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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.R., A MINOR,                   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA




APPEAL OF: S.R., NATURAL MOTHER

                                                         No. 1713 MDA 2015


               Appeal from the Order Entered September 3, 2015
                 In the Court of Common Pleas of York County
              Juvenile Division at No(s): CP-67-DP-0000167-2015

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 05, 2016

       S.R. (“Mother”) appeals from the order entered on September 3, 2015,

in the York County Court of Common Pleas Family Court, adjudicating

dependent her son, G.R. (born in July of 2015) (“Child”), and removing Child

from the custody of Mother and F.R. (“Father”).1 We affirm.

       On July 14, 2015, York County Office of Children, Youth, and Families

(“CYF”) received a referral due to allegations that Child exhibited symptoms

of drug withdrawal after his birth. At the time of Child’s birth, Mother tested

positive for marijuana, oxycodone, opiates, and fentanyl. Both parents have

a history of substance abuse.          Five days after Child’s birth, Father tested

positive for opiates, and Mother tested positive for oxycodone and opiates.
____________________________________________


1
  Father is neither a party to this appeal nor did he file his own separate
appeal.



*Former Justice specially assigned to the Superior Court.
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On July 29, 2015, CYF filed for emergency protective custody of Child. On

August 4, 2015, an emergency hearing was held, and the trial court placed

Child in the custody of CYF.

      On August 13, 2015, August 20, 2015, and September 3, 2015,

dependency hearings were held. During the hearings, Dr. Bruce Klaskin, an

expert in pain medicine; Dr. Douglas McCracken, Mother’s family physician;

Leah Ketchum, a CYF caseworker; Dr. Thomas Hargest, Father’s family

physician; Dr. Almira Contractor, Child’s pediatrician; Dr. Jonathan Liss, the

Chief of Newborn Medicines and Director of the Neonatal Intensive Care Unit

(“NICU”) at York Hospital; Ms. McWilliams, a registered nurse at York

Hospital; Ms. Beth Garrett, a social worker for York Hospital; Mother; and

Father testified.   On September 3, 2015, the trial court adjudicated Child

dependent and ordered Child was to remain in foster care.

      On October 5, 2015, Mother timely appealed and filed a statement of

errors complained of pursuant to Pa.R.A.P. 1925(a)(2)(i).

      On appeal, Mother raises the following issue:

      Did the trial court err in adjudicating [Child] to be a dependent
      Child and removing him from the care of [M]other without proof
      that she was unable to care for him?

Mother’s Brief at 5.

      We review this matter under the following standard of review:

      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

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         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.

In re R.P., 957 A.2d 1205, 1211 (Pa.Super. 2008) (citations, quotation, and

quotation marks omitted).

         Our Supreme Court has stated:

         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 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).

In re M.L., 562 Pa. 646, 649, 757 A.2d 849, 850–51 (2000).

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

child:

         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. “The 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 (Pa.Super. 2004) (citation omitted).




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            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, quotations, and quotation marks

omitted).

      Mother argues the trial court erred in adjudicating Child to be

dependent absent proof that Mother was unable to care for Child. Mother’s

Brief at 8.   The trial court determined Mother’s history of drug abuse and

continued abuse of prescription medication throughout Mother’s pregnancy

demanded the removal of Child from Mother’s home.           Trial Court Opinion,

filed 10/21/15, at 1-2. The trial court relevantly found:

      At the time of [Child]’s birth, Mother tested positive for
      marijuana, oxycodone, opiates, and fentanyl.              Drug use
      throughout her pregnancy led to [C]hild being born addicted to
      narcotics and suffering through withdrawal after his birth. Five
      days after [C]hild’s birth, Father tested positive for opiates and
      Mother again tested positive for oxycodone and opiates. Both
      parents have stated that they have valid prescriptions, but
      Father refused to execute a release to allow for verification of his
      prescriptions. While Mother has verified some of her
      prescriptions, she continues to test positive for narcotics that she
      is not prescribed.

Id. at 2.

      The trial court was presented with extensive testimony concerning

Mother’s abuse of prescription medication. For instance, Dr. Klaskin testified

Mother was his patient since July of 2011.      N.T., 8/20/15, at 13-14.     Dr.

