J-S56032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: D.T., A             :   IN THE SUPERIOR COURT OF
 MINOR                                   :         PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: L.C., MOTHER                 :        No. 771 MDA 2018

                  Appeal from the Order Entered April 11, 2018
             in the Court of Common Pleas of Susquehanna County
              Juvenile Division at No(s): CP-58-DP-0000010-2018

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 20, 2018

     L.C. appeals from the Order adjudicating her minor, biological son, D.T.

(“Child”), born in March 2011, dependent, pursuant to 42 Pa.C.S.A. § 6302.

We affirm.

     The trial court set forth the following procedural and factual history:

     On March 29, 2018, Susquehanna County Children and Youth
     Services (CYS) filed a shelter care application related to … [Child]
     based upon the results of an investigation that revealed: (1) poor
     living conditions in his home that included dog urine and feces on
     the floors; and (2) five separate adult individuals within the home
     testing positive for the use of controlled substances. [Child] was
     residing in the home of his legal guardian, [C.T.], whom [Child]
     considered to be his mother. The [trial] court granted the shelter
     care application.

     A shelter care hearing was conducted on April 2, 2018. The court
     determined that sufficient basis existed to continue the placement
     of [Child]. On April 3, 2018, CYS filed a dependency [P]etition
     relative to [Child]. On April 10, 2018, the court conducted a
     dependency hearing. [Child’s] biological mother, [L.C.], appeared
     at the dependency hearing and was represented by legal counsel.
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       At the [dependency] hearing, the history of [Child] was revealed.
       When [L.C.] discovered that she was pregnant with [Child], she
       had considered having an abortion. [C.T.] was [L.C.’s] close
       friend and convinced her not to have an abortion[,] because [C.T.]
       wanted a child. As a result, [L.C.] gave birth to [Child] and
       thereafter turned him over to [C.T.,] and [Child] considers [C.T.]
       to be his mother. [Child] does have a relationship with [L.C.,] and
       considers her to be an “aunt.” [L.C.] lives in South Carolina and
       she appeared for the dependency hearing. [L.C.] indicated that
       she was willing to take custody of [Child] and transport him back
       to South Carolina. [L.C.] testified that she intended to return
       [Child] to [C.T.] after [C.T.] had straightened her life out.

       Given the short period of time[,] as well as the jurisdictional
       issue,[1] CYS had not investigated [L.C.] as a placement resource.
       CYS advocated continued placement of [Child] in foster care[,]
       while [L.C.] argued no dependency existed[,] as a willing and able
       parent was available to care for [Child, i.e., L.C.]. There was no
       dispute that [C.T.] lacks the ability to provide adequate care for
       [Child]. The [trial] court found [Child] to be a dependent child
       and continued the placement in foster care.

Trial Court Opinion, 6/19/18, at 1-2 (footnote added).

       On April 11, 2018, the court entered the subject Order adjudicating Child

dependent. The Order conferred legal custody to CYS, and directed that Child

shall be placed in the physical custody of L.C. “after finalization of any

____________________________________________


1 As we discuss in detail below, the jurisdictional issue identified by the trial
court involves the Interstate Compact on the Placement of Children (“ICPC”),
set forth at 62 P.S. § 761. The ICPC is an agreement among the states, the
District of Columbia, and the Virgin Islands to cooperate with each other in
the interstate placement of children. See id., at Article I (providing, in
relevant part, that “[e]ach child requiring placement shall receive the
maximum opportunity to be placed in a suitable environment and with persons
or institutions having appropriate qualifications and facilities to provide a
necessary and desirable degree and type of care.”).



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requirements imposed by the [ICPC,]” but, ordering further that, “[p]ending

finalization of the interstate transfer requirements, [] [C]hild shall remain in

his current foster care placement.” Order, 4/11/18, at 3.2 L.C. then timely

filed a Notice of Appeal,3 followed by a Concise Statement of errors complained

of on appeal.

        L.C. presents the following issues for our review:

        1. Did the [t]rial [c]ourt commit an abuse of discretion and
           reversible error by finding that … [Child] was a dependent
           child[,] when the evidence did not establish by clear and
           convincing evidence that [Child] is a dependent child based
           upon the evidence presented at [the dependency] hearing?

