record, but does not require the appellate court to accept the
         lower court’s inferences or conclusions of law. Accordingly, we
         review for an abuse of discretion.

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

         To adjudicate a child dependent, a trial court must determine that the

child:

         [I]s 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.




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        A dependency hearing is a two-stage process. The first stage requires

the trial court to hear evidence on the dependency petition and determine

whether the child is dependent pursuant to the standards set forth in section

6302.     See 42 Pa.C.S.A. § 6341(a).       If it finds “clear and convincing”

evidence that the child is dependent, the court may move to the second

stage, an adjudicatory hearing where it must make an appropriate

disposition based on an inquiry into the best interests of the child.         42

Pa.C.S.A. § 6341(c); see also In re B.S., 923 A.2d 517, 521 (Pa. Super.

2007). “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 the Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super.

1997) (citation omitted).

        In accordance with the overarching purpose of the Juvenile Act “[t]o

preserve the unity of the family whenever possible,” 42 Pa.C.S.A. §

6301(b)(i), a child will only be declared dependent when he is presently

without proper parental care or control, and when such care and control are

not immediately available. See In the Interest of R.T., 592 A.2d 55, 57

(Pa. Super. 1991). This Court has defined “proper parental care” as “that

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.” C.R.S., supra at

845 (citation omitted).


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      In regard to when a child should be removed from parental custody,

we have stated:

             The law is clear that a child should be removed from her
      parent’s custody and placed in the custody of a state agency
      only upon a showing that removal is clearly necessary for the
      child’s well-being. In addition, this court had held that clear
      necessity for removal is not shown until the hearing court
      determines that alternative services that would enable the child
      to remain with her family are unfeasible.


In Interest of K.B., 419 A.2d 508, 515 (Pa. Super. 1980) (citations

omitted). In addition, we have stated, “it is not for this court, but for the

trial court as factfinder, to determine whether [a child’s] removal from her

family was clearly necessary.” In the Interest of S.S., 651 A.2d 174, 177

(Pa. Super. 1994) (footnote omitted).

      Mother’s first issue questions whether the trial court was prejudiced by

prior aggravated circumstances when reaching its decision. (See Mother’s

Brief, at 11-15). In her brief, Mother states her concern this way:

      And while it is true that the [c]ourt did not specifically cite
      aggravated circumstances as a reason for denying [M]other a
      plan, there was still substantial testimony dedicated to
      determining if aggravated circumstances did exist.            Mother
      believes that there is a possibility that considering this testimony
      in the manner that it did, the court was prejudiced against giving
      [M]other a plan. . . .

(Id. at 12). Mother thus admits that the trial court did not make a finding of

aggravated circumstances, but asks us to reverse the trial court on the basis

that some unspecified evidence regarding aggravated circumstances may

have “prejudiced” the trial court.   Mother misapprehends the function of a


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trial court. The trial court is tasked with hearing the evidence, determining

what part of it is relevant and admissible, and rendering a decision. Absent

an error of law, or an abuse of discretion on the part of the trial court, this

Court is bound by the trial court’s findings.     See In re R.J.T., supra at

1190.     Mother, however, does not allege an error or an abuse of discretion

here, merely the “possibility” that the trial court might have been

prejudiced. We quote the trial court on this issue, with approval:

        Mother argues that the [c]ourt lacked adequate evidence that
        Mother had a finding of aggravated circumstances against her
        and that the [c]ourt erred for basing its decision of no-plan on
        prior aggravated circumstances. Initially, the [c]ourt cannot find
        any indication that [LCCY] ever requested, in its Petition for
        Custody or in any other filing, as required under 42 Pa. C.S.A. §
        6334(b), that the [c]ourt find the existence of aggravated
        circumstances. While the [c]ourt believes that the record does
        establish the existence of aggravated circumstances against
        Mother, the allegation was not properly before the [c]ourt and
        such a finding was never made. Mother is incorrect in her
        assumption that the disposition was based on prior aggravated
        circumstances.    Nowhere in the disposition order does the
        [c]ourt cite aggravated circumstances as its reason to approve
        no-plan for Mother.

(Trial Ct. Op., at 6-7). Our review of the record reveals that the trial court is

correct when it states that LCCY did not request a finding of aggravated

circumstances and that the trial court did not make such a finding. We are

unable to find any evidence that the trial court abused its discretion in the

way in which it considered the question of aggravated circumstances in this

case. Mother’s first claim of error is without merit.




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      In her second issue, Mother questions whether there was sufficient

evidence to support the trial court’s determination. (See Mother’s Brief, at

7). In its opinion, the trial court cites this Court’s decision in In re R.T.,

C.A., K.A., 778 A.2d 670 (Pa. Super. 2001), appeal denied, 792 A.2d 1254

(Pa. 2001), for the proposition that a trial court’s decision to propose “no

plan for reunification can be an appropriate decision, depending on the

factual circumstances.” (Trial Ct. Op., at 6). Mother claims that this cite is

not appropriate in that:

            The evidence presented to the court In re R.T., C.A.,
      K.A., clearly demonstrates a failure on the part of parents to
      remedy the situation and problems that led to placement. The
      family issues and attempts made at reunification were well
      documented and confirmed the parents’ failings. The matter
      also occurred in Lancaster County and was well known to the
      court. In the case of [Child], the testimony of neither the
      caseworker nor the DHS worker substantiates a failure on
      [M]other’s part to complete a plan, as it did clearly in In re R.T.,
      C.A., K.A.

