J-S42001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.C., A MINOR,                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: A.C., MOTHER,

                            Appellant                   No. 351 EDA 2015


               Appeal from the Order Entered December 29, 2014
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0001916-2013


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED AUGUST 13, 2015

       A.C., Mother, appeals from the trial court’s order entered December

29, 2014, which removed from Mother’s physical custody L.C. (“Child”), a

daughter born in May of 2013.1 The order transferred Child to the physical

custody of the Philadelphia County Department of Human Services (“DHS” or

“the Agency”) and also ordered Child to remain in the legal custody of DHS. 2

We affirm.

       The trial court set forth the history of this case as follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  On November 7, 2013, Child had been adjudicated dependent under
section 6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301-6365.
2
  A.P., Child’s father, has not filed an appeal from the disposition order, nor
is he a party to this appeal.
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           On November 7, 2013[,] [Child] was adjudicated
     dependent by Master Lynne M. Summers.        [The trial court
     adopted the Master’s recommendation as an order on that same
     date.]

           On February 6, 2014[,] a permanency review hearing was
     held. The [trial court] ordered that [C]hild remain in the custody
     of [M]other at Gaudenzia drug and alcohol treatment program.
     [M]other was ordered not to leave Gaudenzia drug and alcohol
     treatment program with [C]hild under any circumstances.
     Furthermore, the [c]ourt ordered that if [M]other left the drug
     and alcohol treatment program against medical advice – DHS
     would obtain an Order of Protective Custody (OPC). Moreover,
     an OPC would also be obtained if [M]other tested positive for
     drugs. Mother was referred to the Clinical Evaluation Unit (CEU)
     for monitoring.

           The matter was then listed on a regular basis before
     judges of the Philadelphia Court of Common Pleas – Family Court
     Division – Juvenile Branch pursuant to section 6351 of the
     Juvenile Act, 42 Pa.C.S.A. § 6351, and evaluated for the purpose
     of determining or reviewing the permanency plan of [C]hild.

           On December 29, 2014, a Permanency Review Hearing for
     [Child] was [held] before the Honorable Jonathan Q. Irvine[.]

Trial Court Opinion, 3/10/15, at 1-2 (unpaginated).

     At the permanency review hearing on December 29, 2014, DHS

presented the testimony of its social worker, Jocelyn Childs and Norris

Holland, the Juvenile Justice Center (“JJC”) worker assigned to the case.

N.T., 12/29/14, at 5-13. Mother did not testify or present evidence.

     On December 29, 2014, the trial court entered an order removing

Child from Mother’s physical custody and transferring Child to the physical

custody of DHS under section 6351 of the Juvenile Act. Child remained in

the legal custody of DHS. On January 22, 2015, Mother timely filed a notice


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of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      Mother presents the following issue for our review:

      1. Whether the evidence was sufficient to support removal of
      the Minor Child from Appellant, and place her into Agency
      custody[?]

Mother’s Brief at 5.

      Mother contends that DHS failed to meet its burden of proof in

demonstrating by clear and convincing evidence that Child needed to be

removed from Mother’s care and placed in the physical custody of DHS.

Mother has mental health issues, has admitted to using marijuana, and she

was not compliant with services.     Mother’s Brief at 7.    However, Mother

asserts that Child was safe and that Mother was meeting Child’s needs.

Mother alleges that her home was appropriate, and DHS had not observed

any instances where Mother was not properly supervising Child.        Mother

urges that there was “little [evidence] to support any immediate risk to the

[C]hild.” Id. She claims that the evidence was insufficient to support the

trial court’s placement of Child in the physical custody of DHS.

      The Pennsylvania Supreme Court recently set forth our standard of

review in a dependency case as follows:

      “[T]he standard of review in dependency cases requires an
      appellate court to accept 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.” In re R.J.T.,


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      608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
      abuse of discretion[.]

In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).

      Further, we have stated that

      [t]he burden of proof in a dependency proceeding is on the
      petitioner to demonstrate by clear and convincing evidence that
      a child meets that statutory definition of dependency.

In re: G., T., 845 A.2d 870, 872-873 (Pa. Super. 2004) (quotation marks

and citations omitted). 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 Interest of: A.B., A Minor, 63 A.3d

345, 349 (Pa. Super. 2013).     In addition, this Court has stated that “[a]n

abuse of discretion is not merely an error of judgment; if, in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be either manifestly unreasonable or the

product of partiality, prejudice, bias or ill will, discretion has been abused.”

