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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                     :     IN THE SUPERIOR COURT OF
H.T. A/K/A H.D., A MINOR                :           PENNSYLVANIA
                                        :
APPEAL OF:                              :          No. 753 MDA 2017
C.D., BIOLOGICAL MOTHER                 :


                Appeal from the Order Dated April 4, 2017,
           in the Court of Common Pleas of Lackawanna County
             Juvenile Division at No. CP-35-DP-0000015-2017


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 19, 2017

     C.D. (“mother”) appeals from the April 4, 2017 order entered in the

Court of Common Pleas of Lackawanna County that adjudicated her

biological daughter H.T. a/k/a H.D. (“minor child”) dependent and, due to

the presence of aggravated circumstances, ordered that no further efforts to

preserve or reunify the minor child with mother were necessary. We affirm.

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

                  Minor child came into the [Lackawanna County
           Office of Youth and Family Services’ (“Agency”)]
           custody following her discharge from the hospital
           subsequent to her birth on February [], 2017.
           Initially, the Agency was seeking immediate custody
           due to [mother]’s history with the Agency in regards
           to domestic violence, drug and alcohol use,
           homelessness, mental health issues, psychiatric
           hospitalizations, and inability to understand how to
           care for a child. [Mother] has been involved with the
           Agency since 2010, at which time [mother] gave
           birth to a child. [Mother]’s rights were voluntarily
           terminated on that child on September 11, 2012.
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                 [Mother] has an IQ score of 64. Case worker
          Jennifer Dunston (hereinafter “Ms. Dunston”)
          testified that [mother] has been diagnosed with PDD
          (pervasive developmental disorder), intellectual
          disability, depression, ODD (oppositional defiant
          disorder), and ADHD (attention-deficit/hyperactivity
          disorder). Since being involved with [mother], the
          Agency has had concerns about [mother]’s cognitive
          and emotional delays. For example, at one time
          [mother] reported to that Agency that she was living
          with two (2) friends but did not know their names or
          where she was living.       In 2010, [mother] met
          someone on the Internet, took a cab to Pittsburgh,
          and upon arrival in Pittsburgh did not have the
          $400.00 to pay the taxi driver.

                 Subsequently, [mother] gave birth to another
          child on February [], 2014 and the Agency again
          became involved. It was reported that [mother] was
          not taking her required medications, and that minor
          child was placed into custody with the Agency
          following a domestic violence incident with her
          paramour with whom she resided, [V.S.]. When that
          child was in custody with the Agency, [mother] was
          inconsistent with services and scheduled visits with
          the child. Following the placement of the minor
          child, [mother] was again homeless and unable to
          maintain housing. Ms. Dunston testified that the
          record notes that [mother] did not have an
          understanding     of   the   child’s    development.
          [Mother]’s rights were involuntarily terminated with
          respect to that child on September 17, 2015.
          [Mother] was not present for that hearing, and her
          whereabouts were unknown.

                [Mother]’s rights were voluntarily terminated
          on a third child on June 2, 2016. [Mother] was again
          homeless, and inconsistent with services provided by
          the Agency and visits with that minor child.
          Subsequently, [mother] gave birth to a fourth child,
          J.T., who was placed in custody of the Agency on
          June 10, 2016. [Mother]’s fourth minor child is
          currently in kinship with his paternal aunt and uncle.


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          Regarding minor child J.T., the Agency was granted
          aggravated circumstances on September 19, 2016
          by the Honorable Judge Chester Harhut, with no
          attempts of reunification.      Stephanie Herne, the
          caseworker that worked specifically with [mother]
          and minor child J.T., testified that [mother] could
          have attended twenty-two (22) visits with J.T. but
          only showed to fourteen (14). Ms. Herne further
          testified that [mother] displayed low empathy,
          required prompts to care for the basic needs of the
          minor child during every visitation, and struggled
          with her own hygiene. Since September, [mother]
          made no progress in terms of her ability to care for
          the minor child.       [Mother] consistently missed
          parenting assessments, and is only at the beginning
          stages with the child at issue.