        2. Did the [t]rial [c]ourt commit an abuse of discretion and
           reversible error when the [t]rial [c]ourt determined that [Child]
           is a dependent child[,] when the evidence of record established
           that there was a non-custodial parent who was ready, willing,
           and able to provide proper care, supervision, and parental
           control for [Child]?

Brief for Appellant at 3 (issues numbered).

              [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).

____________________________________________


2Additionally, the trial court’s Order stated, inter alia, that Child was “adamant
that he wants to remain in the foster home[,]” Order, 4/11/18, at 6, and a
permanency review hearing would take place in three months. Id.

3   C.T. did not file a separate appeal, nor has she participated in this appeal.

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      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[.]

42 Pa.C.S.A. § 6302.

      This Court has explained that “the dependency of a child is not

determined ‘as to’ a particular person, but rather must be based upon two

findings by the trial court: whether the child is currently lacking proper care

and control, and whether such care and control is immediately available.” In

re J.C., 5 A.3d 284, 289 (Pa. Super. 2010) (citations omitted).

      “The petitioner bears the burden of proof in a dependency hearing, and

must prove by clear and convincing evidence that (1) the child is presently

without proper parental care or control; and (2) such care and control is not

immediately available.” In re R.W.J., 826 A.2d 10, 14 (Pa. Super. 2003)

(citation and internal quotation marks omitted). Further, the Pennsylvania

Supreme Court has held that “where a non-custodial parent is ready, willing[,]

and able to provide adequate care to a child, a court may not adjudge that

child dependent.” In re M.L., 757 A.2d 849, 851 (Pa. 2000). However, a

non-custodial parent’s willingness is irrelevant if she or he has never parented

the child. See In re B.B., 745 A.2d 620, 623 (Pa. Super. 1999) (holding that


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“[t]he fact that [father] is completely unknown to the children prevents his

designation as a proper parental caregiver to them.”).

       While L.C.’s Statement of Questions Involved sets forth two issues, her

Argument section sets forth only one issue, asserting that the trial court erred

because the evidence of record does not support a finding of dependency.

See Brief for Appellant at 8-9. L.C. does not contest that the conditions in

C.T.’s home support a finding of dependency.4 Instead, L.C. argues that “[a]

finding of dependency cannot be made where the non[-]custodial parent is

ready, willing, and able to provide the child with proper parental care and

control.” Id. at 10. L.C. asserts that CYS “did not have any evidence that

[L.C.] was incapable of providing appropriate care, supervision, and control

for … [C]hild.” Id. at 9. According to L.C., “[a]ll of the other evidence of

record showed or tended to show that [L.C.] was capable of providing

appropriate care and control for [Child].” Id. at 11; see also id. (wherein

L.C. contends that the CYS caseworker assigned to the case, Raymond Totten

(“Totten”), “admitted that he had no evidence that [L.C.] is an inappropriate

caregiver or that she was unable to care for … [C]hild.”). According to L.C.,

Totten “advocated for dependency based merely on the fact that he would like

to have more information before placing [] [C]hild with [L.C.,]” id. at 9, which,

L.C. asserts, is not enough.


____________________________________________


4Indeed, L.C. acknowledged at the dependency hearing that Child does “not
have a very good life right now.” N.T., 4/10/18, at 81.

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       The trial court explained its rationale for adjudicating Child dependent

as follows:

       In this case, [L.C.] appeared at the dependency hearing seeking
       to have [Child] released to her custody so that she could remove
       [Child] from the Commonwealth and take him to South Carolina.
       There was no opportunity for CYS to conduct any investigation
       whatsoever as to whether [L.C.] was a ready, willing and able
       caregiver for [Child]. The record established that [L.C.] had a
       limited relationship with [Child,] to the point that [Child]
       considered her to be an “aunt[,]” but there was no other evidence
       presented as to [L.C.’s] ability to adequately provide for [Child].
       Moreover, CYS had no ability to conduct an independent
       investigation and had to rely upon a sister agency in South
       Carolina to do so. Under the ICPC, South Carolina would have to
       approve any “placement” of [Child] with [L.C.] in South Carolina.
       62 P.S. § 761. No such approval had been obtained.