Klaskin testified he changed Mother’s medications to 10 milligrams of

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oxycodone and removed other prescribed medications after he learned

Mother was pregnant in February of 2015.         Id. at 14-15.    Dr. Klaskin

testified he warned Mother of the dangers of taking medication that was not

prescribed to her and the harm it could do to Child. Id. Dr. Klaskin testified

that, on May 28, 2015, Mother’s drug screen was positive for morphine,

fentanyl,   alprazolam,    hydroxyalprazolam,     oxazepam,      and   heroin

metabolites.   Id. at 15-16.   Following the positive drug test, Mother was

discharged from the medical practice because Dr. Klaskin had not prescribed

these drugs to Mother. Id. at 15. Dr. Klaskin testified the drugs for which

Mother tested positive are powerful opiates, which are harmful to an unborn

baby. Id. at 16.

      Dr. McCracken testified Mother has been his patient since July of 2015.

Id. at 27-28. Dr. McCracken testified that, while Mother was pregnant, he

only prescribed vitamin D to her. Id. at 30. Dr. McCracken testified that,

on July 31, 2015, after Mother gave birth to Child, he prescribed Mother

acetaminophen, buspirone, fentanyl, and oxycodone, and orphenadrine for

her chronic knee pain. Id. at 29-30.

      Dr. Contractor testified that, on August 8, 2015, she became Child’s

pediatrician following Child’s discharge from the NICU. N.T., 9/3/15, at 47.

Dr. Contractor testified Child went through a period of withdrawal from the

time she examined Child on August 8 and August 15.            Id. at 54.   Dr.

Contractor testified Child exhibited withdrawal symptom of sneezing,


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excessive stool, jitteriness, and crying on August 8, 2015. Id.             Dr.

Contractor testified she recommended Mother should not breastfeed Child

because the oxycodone she was taking would be harmful to Child.          Id. at

48-50. Mother could not explain why she tested positive for marijuana when

she gave birth to Child. Id. at 50.

         Dr. Liss was involved in Child’s care while he was hospitalized at the

NICU.      N.T., 9/3/15, at 15-16.      Dr. Liss testified Child had neonatal

abstinence syndrome due to exposure to opiates during Mother’s pregnancy

and Child was experiencing withdrawal from the drugs Mother was taking

while pregnant. Id. at 16-17. Dr. Liss testified Mother testified positive for

opiates and marijuana, neither of which were prescribed to her. Id. at 19-

20.      Dr. Liss testified that, because of the non-prescribed opiates and

cannabis in Mother’s system, he did not authorize Mother to breastfeed

Child.     Id. at 20-21.   Dr. Liss testified Mother acknowledged an opiate

addiction. Id. at 22.

         Ms. Williams testified that, when examining Mother to help her

breastfeed Child, she found a cap syringe in Mother’s bra. Id. at 90. Ms.

McWilliams testified Mother stated she picked up the syringe outside because

she did not want anyone to get hurt. Id. Ms. Garrett testified Mother tested

positive for opiates and oxycodone after the syringe was found in Mother’s

bra. Id. at 91.




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      Ms. Ketchum received a referral involving Child after Child’s birth. Id.

at 96. Ms. Ketchum testified CYF recommends that Mother and Father take

a drug evaluation and Child remain in foster care placement.       Id. at 114.

Ms. Ketchum further requested that Child be adjudicated dependent. Id. at

113-14.

      The trial court did not accept Mother’s explanation regarding her drug

abuse and found her testimony to be “absurd.” Trial Court Opinion,

10/21/15, at 3.   In this regard, the trial court noted Mother testified she

never took illegal drugs and Dr. Klaskin’s testimony Mother tested positive

was wrong. Id. With regard to Ms. McWilliams finding a syringe in Mother’s

bra, Mother claimed she found the syringe in the parking lot and picked it up

so that no one would get hurt. Id. The trial court further noted that, when

Mother tested positive for fentanyl, she indicated Father’s fentanyl patch fell

off him during the night and landed on her shoulder. Id. at 102. However,

the trial court specifically indicated it did not find Mother’s testimony to be

credible; but rather, found the testimony of the doctors, nurses, and

caseworkers to be credible.   Id. at 3-4. Our standard of review does not

permit this Court to make factual findings anew, re-weigh the evidence, or

impeach the credibility determinations of the trial court, absent an abuse of

discretion. See In re R.P., 957 A.2d at 1211.

      After a careful review of the record, we find competent evidence

supports the trial court’s determination that Child is dependent, and that


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placement of Child with CYF is warranted and appropriate. Although Mother

has the desire to care for Child, the trial court did not abuse its discretion in

finding that, due to her continued drug abuse, which places Child’s health

and welfare at risk, Mother is not able to provide the proper care Child

needs. Accordingly, we affirm the trial court’s order adjudicating Child

dependent and ordering that Child remain in foster care.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2016




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