                 The Agency has continued to offer [mother]
          with services. The Agency was aware of [mother]’s
          pregnancy with the child at issue in our case in
          September of 2016, and attempted to prepare
          [mother] for said child by offering parenting services
          and through working with Scranton Counseling
          Center. While [mother] did participate in a few
          visitations with minor child J.T., she was very
          inconsistent and unable to care for the child on her
          own. [Mother] was not compliant with any services
          until March of 2017. In March 2017, [mother] began
          attending parenting sessions through the Agency and
          Scranton Counseling Center, attended a medication
          management       appointment      and    a    therapy
          appointment, and completed an intake assessment
          at PATH for drug and alcohol.         While [mother]
          completed an intake for drug and alcohol, she was a
          no-call no-show for her first appointment at PATH.

                 The minor child at issue is [mother]’s fifth
          child, and at the time the Agency took custody, the
          father was unknown.        Paternity has since been
          established to be [V.S.]. The Agency still must
          assess [V.S.’s] parenting to assure that he is capable
          to care for the minor child properly. [V.S.] also has
          a history of domestic violence against [mother], and
          was incarcerated for the same in 2014 for a period of


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          one (1) year. The Agency is seeking to reunify the
          minor child with [V.S.], and is not looking to find
          aggravated circumstances against [V.S.]. [V.S.] was
          to begin supervised visitation through the Agency in
          late April.

                 Minor child is currently in placement in kinship
          foster care with [mother]’s cousins [T. and S.B.].
          The minor child is also residing with a biological
          sibling who will be adopted by the [kinship foster
          caretakers].    Minor child was born premature at
          thirty-four (34) weeks, was on a feeding tube and
          could not breathe on her own. Minor child was
          discharged from the hospital on February 28, 2017,
          and placed on vitamins and iron due to being born
          premature.     While in the NICU at the hospital,
          [mother] had unlimited access to the minor child but
          had not visited with the minor child since
          February 20, 2017. Currently, minor child does not
          have any medical issues.

                An adjudication hearing was held on April 4,
          2017, wherein this Court found minor child
          adjudicated     dependent,      custody    placement
          remaining with the Agency. This Court found clear
          and convincing evidence that the parental rights of
          [mother] have been involuntarily terminated with
          respect to another child of [mother], and voluntarily
          terminated with respect to two (2) other children of
          [mother].     This Court also found that this is
          [mother]’s fifth child, and that she has not followed
          recommendations of the Agency for the last
          seven (7)     years.         Therefore,   aggravated
          circumstances exist with minor child []. The Court
          held that [mother] is not obligated to accept, nor is
          the [A]gency obligated to provide, services to
          [mother].

                [Mother] filed the current appeal of our April 4,
          2017 Order on May 4, 2017.                   [Mother]
          simultaneously filed a concise statement of
          errors/matters complained of on appeal pursuant to
          [Pa.R.A.P. 1925(b)] alleging that following a finding
          of aggravated circumstances, this Court erred as a


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            matter of law and manifestly abused its discretion in
            determining that the Agency is not required to make
            efforts to reunify [mother] and minor child.

Trial court opinion, 6/1/17 at 1-5 (citations to notes of testimony omitted).

      Mother raises the following issue for our review: “Whether following a

finding of aggravated circumstances, the trial court erred as a matter of law

and/or manifestly abused its discretion in determining the Agency is not

required to make efforts to reunify biological mother and the [minor] child?”

(Mother’s brief at 6 (capitalization omitted).)

            Our standard of review in dependency cases is well
            established; the standard this Court employs is
            broad. We accept the trial court’s factual findings
            that are supported by the record, and defer to the
            court’s credibility determinations. We accord great
            weight to this function of the hearing judge because
            he is in the position to observe and rule upon the
            credibility of the witnesses and the parties who
            appear before him. Relying upon his unique posture,
            we will not overrule the trial court’s findings if they
            are supported by competent evidence.

R.P. v. L.P., 957 A.2d 1205, 1211 (Pa.Super. 2008) (internal citations,

quotation marks, and brackets omitted).