       Moreover, the evidence demonstrated that the goal of
       permanency was promoted by [Child] remaining in Susquehanna
       County. First, [Child] had not finished his school year and the
       dependency [O]rder and placement into a foster home allowed
       him to complete his school year. Second, [L.C.] made clear that
       she did not inten[d] to keep [Child] and that she intended to
       eventually return [Child] to [C.T.] Relocating [Child] to South
       Carolina would not have served to provide permanency for [Child,]
       as he would have been relocated again at some point in time.

       Finally, if the court accepted [L.C.]’s argument and released
       [Child] to [L.C.], then CYS would have lost the ability to monitor
       the situation and assure that [C.T.] was addressing her substance
       abuse problem[,] as well as making her home appropriate for
       [Child]. Upon the termination of the dependency proceeding,
       [L.C.] could have returned [Child] to [C.T.] the following day and
       never actually returned to South Carolina.

       The approach of the majority of state courts to apply the ICPC to
       out-of-state non-custodial parents[5] is best suited to achieve the
____________________________________________


5In this regard, we refer to a separate discussion in the trial court’s Opinion.
See Trial Court Opinion, 6/19/18, at 3-4 (collecting cases).

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      goals of protecting children from abuse and neglect. The [trial]
      court simply lacked the authority to conduct a de facto placement
      of [Child] with [L.C.] in South Carolina without following the
      dictates of the ICPC. Given that a placement review hearing was
      scheduled to occur within 3 months, the parties had time to
      accomplish the following: (1) to assure that [Child] successfully
      completed his school year; (2) to allow [C.T.], whom [Child]
      considered to be his mother, the opportunity to work to resolve
      the outstanding issues that led to the dependency; [and] (3) to
      allow [L.C.] and CYS the opportunity to work with South Carolina
      to verify that she was an appropriate placement resource in the
      event that [C.T.] was unable to achieve substantial compliance.

Trial Court Opinion, 6/19/18, at 4-6 (emphasis and footnote added, footnotes

in original omitted).

      The evidence at the dependency hearing revealed that L.C. had placed

Child with C.T. shortly after his birth in 2011. N.T., 4/10/18, at 44. L.C.

testified that she was essentially a “surrogate mother,” and her intent was

that C.T. would raise Child as his mother. Id. at 58, 61-62, 82. L.C. claimed

to have a verbal agreement with C.T. that if C.T. could not care for Child, L.C.

would care for him until C.T. could. Id. at 61-62. Child has lived with C.T.

since June of 2011. Id. at 54.

      At the time of the dependency hearing, Child was in first grade and had

a history of significant behavioral issues at school involving aggression and

disrespecting adults and authority figures. Id. at 5-7. His negative behaviors

were escalating. Id. at 6. According to the principal at Child’s school, Child

had stated that he did not want to return to his “garbage house.” Id. Child

also had expressed concerns about drug use in the home. Id. at 6-7.




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         In 2018, CYS caseworker Totten received a request from South Carolina

to investigate sexual abuse allegations involving abuse perpetrated against

L.C.’s minor daughter in 2011.       While investigating this allegation, Totten

received an additional report regarding Child’s behavior at school, as well as

issues regarding Child’s housing with C.T. in Pennsylvania, including poor

living conditions, drug use in the home, and the presence of a sex offender in

the home. Id. at 20-21. Totten visited the home and found five adults living

there. Id. All, including C.T., tested positive for methamphetamine. Id. at

21-22. The condition of the home was deplorable, with dog feces and urine

on the floor, no heat, and no food.        Id.   As a result of the conditions,

Pennsylvania State Police took protective custody of Child. Id. at 22. L.C.

claimed not to be aware of the condition of Child’s home or the drug use. Id.

at 65.

         Prior to the dependency hearing, Totten drug tested L.C. Id. at 30. The

test came back positive for methadone and amphetamine.              Id.   Totten

acknowledged that the positive result for amphetamine could possibly be

attributable to diet medication. Id. Additionally, L.C. had a prescription for

methadone. Id. at 30-31. L.C. claimed to have used methadone since 2011.

Id. at 63. She testified that she has been clean from abusing cocaine and

opiates for seven years. Id.

         Totten opined that L.C. could be an appropriate placement for Child, but

he had concerns because he did not have time to study her household, and

because he had previously received a report regarding sexual abuse of L.C.’s

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daughter. Id. at 34. Totten was also aware of an investigation regarding

L.C.’s daughter overdosing on L.C.’s methadone and needing to be treated

with Narcan. Id. at 37. However, Totten believed that investigation would

be closed as unfounded, and further acknowledged that he had no evidence

that L.C. would be an inappropriate caregiver. Id. at 37-38.

