J-S37001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.H.S., A MINOR     :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                                        :
APPEAL OF: L.S., FATHER                 :         No. 3586 EDA 2014

           Appeal from the Dispositional Order November 18, 2014
            In the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-DP-0002548-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JUNE 16, 2015

      Appellant, L.S. (“Father”), appeals from the order entered in the

Philadelphia County Court of Common Pleas, which adjudicated his minor

daughter, A.H.S. (“Child”), dependent and committed her to the Department

of Human Services (“DHS”). We affirm.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

         On October 27, 2014, DHS received a General Protective
         Service (“GPS”) report alleging that Child’s mother[, S.H.
         (“Mother”),] was found incoherent, on the ground and
         under the influence of marijuana and PCP. Child was
         found unattended in her stroller and was taken by
         neighbors, who called the police. Mother was arrested and
         escorted together with Child to Temple University Hospital
         (“TUH”). Mother refused to provide her name to the
         officers but provided Child’s grandmother’s name and
         telephone.    However, according to DHS’ investigation,
         grandmother appeared as a perpetrator of a separate
         indicated Child Protective Service (“CPS”) report. As a
         result, Child’s grandmother was ineligible to assume
         Child’s care. Mother provided other caregivers’ names
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        [who] were also ineligible. On October 28, 2014, DHS
        obtained an Order for Protective Custody (“OPC”) for
        Child.[1] Child was placed in foster care…, where she
        currently remains. At the Shelter Care Hearing on October
        30, 2014, the court lifted the OPC, maintained Child
        committed to DHS and set November 18, 2014, at 11
        A.M., as the date for Child’s adjudicatory hearing. On
        November 18, 2014, a prehearing conference took place at
        10:30 A.M. without Father and Father’s attorney’s
        participation. Child’s mother, Child’s mother’s attorney,
        DHS’ attorney, and [the] Child [A]dvocate were present at
        the pre-hearing conference. The parties fully agreed to
        adjudicate Child dependent. The case was called at 11:30
        A.M. but the parties were not ready since Father’s attorney
        indicated that Father may be coming and the trial court
        was hearing other cases. [The c]ase was pushed back. At
        1:14 P.M. Child’s adjudicatory hearing began with all
        parties present, including Father’s attorney, except Father
        had not shown up. DHS’ city solicitor presented the full
        agreement reached by the parties, Father’s attorney did
        not object to the agreement since he had no position due
        to Father not being present. The trial court accepted the
        parties’ agreement and stipulation of the facts on the
        petition of adjudication.    Father was granted weekly-
        supervised visitation. Child was adjudicated [dependent]
        based on the present inability of the parents [to care for
        Child]. The adjudicatory hearing finished at 1:23 P.M.,
        without Father even appearing at the bar of the court. On
        November 24, 2014, Father’s attorney filed a Motion for
        Reconsideration alleging that Father is ready, willing and
        able to assume Child’s care and that Father could not
        attend the adjudicatory hearing because he was paying
        child support on another floor, at the same time of the
        hearing.     The trial court denied Father’s…Motion for
        Reconsideration [on December 1, 2014]. On December
        1[5], 2014, Father’s attorney filed a timely notice of appeal
        [and Pa.R.A.P. 1925(a)(2)(i) concise statement of errors
        complained of on appeal], arguing that the court
        committed a reversible error, in finding without clear and
        convincing evidence that Father was not ready and
        available to assume Child’s care. At the permanency

1
  Child was living with Mother at this time. Mother and Father do not reside
together.
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J-S37001-15


         review hearing, on February 3, 2015, the court found
         Father in non-compliance with his permanency plan.

(Trial Court Opinion, filed February 20, 2015, at 1-2) (internal footnotes

omitted).

      Father raises one issue for our review:

         WHETHER THE ADJUDICATION OF DEPENDENCY SHOULD
         BE REVERSED WHERE THE CITY OF PHILADELPHIA FAILED
         TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
         THE CHILD WAS PRESENTLY WITHOUT PROPER PARENTAL
         CARE AND CONTROL?

(Father’s Brief at 7).

      Our standard and scope of review from an adjudication of dependency

is as follows:

         The standard of review which this Court employs in cases
         of dependency is broad. However, the scope of review is
         limited in a fundamental manner by our inability to nullify
         the fact-finding of the [trial] court.    We accord great
         weight to this function of the hearing [court] because [it]
         is in the position to observe and rule upon the credibility of
         the witnesses and the parties who appear before [it].
         Relying upon [the court’s] unique posture, we will not
         overrule [its] findings if they are supported by competent
         evidence.

In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006) (quoting In re D.A., 801

A.2d 614, 617-18 (Pa.Super. 2002) (en banc)).