            Our Supreme Court, in In re M.L., 562 Pa. 646, 757
            A.2d 849, 850-51 (Pa. 2000), stated that a court:

                  is   empowered     by   42   Pa.C.S.[A.]
                  § 6341(a) and (c) to make a finding that
                  a child is dependent if the child meets
                  the statutory definition by clear and
                  convincing evidence. 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


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                  welfare, including allowing the child to
                  remain with the parents 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.
                  42 Pa.C.S.[A.] § 6351 (a).

Id. (citation omitted).

            A dependent child is one 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).

Id. (brackets in original).

            The Juvenile Act, 42 Pa.C.S.[A.] §§ 6301-65, which
            was amended in 1998 to conform to the federal
            Adoption and Safe Families Act (“ASFA”), 42 U.S.C.
            § 671 et seq., controls the adjudication and
            disposition of dependent children.         The policy
            underlying these statutes aims at the prevention of
            children languishing indefinitely in foster care, with
            its inherent lack of permanency, normalcy, and
            long-term parental commitment. Furthermore, the
            1998 amendments to the Juvenile Act, as required
            by ASFA, place the focus of dependency proceedings
            on the child.       Safety, permanency, and the


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              well-being of the child must take precedence over all
              other considerations, including the rights of the
              parents.

Id. at 1217 (internal citations to case law omitted).

      Under the definitions section of the Juvenile Act, an aggravated

circumstance is defined, among other circumstances, as when “[t]he

parental rights of the parent have been involuntarily terminated with respect

to a child of the parent.”    42 Pa.C.S.A. § 6302 (definition of “aggravated

circumstances,” Subsection (7)).

              Pursuant to the Juvenile Act, if a court finds that
              aggravated circumstances exist in a given case, the
              court must then “determine whether or not
              reasonable efforts to prevent or eliminate the need
              for removing the child from the home or to preserve
              and reunify the family shall be made or continue to
              be made . . . .” 42 Pa.C.S.A. § 6341(c.1). A court
              may end reasonable efforts at its discretion.” See
              In re A.H., 2000 PA Super 357, 763 A.2d 873, 878
              (Pa. Super. 2000).

In the Interest of L.V., 127 A.3d 831, 839 (Pa.Super. 2015); accord R.L.,

957 A.2d at 1217 (finding that the existence of an aggravated circumstance

permits a trial court to suspend efforts at reunification).

      Here,    mother    neither   disputes   the   trial     court’s     dependency

adjudication nor its aggravated circumstance finding.                   Mother’s sole

contention is that the trial court abused its discretion in determining that the

Agency is not required to make reunification efforts. We disagree.

      Following a hearing on this matter, where two Agency caseworkers

and mother testified, the trial court explained its findings of dependency and


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aggravated circumstances and its decision to order that no further efforts to

preserve or reunify the minor child with mother were necessary, as follows:

           Based upon my review of the testimony that was
           provided here today, there’s no question that the
           Agency has met by clear and convincing evidence
           that an aggravating circumstance does exist, that
           being [mother] had one other child wherein her
           parental rights were involuntarily terminated.

           The next step would be as to what we do subsequent
           to that. And the Court has made additional findings
           as part of the record here today, that being that
           there’s a seven year history that the Agency has with
           [mother].

           [Minor child] is her fifth child and made reference to
           the fact that one child, her rights were involuntarily
           terminated. There were two others where her rights
           were voluntarily terminated, and a 4th child, [J.T.]
           the third, who was born on May [], 2016, that
           aggravating circumstances existed in that particular
           case with no efforts to reunify child with mother.

           Also, that there is evidence that mother has a history
           of mental illness, which she admitted to on the stand
           today. That there is inconsistent stable housing,
           even though there were periods that there were, but
           there’s still over the seven year period that there’s
           [sic] inconsistencies with regards to stable living
           conditions.

           There’s also a history wherein [mother] did not or
           could not follow the recommendations of the Agency
           over the past seven years. Albeit that there has
           been some effort over the last month. I don’t think
           that’s enough with regards to this particular case
           involving [minor child].

Notes of testimony, 4/4/17 at 79-80.




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      We have carefully reviewed the record in this case.        As the record

supports the trial court’s factual findings, we discern no abuse of discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2017




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