J-S08044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.N., Minor Child                   :          IN THE SUPERIOR COURT OF
                                           :                PENNSYLVANIA
                                           :
                                           :
                                           :
                                           :
APPEAL OF: J.L., Legal Custodian           :   No. 1352 WDA 2015

                Appeal from the Order entered August 21, 2015
             in the Court of Common Pleas of Washington County,
                 Domestic Relations Division, No(s): DP 131-15

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 19, 2016

     J.L.    (“Custodian”)1   appeals   from   the    Order   of   Adjudication   of

Dependency and Disposition of minor male child, B.N. (“Child”), born in

October 2007, pursuant to 42 Pa.C.S.A. § 6302. We affirm.

     In its Opinion, the trial court aptly summarized the factual and

procedural history of this case, which we adopt for the purpose of this

appeal. See Trial Court Opinion, 9/30/15, at 1-3.

     Relevantly, in July 2015, the Washington County Children and Youth

Services Agency (“CYS”) filed a Petition for Adjudication of Dependency after

receiving two separate referrals regarding Child’s safety.         On August 13,

2015, Juvenile Hearing Officer John Richards (“Master Richards”) conducted

a hearing.      Master Richards recommended that Child be adjudicated



1
 Custodian is Child’s legal custodian pursuant to a Custody Order entered in
Westmoreland County. Although Custodian is not Child’s biological father,
he has been taking care of Child for most of Child’s life.
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dependent, removed from M.L.N.’s (“Mother”) home and placed in foster

care.    Master Richards found that Mother’s home was unsafe due to her

continued drug use, and that Custodian was not a ready, willing, and able

parent for Child.    The trial court adopted Richards’s recommendation, and

entered an Order of Adjudication of Dependency and Disposition on August

21, 2015. Custodian filed a timely Notice of Appeal and a Pennsylvania Rule

of Appellate Procedure 1925(b) Concise Statement.

        On appeal, Custodian raises the following questions for review:

        I. Whether the trial court committed an abuse of discretion and
        erred as a matter of law by improperly adjudicating [Child]
        dependent pursuant to 42 Pa.C.S.[A.] § 6302[,] stating that
        [Child] was currently without proper parental care, control, and
        subsistence[?]

        II. Whether the trial court committed an abuse of discretion and
        erred as a matter of law by improperly adjudicating [Child]
        dependent pursuant to 42 Pa.C.S.[A.] § 6302[,] when the court
        utilized the “best interest of the child factors” as a basis for a
        finding of dependency[?]

        III. Whether the trial court improperly removed [Child] from
        [Custodian’s] care when the evidence does not support a finding
        of clear necessity[?]

Custodian’s Brief at 6.

        Because Custodian’s first two claims relate to the trial court’s

application of the law regarding the adjudication of dependency, we will

address them together. In his first claim, Custodian argues that CYS did not

satisfy its burden of proving that he is not ready, willing and able to provide

adequate care for Child. Custodian’s Brief at 11, 13. Custodian claims that



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he now has a new home, and that CYS refused to inspect the residence to

determine whether it was suitable for Child. Id. at 13-14. Custodian also

asserts that Child’s reluctance to return home is based solely on the

economic advantages of the foster care placement, but that Child has not

indicated that that he feels unsafe with Custodian. Id. at 15. In his second

claim, Custodian argues that the trial court improperly based its dependency

adjudication on a best interest of the child standard. Id. at 16-18.

      We apply the following standard of review in dependency cases:

      We must accept the facts as found by the trial court unless they
      are not supported by the record. Although bound by the facts,
      we are not bound by the trial court’s inferences, deductions, and
      conclusions therefrom; we must exercise our independent
      judgment in reviewing the court’s determination, as opposed to
      its findings of fact, and must order whatever right and justice
      dictate. We review for abuse of discretion. Our scope of review,
      accordingly, is of the broadest possible nature. It is this Court’s
      responsibility to ensure that the record represents a
      comprehensive inquiry and that the hearing judge has applied
      the appropriate legal principles to that record. Nevertheless, we
      accord great weight to the [trial] court’s fact-finding function
      because the [trial] court is in the best position to observe and
      rule on the credibility of the parties and witnesses.

