J-S37016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: D.D., FATHER,

                            Appellant               No. 3574 EDA 2014


                Appeal from the Order Entered October 27, 2014
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0002411-2014


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

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 07, 2015

       D.D. (“Father”) appeals from the trial court’s October 27, 2014 order

finding A.D. (“Child”), born in June of 2012, a dependent child under section

6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301–6365. That order granted

the dependency petition filed by the Philadelphia County Department of

Human Services (“DHS”) and ordered Child to remain in the legal custody of

DHS, in her foster care placement.1 We affirm.

       The trial court set forth the factual background and procedural history

of this appeal as follows:
____________________________________________


1
     S.C., Child’s mother (“Mother”), has not filed an appeal from the
dependency order, nor is she a party to this appeal. When discussing
Father’s arguments herein, at times we refer to Mother and Father
collectively as “Parents” due to Father’s characterization of the evidence
allegedly presented.
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              The family first became known to DHS on January 29,
       2014, when DHS received a General Protective Services (“GPS”)
       report stating that Child’s sibling was truant and that there was
       little food in the home. (“DHS Dependency Petition”). On
       September 28, 2014, DHS received another GPS report, which
       alleged that the home Child was living in with Father and Mother
       was in foreclosure and that there was no gas or electric service
       in the home.[2] (“DHS Dependency Petition”). The report also
       alleged that electricity has been previously shut off and that
       Mother had reconnected it illegally, and Father and Mother may
       be squatting in the home. (“DHS Dependency Petition”). On
       September 29, 2014, a DHS Social Worker visited the home and
       found that there was no electricity. (N.T. 10/27/14, pgs. 34,
       35), (“DHS Dependency Petition”). Mother testified that the
       electricity was turned off sometime in August and remained off
       throughout October. (N.T. 10/27/14, pg. 83). A Safety Plan
       was implemented for Child to reside with D.P., (“Grandmother”),
       since there was no electricity at Child’s current residence. (N.T.
       10/27/14, pg. 34). On October 14, 2014, DHS learned that
       Grandmother, in violation of the Safety Plan, returned Child to
       Father and Mother on October 10, 2014. (N.T. 10/27/14, pgs.
       38-39), (“DHS Dependency Petition”). On October 14, 2014,
       DHS filed and obtained an Order of Protective Custody (“OPC”)
       and placed Child in foster care. On October 16, 2014, a shelter
       care hearing was held, the OPC was lifted, and the temporary
       commitment to DHS was ordered to stand. At the shelter care
       hearing, Father brought a vial containing an unknown liquid and
       insisted on having that liquid tested. Father was ordered to go
       to the Clinical Evaluation Unit (“CEU”) for a drug screen and
       assessment, which he did not comply with. (N.T. 10/27/14, pgs.
       21, 40).      On October 27, 2014,[3] the adjudication and
       disposition hearings were held[,] and the trial court found clear
       and convincing evidence to adjudicate Child dependent based on
       [Father’s] present inability [to care for Child]. (N.T. 10/27/14,
____________________________________________


2
   While the trial court did not reference the testimony in its procedural
history, Norelia Torres, the Turning Points for Children case manager,
testified that the September 28, 2014 GPS report also alleged drug use by
Mother. N.T., 10/27/14, at 35.
3
   In the interim, on October 20, 2014, DHS filed a dependency petition,
seeking to have the court adjudicate Child dependent.



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      pg. 103). At the adjudication and disposition hearings, Father
      was referred to ARC for appropriate services, re-referred to the
      CEU for a drug screen and dual diagnosis assessment, and
      monitoring to include alcohol. (N.T. 10/27/14, pgs. 13, 103).

Trial Court Opinion, 2/6/15, at 1–2.    On October 27, 2014, the trial court

entered its order finding Child dependent under 42 Pa.C.S. § 6302(1),

granted the dependency petition filed by DHS, and ordered Child to remain

in the legal custody of DHS at her foster care placement.

      On November 26, 2014, Father timely filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).     Father raises the following single issue for our

review:

          A. Whether the trial court erred in adjudicating Child
             dependent based on paragraph (1) of the definition of a
             “Dependent Child” under 42 Pa.C.S.A. §6302, in finding
             that Child lacked proper parental care and control and that
             Father did not have the present ability or appropriate
             housing to provide for Child?