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation

omitted).

      In In re: D.A., A Minor, 801 A.2d 614 (Pa. Super. 2002) (en banc),

we explained the following:

            [A] court is empowered by 42 Pa.C.S. § 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

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      physical, mental and moral 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. § 6351(a).

Id. at 617 (citation omitted). Further, the Court in In re: D.A. stated that

the question of whether a child is lacking proper parental care and control

involves two discrete questions: whether the child is presently without

proper care or control, and, if so, whether such care and control are

immediately available. Id. at 619.

      In addition, we observe the following instruction of our Supreme

Court, as set forth in R.J.T.:

      [W]e must defer to the trial judges who see and hear the parties
      and can determine the credibility to be placed on each witness
      and, premised thereon, gauge the likelihood of the success of
      the current permanency plan. Even if an appellate court would
      have made a different conclusion based on the cold record, we
      are not in a position to reweigh the evidence and the credibility
      determinations of the trial court.

Id., 9 A.3d at 1190.

      The disposition of a child adjudicated dependent is governed by section

6351 of the Juvenile Act, which provides in relevant part as follows:

      (a) General rule.--If the child is found to be a dependent child
      the court may make any of the following orders of disposition
      best suited to the safety, protection and physical, mental, and
      moral welfare of the child:

            (1) Permit the child to remain with his parents,
            guardian, or other custodian, subject to conditions
            and limitations as the court prescribes, including
            supervision as directed by the court for the
            protection of the child.

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           (2) Subject to conditions and limitations as the court
           prescribes transfer temporary legal custody to any of
           the following:

                 (i) Any individual resident within or
                 without this Commonwealth, including
                 any relative, who, after study by the
                 probation officer or other person or
                 agency designated by the court, is found
                 by the court to be qualified to receive
                 and care for the child.

                 (ii) An agency or other private
                 organization     licensed or   otherwise
                 authorized by law to receive and provide
                 care for the child.

                 (iii) A public agency authorized by law to
                 receive and provide care for the child.

           (2.1) Subject to conditions and limitations as the
           court prescribes, transfer permanent legal custody to
           an    individual   resident    in  or    outside    this
           Commonwealth, including any relative, who, after
           study by the probation officer or other person or
           agency designated by the court, is found by the
           court to be qualified to receive and care for the child.
           A court order under this paragraph may set forth the
           temporary visitation rights of the parents. The court
           shall refer issues related to support and continuing
           visitation by the parent to the section of the court of
           common pleas that regularly determines support and
           visitation.

42 Pa.C.S. § 6351(a).

     Moreover,   the     trial   court   is   required   to   make   the   following

preplacement findings:

     (b) Required preplacement findings.-- Prior to entering any
     order of disposition under subsection (a) that would remove a
     dependent child from his home, the court shall enter findings on

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      the record or in the order of court as follows:

            (1) that continuation of the child in his home would
            be contrary to the welfare, safety, or health of the
            child;

            (2) whether reasonable efforts were made prior to
            the placement of the child to prevent or eliminate
            the need for removal of the child from his home, if
            the child has remained in his home pending such
            disposition; or

            (3) if preventive services were not offered due to the
            necessity for an emergency placement, whether such
            lack of services was reasonable under the
            circumstances; or

            (4) if the court has previously determined . . . that
            reasonable efforts were not made to prevent the
            initial removal of the child from his home, whether
            reasonable efforts are under way to make it possible
            for the child to return home; or

            (5) if the child has a sibling who is subject to
            removal from his home, whether reasonable efforts
            were made prior to the placement of the child to
            place the siblings together or whether such joint
            placement is contrary to the safety or well-being of
            the child or sibling.

      The court shall not enter findings under paragraph (2), (3) or (4)
      if the court previously determined that aggravated circumstances
      exist and no new or additional reasonable efforts to prevent or
      eliminate the need for removing the child from the home or to
      preserve and reunify the family are required.

42 Pa.C.S. § 6351(b).

      Thus, the trial court may make an appropriate disposition in order to

protect the child’s physical, mental and moral welfare, including transferring




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temporary custody to a public agency. In re: M.L., 757 A.2d 849, 850–851

(Pa. 2000). Also, this Court has stated:

            Even after a child has been adjudicated dependent,
      however, a court may not separate that child from his or her
      parent unless it finds that the separation is clearly necessary.
      “‘Such necessity is implicated where the welfare of the child
      demands that he [or she] be taken from his [or her] parents’
      custody.’”