In re C.M.T., 861 A.2d 348, 351 (Pa. Super. 2004).           “Additionally the

master’s report and recommendation, although only advisory, are to be

given the fullest consideration, particularly on the question of credibility of

witnesses, because the master has the opportunity to observe and assess

the behavior and demeanor of the parties.” In re W.M., 41 A.3d 618, 622-

23 (Pa. Super. 2012).




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      The trial court set forth the relevant law regarding an adjudication of

dependency, and determined that Child is presently without parental care

and control, and that such care is not immediately available. 2      See Trial

Court Opinion, 9/30/15, at 4-10. Upon our review, we conclude that there is

adequate support in the record for the trial court’s decision to adjudicate

Child dependent, and we adopt the trial court’s Opinion for the purpose of

this appeal. See id.

      In his third claim, Custodian contends that the trial court improperly

removed Child from his care, as removal was not clearly necessary for

Child’s well-being. Custodian’s Brief at 18. Custodian argues that there was

no evidence presented that his new home would present a risk to Child’s

safety, health, or welfare.   Id. at 19.   Custodian claims that CYS did not

inspect his new home to determine whether it would be satisfactory.        Id.

Additionally, Custodian asserts that the trial court failed to determine

whether there were any available alternatives to prevent Child’s removal

from the home. Id.

      “[A]fter a child has been adjudicated dependent, [] a court may not

separate a child from his [] parent unless it finds that the separation is

clearly necessary.     Such necessity is implicated where the welfare of the

child demands that he be taken from his parents’ custody.” In re G., T.,


2
  With regard to Custodian’s claim that the trial court applied the incorrect
standard, we note that the trial court never refers to Child’s “best interests”
in its analysis of the dependency adjudication.


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845 A.2d 870, 873 (Pa. Super. 2004).        Additionally, a lack of preventive

services   may   be   reasonable   in    circumstances   requiring   emergency

placement. See 42 Pa.S.C.A. § 6351(b)(3) (stating that prior to entering a

disposition order, the trial court must enter findings “if preventive services

were not offered due to the necessity for an emergency placement, whether

such lack of services was reasonable under the circumstances[.]”).

      Here, the trial court adopted Master Richards’s determination that

Custodian (1) was not able to provide a safe or stable environment for Child;

and (2) did not understand the Custody Order requiring him to supervise all

visits between Child and Mother. See Trial Court Opinion, 9/30/15, at 11.

The trial court also found that Custodian showed a disregard for Child’s

safety by returning Child to Mother when Custodian became homeless rather

than contacting CYS. See id. The trial court’s findings are supported by the

record.    Thus, the health, safety, and welfare of Child demanded a

separation from Custodian, and Custodian’s final claim is without merit. See




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id.; see also In re G., T., 845 A.2d at 873.3

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




3
   Here, after receiving a referral regarding Custodian’s eviction and
homelessness, CYS requested emergency shelter care for Child. The trial
court granted CYS’s request and allowed Child to be placed in foster care.
Master Richards conducted the shelter hearing on July 23, 2015, and
granted CYS’s Petition. See Trial Court Opinion, 9/30/15, at 2; see also
Master’s Recommendation, 8/13/15, at 2. At that time, Custodian was not
able to suggest alternative, suitable caretakers for Child. See Trial Court
Opinion, 9/30/15, at 2. Further, at the time of the dependency hearing on
August 13, 2015, Custodian stated that he had only been living in the new
residence for one week. See N.T., 8/13/15, at 45-46. Thus, at the time
Child was removed from Mother’s residence and the Emergency Shelter
Order was granted, Custodian was still homeless and unable to provide Child
with a stable living environment.       Moreover, contrary to Custodian’s
argument, and as noted above, the trial court found clear necessity to place
Child in foster care based on Custodian’s actions of returning Child to
Mother.


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