Father’s Brief at 5.

      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 the 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 . . . . We review for
      abuse of discretion[.]

In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citing In re R.J.T., 9

A.3d 1179, 1190 (Pa. 2010)).

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      Father contends that DHS failed to meet its burden of proof, by clear

and convincing evidence, demonstrating that Child was a dependent child.

Father’s Brief at 8.     Father asserts that the only issue identified and

supported by the evidence at the hearing was that the family had a problem

with inadequate housing.    Id.   He avers that he and Mother testified that

they were transitioning from one house to a new house, and they were able

to stay in a hotel during the renovation of their new house.           Id. at 10.

Father also claims that there was no clear necessity for removal of Child

from Parents’ custody.    Id.   In making these arguments, Father suggests

that there was no issue concerning Child being at an imminent risk of harm,

or that Parents did not properly care for her. Id. For these reasons, Father

urges this Court to reverse the trial court’s finding of dependency.

      Section 6302 of the Juvenile Act defines a “dependent child,” inter alia,

as:

      “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 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. § 6302.

      With regard to a dependent child, this Court has explained:

      [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

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      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 public agency, or
      transferring custody to the juvenile court of another state. 42
      Pa.C.S. § 6351(a).

In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002) (en banc).         “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

re A.B., 63 A.3d 345, 349 (Pa. Super. 2013); In re J.C., 5 A.3d at 288.

      “The question of whether a child is lacking proper parental care or

control so as to be a dependent child encompasses two discrete questions:

whether the child presently is without proper parental care and control, and

if so, whether such care and control are immediately available.” In re G.,

T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal quotation marks and

citations omitted). See also In re J.C., 5 A.3d at 289 (citations omitted).

Moreover, the burden of proof “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 at 872.

      This Court has defined “proper parental care” as “that care which (1) is

geared to the particularized needs of the child and (2) at a minimum, is

likely to prevent serious injury to the child.”   In re A.B., 63 A.3d at 349

(quoting In re C.R.S., 696 A.2d 840, 845 (Pa. Super. 1997)).

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      We have also described the considerations regarding when a child

should be removed from parental custody, as follows:

                  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: “It is not
      for this Court, 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).

In re A.B., 63 A.3d at 349–350.

      Further, this Court has described an abuse of discretion not merely as

an error of judgment; rather, 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).

      We address Father’s argument that the trial court abused its discretion

in concluding that DHS sustained its burden of proof for finding Child

dependent under section 6302(1) of the Juvenile Act. The trial court stated

its reasoning as follows:




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             In the instant case, it was established from testimony that
     Child is without proper parental care for her physical, mental,
     and emotional health and such care would not be immediately
     available. Father was aware that the electricity had been turned
     off for at least two and a half months[,] and he failed to take the
     necessary steps to correct it. Father violated the Safety Plan by
     allowing Child to return home even though he had agreed that
     Child would remain with Grandmother because there was no
     electricity in the home.        (N.T. 10/27/14, pg. 34).     Father
     testified that sometime in August he found out that the house
     was in foreclosure and at that time, the electricity was shut off.
     (N.T. 10/27/14, pg. 64). Father testified that he attempted to
     contact the electric company to get the power turned on but the
     electric company refused because of unpaid electric bills. (N.T.
     10/27/14, pg. 64). Father testified that he went to a check
     cashing place to put a deposit towards the electric bill but was
     unsuccessful. (N.T. 10/27/14, pg. 65). Father testified that the
     lease that Mother signed with the landlord in January of 2014
     indicates that it is the tenant’s responsibility to pay for all
     utilities. (N.T. 10/27/14, pgs. 67–68). The DHS social worker
     testified that when she visited the home for a second time, there
     was a generator on the porch but it was not connected and it
     was not providing electricity for the house. (N.T. 10/27/14, pg.
     48). The DHS social worker also testified that Father was
     ordered to the CEU for a dual diagnosis assessment but failed to
     go, even though he had many opportunities to go[,] (N.T.
     10/27/14, pgs. 92–93), and even though Father stated at the
     shelter care hearing that he wanted the vial he brought, which
     was filled with an unknown liquid, to be screened for drugs.
     (N.T. 10/27/14, pgs. 21, 39, 40).           The DHS social worker
     recommends placement because of the lack of appropriate
     housing, concerns about Father using drugs or alcohol, and
     concerns about an untreated mental health issue because of
     Father’s erratic behavior in the courtroom. (N.T. 10/27/14, pgs.
     43, 44, 49, 92). Father brought a vial with liquid in it wanting to
     be tested for drugs. The vial had his name on it and it was
     labeled oxycodone. (N.T. 10/27/14, pg. 95). The DHS social
     worker also testified that during her interactions with Father, she
     smelled a strong odor of alcohol on his person on three
     occasions. (N.T. 10/27/14, pgs. 58, 60). Father testified that
     he has an active drug[-]related matter in criminal court and an
     [sic] active weapon charges. (N.T. 10/27/14, pg. 63). Father
     and Mother rented a home since the OPC was issued but have
     not moved in yet. (N.T. 10/27/14, pg. 21). The DHS social