In re: G., T., 845 A.2d at 873 (citations omitted) (alterations in original).

      In In the Interest of: A.B., a panel of this Court explained the

following with regard to when a child should be removed from parental

custody:

                  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 re K.B., 276 Pa. Super. 419 A.2d 508, 515 (Pa. Super. 1980)
      (citations omitted). In addition, this Court has stated: “[I]t is
      not for this [C]ourt, but for the trial court as fact finder, to
      determine whether [a child’s] removal from her family was
      clearly necessary.” In re S.S., 438 Pa. Super. 62, 651 A.2d
      174, 177 (1994).

Id. at 349-350. Indeed, “[b]oth Section 6351 and relevant case law state

that the main purpose of the disposition of a depend[e]nt child is to examine

what is in the best interest of that child.” In the Interest of: Z.W., C.C.,




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A.R., and N.S. v. Tioga County Human Services Agency, 710 A.2d

1176, 1178 (Pa. Super. 1998).

      In her appellate brief, Mother relies upon the following four cases: In

Interest of Pernishek, 408 A.2d 872 (Pa. Super. 1979); Rinker Appeal,

117 A.2d 780 (Pa. Super. 1955); In the Interest of Feidler, 573 A.2d 587

(Pa. Super. 1990); and In re: D.A., supra.         However, we conclude that

these cases do not support Mother’s claim on appeal.

      In In re: E.P., a Minor, 841 A.2d 128 (Pa. Super. 2003), a panel of

this Court stated the following:

      [T]his Court has previously interpreted the Juvenile Act to allow
      for the removal of a dependent child from the custody of his
      parents only where there is “clear necessity” for such removal
      and where such removal can be reconciled with the “paramount
      purpose” of preserving family unity. See e.g. In Interest of
      LaRue, 244 Pa. Super. 218, 366 A.2d 1271, 1273 (Pa. Super.
      1976); In Interest of Pernishek, 268 Pa. Super. 447, 408
      A.2d 872, 877 (Pa. Super. 1979); In re Donna W., 284 Pa.
      Super. 338, 425 A.2d 1132, 1134 (Pa. Super. 1981). These
      cases, however, predate the 1998 amendments to the Juvenile
      Act which, as we explain below, altered the purposes of the Act.
      Moreover, this Court has also long held that such necessity for
      removal is implicated where the welfare of the child demands
      that he be taken from his parents’ custody. In re S.M., 418 Pa.
      Super. 359, 614 A.2d 312, 314-315 (Pa. Super. 1992). “When a
      child is . . . being neglected to its detriment, it is the right and
      duty of the state, acting through its courts, to transfer the child’s
      custody to persons who will treat the child in such a manner as
      to foster its well-being and promote its health and happiness.”
      In re Miller, 380 Pa. Super. 423, 552 A.2d 261 (Pa. Super.
      1988) (citations omitted). This view is reflected in the 1998
      amendment to section 6301(b)(1) of the Juvenile Act which
      added an alternative paramount purpose of “providing another
      alternative permanent family when the unity of the family cannot
      be maintained.” 42 Pa.C.S.A. § 6301(b)(1). We agree with the
      Allegheny County Office of Children, Youth and Families (“OCYF”)

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     that by this amendment, part of the General Assembly’s
     implementation of the Adoption and Safe Families Act of 1997
     (“ASFA”), 42 U.S.C.A. § 629 (Public Law 105-89), “the focus of
     the [Juvenile] Act shifted somewhat from its emphasis on family
     unity to an emphasis on the child impacted by a dependency
     adjudication. The amendments, in compliance with the Federal
     legislation, emphasized permanency for children.”

In re: E.P., 841 A.2d at 132-133.

     Mother has cited In Interest of Pernishek for the proposition that,

under the Juvenile Act, a child may not be separated from his parents unless

such separation is clearly necessary. Mother’s Brief at 8. As such, she has

appropriately set forth the standard for removal of the child from her care

under the current law, as cited above.

     In Rinker Appeal, this Court reviewed an appeal from a trial court

order determining that three children were “neglected” under the Juvenile

Court Law, 11 P.S. 243, which was the statutory precursor to the current

Juvenile Act.   As the Juvenile Court Law statute is no longer in effect, we

find Rinker Appeal to be inapplicable to the instant matter.