      With regard to      the   relationship   between L.C. and     Child, L.C.

acknowledged that she has not physically seen Child since 2013. Id. at 68-

69. Child never mentioned L.C. to his teacher or to a social worker assisting

Child. Id. at 11, 15. Totten inquired of Child whether he knew who L.C. was

by name, and Child informed him he did not, although he did know “Auntie

L.” Id. at 34, 124. L.C. acknowledged that Child knows her as “Auntie L.,”

and stated that she occasionally does a video chat with him. Id. at 61. L.C.

stated that Child knows C.T. as “mommy.” Id. at 78. According to L.C., she

did not want to permanently remove Child from C.T.’s care. Id. L.C. testified

that if C.T. “gets her act cleaned up[,]” L.C. would return Child to C.T.’s care.

Id. at 78-79. Prior to doing so, L.C. stated, she would need to see “physical

proof” that C.T. can provide Child an appropriate living environment. Id.

      In adjudicating Child dependent, the trial court relied, in part, on the

ICPC, believing that the court could not transfer custody of Child to L.C.

without first complying with the ICPC because L.C. lives in South Carolina.

      Relevant to our review, Article III(a) of the ICPC provides as follows:

      No sending agency shall send, bring or cause to be sent or brought
      into any other party state, any child for placement in foster care
      or as a preliminary to a possible adoption unless the sending

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      agency shall comply with each and every requirement set forth in
      this article[,] and with the applicable laws of the receiving state
      governing the placement of children therein.

62 P.S. § 761; see also id. at Article II(d) (defining “placement,” in relevant

part, as “the arrangement for the care of a child in a family, free or boarding

home, or in a child caring agency or institution ….”). Additionally, Article V(a)

states, in relevant part, as follows:

      The sending agency shall retain jurisdiction over the child
      sufficient to determine all matters in relation to the custody,
      supervision, care, treatment and disposition of the child which it
      would have if the child had remained in the sending agency’s state
      until the child is adopted, reaches majority, becomes self-
      supporting, or is discharged with the concurrence of appropriate
      authority in the receiving state. … The sending agency shall
      continue to have financial responsibility for support and
      maintenance of the child during the period of the placement.

Id.

      Under these circumstances, the ICPC would not apply had the trial court

denied CYS’s dependency Petition and conferred custody upon L.C. The court

necessarily would have concluded Child was not dependent, ending its

jurisdiction and supervision of Child.           Accordingly, L.C. would not be a

“placement,” under the ICPC.      This is in contrast to the current situation

wherein the court adjudicated Child dependent and, subject to compliance

with the ICPC, placed Child in the physical custody of L.C.

      Despite the trial court’s reliance on the ICPC, the court also noted its

concern that L.C. was a virtual stranger to Child, and that L.C. intended to

return Child to C.T.’s care once L.C. determined that C.T. was “back on her


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feet.” Child only knew L.C. as “Auntie L.,” and had not physically seen her in

five years. Given the limited contact between Child and L.C., coupled with

L.C.’s expressed desire to return Child to C.T.’s care and the dearth of

information concerning L.C. and her capacity to appropriately parent Child,

L.C. is not a proper parental caregiver who is ready, willing, and able to

provide appropriate care to Child. See In re B.B., 745 A.2d at 623 (where

father was a virtual stranger to the children and had never cared for them,

holding that the trial court properly declared the children dependent, and

emphasizing that although father “says he is willing to provide proper parental

care[,] … he has not shown he is capable of doing so. Rather, he decided

to completely ignore his parental responsibilities altogether ….” (emphasis in

original)).6

       Based upon the foregoing, we conclude that the trial court did not err or

abuse its discretion in entering the Order adjudicating Child dependent.

       Order affirmed.




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6 While L.C. may arguably have the ability to provide appropriate care, as
recognized by the court’s Order placing Child in her custody following
compliance with the ICPC, she is a virtual stranger to Child and has not
parented him since he was an infant. See In re B.B., 745 A.2d at 623
(adopting the trial court’s finding that “father’s choosing to be a stranger to
his children, taking no responsibility for their care[,] and the fact his parental
rights could possibly have been terminated demonstrate proper parental care
is not immediately available from him.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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