            By comparison, in the case of [Child], the evidence does
      not conclusively demonstrate that [M]other, like the mother In
      re R.T,. C.A., K.A., has an eight[-]year history of being
      provided adequate services, and that she failed to comply with
      those services.    While [M]other does have nine biological
      children, there was no definitive evidence presented at the
      hearing to conclude with certainty that [M]other failed to meet
      objectives of a reunification plan, or that she had been provided
      ongoing services over the course of several years.

(Mother’s Brief, at 15). We disagree, and find the differences between the

cases to be differences without distinction.    In R.T., the agency involved

provided services to the parents over a period of some eight years before

filing for dependency. See In re R.T., supra at 681. In the case before us,


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Mother abandoned Child to a family member just as she abandoned her

previous and subsequent children.        Having abandoned Child, Mother faults

LCCY for failing to provide a plan of reconciliation:

            [LCCY] has never provided services to [M]other. Rather, it
      decided from the outset, and with incomplete information, that
      [M]other would not get a plan to reunify with [Child]. The [trial
      court] then improperly denied [M]other an opportunity for
      reunification on that same incomplete information. Providing
      [M]other a plan does not mean that [Child] is going to languish
      in foster care while he waits for [M]other to complete her
      objectives. [Child] is already in foster care waiting for [Maternal
      Aunt] to complete a plan. In light of all the foregoing, [M]other
      should be provided a plan for reunification.

(Mother’s Brief, at 15).     We disagree and again quote the trial court’s

analysis of this issue, with approval:

            In reaching its dispositional decision, this [c]ourt found the
      [LCCY] caseworker and the [DHS] caseworker to be credible
      witnesses who provided independent, consistent, relevant, and
      persuasive testimony. The [c]ourt did not find the testimony of
      Mother’s witness to be persuasive. She was vague as to any
      specifics of Mother’s case. Further, Mother did not testify and,
      therefore, never even offered an explanation for her conduct.
      She offered no reason for her lack of involvement with [Child].
      In essence, she provided no compelling reason why she is more
      committed to [Child] now than when she left him with [Maternal
      Aunt] four years ago.

             Reunification with the child’s family, when possible, is
      always the preferred permanency placement for a child. The
      [c]ourt advanced this preference when it approved a
      reunification plan for [Maternal Aunt], who has been [Child’s]
      guardian and caretaker for the majority of his life.          While
      [Maternal Aunt] is not [Child’s] biological mother, she filled that
      role for three years and, as [Child’s] aunt, ensures that [Child] is
      reunified with the only family [Child] knows.

            [Child] has spent the majority of his life in the care and
      custody of [Maternal Aunt]. It is in his best interest that the

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      goal of his plan be reunification with the only maternal and
      parental figure in his young life. Children need love, support,
      permanency, and stability. For three years, [Maternal Aunt]
      cared for [Child] after Mother dropped [Child] off at her home.
      She raised him along with her son. She provided for [Child’s]
      physical and emotional needs. She filled the parental void left
      by Mother’s absence in [Child’s] life. To provide Mother with a
      plan given her history and based upon the record would be a
      ridiculous and ludicrous exercise in futility. It is the opinion of
      this [c]ourt, based upon the record and for the reasons placed
      on the record and as set forth herein, that reunification with []
      Mother is not in the best interest of [Child]. [LCCY] should not
      be required to provide Mother with any reunification services.
      The primary goal should be reunification with [Maternal Aunt].

            The record is quite clear. Mother was not given a plan
      based on her significant and ongoing absence from [Child’s] life
      and lack of commitment to him. Her history with [DHS] since
      2003 and the fact that she has failed to parent any of her nine
      children is compelling and supports the [c]ourt’s action in
      denying the Mother a plan for reunification with [Child]. The
      disposition is consistent with the best interest of [Child]. . . .

(Trial Ct. Op., at 8-9) (footnote omitted).

      Mother abandoned Child to Maternal Aunt and had no contact with

Child beyond occasional phone calls for three years.          The evidence to

support this fact is undisputed and it supports the conclusion that Mother’s

abandonment of Child, “place[d] the health, safety or welfare of [] [C]hild at

risk[.]” 42 Pa.C.S.A. § 6302. Our review of the record reveals that the trial

court’s finding that Child is a dependent Child and that his goal should be

reunification with Maternal Aunt, the only caregiver he has ever known, is

based on competent evidence and that there was no abuse of the trial

court’s discretion.

      Accordingly, for the reasons stated, we affirm the trial court’s order.

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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