     In Interest of Feidler, this Court reviewed an appeal from an order

removing two minor children from the home of their parents.       The order

awarded legal and physical custody to the county children and youth

services agency under the Juvenile Act.       The parents argued that the

removal of the children from their home was not clearly necessary.      This

Court found that, based on the limited record before us, there was no clear

and convincing evidence that every reasonable effort had been made to keep


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the family together. Id. at 532-533. However, as set forth in In re: E.P.,

the focus under the Juvenile Act is currently on the well-being of the

dependent child, not on preserving family unity to the child’s detriment. In

re: E.P., 841 A.2d at 132-133.       Moreover, the decision in Interest of

Feidler rested upon the specific facts in that case, which are distinguishable

from the facts herein.       Thus, we find Interest of Feidler to be

unpersuasive.

      Next, in In re: D.A., this Court reviewed a mother’s challenge to a

trial court order that adjudicated her infant daughter a dependent child

under the Juvenile Act and allowed the child to remain in the mother’s

physical custody.   This Court found insufficient evidence to support the

dependency determination under section 6302(1) of the Juvenile Act. The

panel could not conclude that there was clear and convincing evidence that

the child was without proper parental care or control based on conduct of

the mother that placed the health, safety, or welfare of the child at risk.

Accordingly, the panel reversed the trial court’s dependency adjudication

order. In re: D.A., 801 A.2d at 622. We find the ruling in In re: D.A. to be

inapplicable to the instant appeal, as we are not reviewing an appeal from

an order adjudicating a child dependent. Rather, we are reviewing an order

that sets forth the disposition of a child previously found to be dependent.

      Here, our review of the record reflects that, at the permanency review

hearing on December 29, 2014, Ms. Childs testified that Child was one and


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one-half years old and was living in Mother’s home with DHS supervision.

N.T., 12/29/14, at 6. Although Child was doing well, Ms. Childs expressed

concerns   about   Child’s   developmental    behavior   and    Child’s   speech

development being delayed.     Id.   As a result, Ms. Childs stated that DHS

desired for Child to be evaluated. Id. Child had no other special needs or

services and was current on her medical immunizations. Id. at 6-7.

      Ms. Childs further opined that it was inappropriate for Child to remain

in Mother’s home, as Mother was currently noncompliant with her Family

Service Plan (“FSP”) goal objectives. Id. at 7. At Ms. Childs’ most recent

visit to the home on December 16, 2014, Mother stated that she was going

to discontinue her drug and alcohol (“D & A”) program.         Id.   In addition,

Mother admitted to using marijuana.           Id.   While conducting a food

verification on that same date, Ms. Childs observed a box of wine in Mother’s

refrigerator and viewed alcohol bottles on the floor of Mother’s bedroom.

Id.   Ms. Childs expressed that Mother’s use of alcohol and marijuana was

impairing Mother’s ability to parent Child and to render appropriate

supervision.   Id. at 7-8.    Also, DHS admitted into evidence a Clinical

Evaluation Unit (“CEU”) report dated December 18, 2014, which indicated

that Mother had not complied with the court’s recommendation to go to the

CEU for an assessment and that the CEU would like to have her back for an

assessment. Id. at 8; DHS Ex. 1.




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     In addition to addressing drug and alcohol issues, Mother’s FSP goals

included obtaining and maintaining appropriate housing and stabilizing her

mental health. Id. at 8. Ms. Childs testified that Mother stated she was not

receiving therapy for her bipolar disorder diagnosis.       Id.     Ms. Childs

explained that Mother has to follow all recommendations, including taking

her prescribed medicine, in order to stabilize her mental health.    Id. at 9.

Ms. Childs rated Mother’s level of compliance with her FSP objectives as

minimal.   Id.   DHS had placement ready for Child on the date of the

hearing. Id.

     On cross-examination by the child advocate, Ms. Childs testified that

she had no knowledge of Mother taking any drugs other than marijuana. Id.

at 10. Ms. Childs testified that she had not directly observed any specific

instances where Mother was not correctly supervising Child. Id.

     On cross-examination by Mother’s counsel, Ms. Childs stated that

Mother had self-reported smoking marijuana, but Ms. Childs had not

detected any odor of marijuana when she visited the home.            Id.   The

conditions of Mother’s home were suitable for children, and the children in

the home were current on their medical appointments.        Id.   Mother’s two

older boys live with Mother and are in school. Id. at 11.

     Our review of the record also reflects that Mr. Norris Holland testified

that Tuesday, December 23, 2014, was the last time he visited Mother’s

home.   Id. at 11.   At the visit, Child was safe and her needs were being


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met. Id. However, Mr. Holland shared DHS’s concerns regarding Mother’s

use of drugs and alcohol. Id.