      Father asserts the court based its decision, to adjudicate Child

dependent, on the parties’ stipulation to the statement of facts in DHS’

dependency petition.     Father argues DHS’ statement of facts focuses

primarily on Mother’s actions on October 27, 2014. Father maintains DHS


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failed to investigate Father as a potential caregiver for Child. Father claims

DHS did not utilize reasonable efforts to locate and interview Father as a

resource. Father concludes DHS did not establish that Child is dependent by

clear and convincing evidence, and this Court must reverse the adjudication

of dependency. We disagree.

      The Juvenile Act defines a dependent child, in pertinent part, as

follows:

           § 6302. Definitions

           “Dependent child.” A child who:

           (1) is without proper parental care or control,
           subsistence, education as required by law, or other care or
           control necessary for [her] 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.      A court may adjudicate a child as dependent if the

child meets the statutory definition by clear and convincing evidence. E.B.,

supra. “[W]here 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., 562 Pa. 646, 650, 757 A.2d 849, 851 (2000).

           If the court finds that the child is dependent, then the
           court may make an appropriate disposition of the child to
           protect the child’s physical, mental and moral welfare,
           including allowing the child to remain with the parents

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        subject to supervision, transferring temporary legal
        custody to a relative or a private or public agency, or
        transferring custody to the juvenile court of another state.

E.B., supra at 1112.

     Additionally:

        In order to preserve an issue for appellate review, a party
        must make a timely and specific objection at the
        appropriate stage of the proceedings before the trial court.
        Failure to timely object to a basic and fundamental error
        will result in waiver of that issue. On appeal, the Superior
        Court will not consider a claim which was not called to the
        trial court’s attention at a time when any error committed
        could have been corrected. In this jurisdiction one must
        object to errors, improprieties or irregularities at the
        earliest possible stage of the adjudicatory process to afford
        the jurist hearing the case the first occasion to remedy the
        wrong and possibly avoid an unnecessary appeal to
        complain of the matter.

In re J.A., 107 A.3d 799, 820 (Pa.Super. 2015) (quoting In re S.C.B., 990

A.2d 762, 767 (Pa.Super. 2010)) (holding mother waived challenge to

court’s failure to conduct hearing prior to appointing medical guardian for

child, where mother did not request hearing at appropriate stage of

proceedings).

     Instantly, the court held a shelter care hearing on October 30, 2014,

which Father attended. At the conclusion of the hearing, the court ordered

Child to remain in the custody of DHS.       The court scheduled the next

proceeding to take place on November 18, 2014, at 11 a.m. in Courtroom M.

Additionally, DHS’ dependency petition expressly informed Father a pre-

hearing conference would occur on Tuesday, November 18, 2014, at 10:30


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a.m. in room 310; an adjudicatory hearing would occur on that date at 11

a.m. in Courtroom M. The dependency petition also stated: “If you do not

attend the pre-hearing conference, decisions about your child may

be made without you.”         (Dependency Petition, filed 10/31/14, at 1)

(emphasis in original).   The dependency petition further advised: “Failure

to appear at this [adjudicatory] hearing may result in the issuance of

a bench warrant for your arrest.” (Id.) (emphasis in original).

     On November 18, 2014, the court held a pre-hearing conference at the

scheduled time.   Father received notice, but he failed to appear.   Mother,

Mother’s counsel, DHS’ attorney, and the Child Advocate attended the pre-

hearing conference. At that time, those parties agreed to adjudicate Child

dependent.    Thereafter, Father’s counsel informed the court that Father

might be on his way to court. The adjudicatory hearing was scheduled for

11 a.m., but the court rescheduled the adjudicatory hearing until later that

afternoon in an effort to accommodate Father.

     The adjudicatory hearing began at 1:14 p.m. Notwithstanding Father’s

receipt of notice and Father’s counsel’s representation to the court that

Father might be on his way to court, Father failed to attend the hearing.

The parties subsequently informed the court they had reached an agreement

to adjudicate Child dependent and to commit Child to DHS’ custody, based

on Mother and Father’s present inability to care for Child.    Significantly,

Father’s attorney did not object to the agreement to adjudicate Child


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dependent. The parties further informed the court that Child (who was 7-

months-old at the time of the hearing) had a hernia that was being treated

at Temple Pediatrics and needed a clothing voucher. The court also heard

Child was safe in foster care and having her needs met.            The Child’s

Advocate and Mother’s counsel both agreed to adjudicate Child dependent.

The court then asked Father’s counsel if he had anything to add. Father’s

counsel   responded:    “No,   Your   Honor.”   (N.T.   Dependency       Hearing,

11/18/14, at 8).    Consequently, the court adjudicated Child dependent by

stipulation of the parties.