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      worker visited this new home and observed that the home was
      not appropriate for Child. (N.T. 10/27/14, pg. 21). The DHS
      social worker testified that the home was still under
      construction, there were no kitchen appliances, there was no
      furniture in the home, and the lease she was shown was only
      signed by the landlord.        (N.T. 10/27/14, pgs. 21, 26).
      Furthermore upon questioning by the trial judge, Mother could
      not explain why her last name in the lease was posted with white
      out[,] and the paragraph relating to security deposit indicated
      payments being made for the period of February 1, 2003, to
      January 1, 2004. (N.T. 10/27/14, pgs. 101-103). The DHS
      social worker testified that the home’s current condition is not
      suitable or appropriate for reunification. (N.T. 10/27/14, pg.
      27). The trial court found the DHS and agency social workers
      credible.

             The trial court used its discretion[,] recognized under the
      law[,] to adjudicate Child dependent to protect her from any
      future harm because the trial court found that it is against the
      health, safety, and welfare of Child to remain with Father. The
      testimony and evidence presented established that Father is
      unable to provide proper parental care and control of Child and
      that Father is not presently ready, willing, and able to provide
      appropriate care for Child. Father could not immediately provide
      proper care geared to maintain the child safe, at a minimum,
      likely to prevent serious injury. The trial court found that
      continuation in the home would not be in Child’s best interests
      and reasonable efforts to prevent placement were made.

Trial Court Opinion, 2/6/15, at 3–4.

      Father posits that the trial court made improper credibility and weight

determinations and arrived at improper inferences from the evidence at the

adjudicatory hearing to conclude that Child was dependent because she

lacked proper parental care and control.     Father suggests in his brief that

Parents’ testimony at the hearing supported a finding that within one week

after the hearing, Parents could have moved with Child into a home they

were having renovated, and they could have lived in a hotel until the

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renovations were completed. Father’s Brief at 10. The trial court found that

Parents’ testimony was not credible, and the testimony of the DHS and

agency social workers was credible. Accordingly, the trial court did not give

Parents’ testimony any weight. Trial Court Opinion, 2/6/15, at 4.

      Following our careful review of the record, we conclude that the trial

court’s credibility and weight determinations are supported by competent

evidence in the record. Although the trial court referred to Father’s lack of

proper care and control of Child throughout its opinion, the trial court

included in its discussion a finding that Mother also failed to provide proper

parental care and control for Child.    Trial Court Opinion, 2/6/15, at 3–4.

Moreover, the trial court considered Parents’ testimony that they were

moving to a new home and could temporarily stay in a hotel but rejected

that testimony as not credible. Id. at 4. Thus, the trial court, in its analysis

of section 6302(1), properly considered whether Child was able to receive

proper parental care and control from both parents. N.T., 10/27/14, at 109.

See In re J.C., 5 A.3d at 289 (stating that the dependency of a child is not

determined “as to” a particular person, but rather must be based upon two

findings by the trial court: whether the child is currently lacking proper care

and control, and whether such care and control is immediately available).

      We find no reason to disturb the trial court’s conclusion that DHS

sustained its burden of proof by clear and convincing evidence that Child

lacked proper parental care and control, and that such care and control was


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not immediately available to Child from Parents. Accordingly, we affirm the

trial court order adjudicating Child dependent pursuant to 42 Pa.C.S. §

6302(1), and ordering her to remain in DHS’s legal custody in her foster

care placement.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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