      At the conclusion of the permanency review hearing, the trial court

stated the following:

            Based upon the testimony presented in Court today I’m
      following the Department[’]s recommendations.

            No. Weed is not legal yet, and everybody wants to come
      in and say: Oh, it’s okay. You can still smoke weed, drink and
      watch your children. And that’s not working. No.

           I wouldn’t be doing my job if I let a little baby stay at
      home with [a] mom that admitted to smoking weed.

           Yea, drinking, you’re right, drinking is not illegal, but,
      when you take alcohol in a combination with drugs, well, that
      presents a different situation.

            So, if she’s not in drug and alcohol treatment and she’s not
      doing her mental health, so, that combination is dangerous.

            So, that’s what necessitates this.

            The child is committed to the Department of Human
      Services.

N.T., 12/29/14, at 15-16.

      Moreover, in its written opinion, the trial court stated the following:

            In the instant case, the DHS social worker testified that
      [M]other was non-compliant with her FSP goal objectives. The
      [c]ourt ordered [M]other to attend a drug and alcohol treatment
      program. [M]other did enroll in the Gaudenzia drug and alcohol
      program. Subsequently, [M]other left the Gaudenzia drug and
      alcohol program and informed the DHS social worker that she
      was not going to continue in the program.         Furthermore,
      [M]other admitted to the social worker that she was using
      marijuana. Moreover, the social worker did a home inspection of
      [Child’s] residence and observed a box of wine in [M]other’s

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     refrigerator[,] as well as alcohol bottles on [M]other’s bedroom
     floor. (N.T. 12/29/14, p. 7). Additionally, [M]other was ordered
     to go to the CEU but failed to comply. (N.T. 12/29/14, p. 8).
     Lastly, [M]other has untreated mental health issues. [M]other is
     not receiving appropriate therapy for her mental health issues,
     specifically her bipolar disorder. (N.T. 12/29/14, pgs. 8-9).

           A court may not separate a child from a parent even if the
     child has been adjudicated dependent unless the court finds that
     the separation is clearly necessary for the well-being of the child.
     A.N. v. A.N., 39 A.3d 326, 331 (Pa. Super. 2012). In the
     instant case, the [t]rial [c]ourt found that the continuation of
     [C]hild in the home would be contrary to the welfare, safety or
     health of [C]hild. [M]other is not compliant with her drug and
     alcohol treatment program. Furthermore, [M]other is refusing to
     complete the drug and alcohol program. Moreover, [M]other is
     continuing to use illegal drugs and drink alcohol.           Lastly,
     [M]other is not complying with her mental health therapy[.]
     (N.T. 12/29/14, pg[.] 8, 9). The totality of the circumstances
     necessitated the removal of [C]hild from [M]other. The safety of
     [C]hild was at risk due to [M]other’s continued drug/alcohol
     abuse and her untreated mental health issues.

            The [t]rial [c]ourt made reasonable efforts to allow [C]hild
     to remain in [M]other’s custody. The [c]ourt gave [M]other an
     opportunity to participate in a drug and alcohol treatment
     program while retaining custody of [C]hild. [M]other failed to
     complete the drug and alcohol program[,] and tested positive for
     illegal drugs[;] therefore, [C]hild was removed from [M]other’s
     custody.

     Conclusion:

            For the preceding reasons, the [c]ourt finds sufficient
     evidence to support the removal of [C]hild from the custody of
     [M]other[,] and commit [C]hild to the care and custody of the
     Department of Human Services. Furthermore, the court finds
     that its ruling is in the best interest of [C]hild[,] as a result of
     the testimony regarding [C]hild’s safety, protection, mental,
     physical and moral welfare.

          Accordingly, the [t]rial [c]ourt’s [o]rder entered on
     December [2]9, 2014[,] committing [Child] to DHS[,] should
     properly be affirmed.

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Trial Court Opinion, 3/10/15, at 3 (unpaginated).

      After a careful review of the record, we find that the trial court’s

credibility and weight determinations are supported by the competent

evidence of record. Thus, we will not disturb them. In Interest of: L.Z.,

111 A.3d at 1174. We find that the trial court complied with the mandates

of the Juvenile Act in order to protect the best interests of Child in this

matter. Accordingly, we find no abuse of the trial court’s discretion.

      Order affirmed.

      Justice Fitzgerald joins the Memorandum.

      Judge Mundy Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015




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