      In addressing Father’s complaint on appeal, the trial court reasoned:

          In the Motion for Reconsideration filed by Father’s
          attorney, it was alleged that Father was not present at the
          adjudicatory hearing because he was paying child support
          in the courthouse on another floor. Father’s excuse is
          without any merit. The record established that Father
          knew the exact date and time [at] which the hearing would
          take place since he was present at the shelter care
          hearing.     Even assuming Father was present in the
          courthouse as he claims, he would have had sufficient time
          to pay child support and then attend his Child’s
          adjudicatory hearing.      The office that receives child
          support payments opens at 9:00 A.M. and closes at 4:30
          P.M. The pre-hearing conference began at 10:30 A.M.,
          with the adjudicatory hearing being pushed back to 1:14
          P.M. and finishing at 1:23 P.M. Not only did Father fail to
          attend, but he also failed to introduce evidence of his
          capacity and readiness to assume Child’s custody.
          Furthermore, he was unwilling to cooperate with DHS. The
          only fact stipulated about Father was that he currently
          resides at his aunt’s home. Under these facts and Father’s
          lack of appearance at court, the trial court could not find
          Father to be ready, willing and able to assume Child’s care.
          Child’s safety and proper parental care and control are


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        primary considerations for the trial court to take into
        account.

                                 *    *    *

        [T]he record established that at the pre-hearing
        conference the parties reached a full agreement to
        adjudicate Child dependent due to parents’ present
        inability to assume Child’s care.        Later, during the
        adjudicatory hearing, DHS’ attorney presented to the court
        the parties’ agreement by stating “your honor we have a
        full agreement today for Child, who is seven months old, to
        adjudicate her dependent, commit her to DHS, and
        discharge the temporary commitment. She is currently in
        a foster home…. The basis of the adjudication is present
        inability.” (N.T. 11/18/14, pgs. 3-4). The record further
        establishes that the trial court accepted the parties’
        stipulation without any objection from Father’s attorney.
        Consequently, the court’s adjudication order was entered
        based on a valid agreement of the parties pursuant to
        Pa.R.J.C.P. 1405(A)(1)(6).

                                 *    *    *

        The record left no doubt that prior to making a decision,
        the trial court asked Father’s attorney[,] “do you have
        anything to add?” but Father’s attorney answered “no.”
        (N.T. 11/18/14, pg. 8).      Father’s attorney’s failure to
        object at the appropriate stage of the proceedings failed to
        preserve the issue for appellate review. Consequently,
        Father has waived his right to appeal any of the issues as
        listed on his [concise statement]. Even assuming that
        Father did not waive his [issues], Father’s issues on appeal
        are without merit since the allegations in the dependency
        petition were clear and convincing for the trial court to
        make a determination of adjudication on present inability
        of the parents.

(Trial Court Opinion at 3-4) (some internal citations omitted). We agree that

Father waived his challenge to the court’s adjudication of dependency where

he failed to object to the agreement to adjudicate Child dependent at the


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appropriate stage of the proceedings. See J.A., supra.

      Moreover, Father had ample notice of the scheduled pre-hearing

conference and adjudicatory hearing, but he simply failed to attend.        The

court even pushed back the scheduled adjudicatory hearing to accommodate

Father, but he still did not show.    Father’s complaint on appeal that DHS

failed to investigate Father as a potential caregiver for Child is disingenuous,

where Father had an opportunity to present evidence of his ability to care for

Child at the adjudicatory hearing and waived that chance.

      Furthermore, DHS’ dependency petition alleged that Mother uses drugs

and Child is at risk of further neglect in her care and that DHS had been

unable to assess Father’s ability to care for Child. The court accepted the

facts alleged in DHS’ dependency petition stating, inter alia: (1) on October

27, 2014, DHS received a GPS report alleging Mother was found incoherent

on the ground under the influence of drugs while Child was left unattended

in her stroller; neighbors took Child and called the police; police took Mother

and Child to Temple University Hospital, and police arrested Mother; a foster

care agency assumed care of Child; (2) on October 28, 2014, DHS obtained

an order of protective custody for Child and placed her in a foster home; (3)

on October 30, 2014, the court lifted the order of protective custody and

ordered the temporary commitment to DHS to stand; (4) Mother has a

history of mental illness; (5) Father resides with his aunt and stated he

wanted to care for Child; (6) DHS recommends that Child be committed to


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the care of DHS.          The court determined DHS proved the alleged facts by

clear and convincing evidence.          Based on the parties’ agreement and

Father’s failure to provide evidence of his present ability to care for Child,

the court adjudicated Child dependent. See Pa.R.J.C.P. 1405(a)(1), (a)(6)

(stating at any time after filing of dependency petition any party may

present stipulations or agreements by all parties to court in writing or orally

on record regarding findings of fact to be deemed admitted by parties; or

any other stipulation or agreement found to be appropriate by court);

Pa.R.J.C.P. 1408 (explaining after hearing evidence on dependency petition

or accepting stipulated facts by parties, court shall enter finding by

specifying which, if any, allegations in petition were proved by clear and

convincing evidence).         The record support’s the court’s adjudication of

dependency for Child.2 See 42 Pa.C.S.A. § 6302; E.B., supra. Accordingly,

we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2015



2
  The record shows that at the time of the February 3, 2015 permanency
review hearing Father was completely not compliant with the permanency
plan and believed to be incarcerated.
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