J-A13029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.C., A MINOR,                         IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: N.C., A MINOR CHILD,

                        Appellant                 No. 1506 WDA 2014


               Appeal from the Order Dated August 13, 2014
            In the Court of Common Pleas of Allegheny County
                 Juvenile Division at No(s): JV-14-001433


BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED JUNE 18, 2015

     N.C. (“Child”) appeals from the order dated August 13, 2014, and filed

August 14, 2014, that found she was not a dependent child under the

Juvenile Act, 42 Pa.C.S. §§ 6301–6365.       The trial court dismissed the

dependency petition filed by the Allegheny County Office of Children, Youth,

and Families (“CYF”) and ordered Child to remain in the custody of T.C., her

stepmother and legal custodian (“Stepmother”), and her father, T.C.

(“Father”). We reverse and remand.

     Child came to the attention of CYF on July 16, 2014, when it received

information that Western Psychiatric Institute and Clinic (“WPIC”) was

refusing to discharge Child to the care of Stepmother and Father. A shelter

hearing was held on July 18, 2014, wherein the trial court appointed
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KidsVoice as Child’s guardian ad litem (“GAL”). Id. at 6–7. On that date,

the trial court entered an order stating:

       THE COURT FURTHER FINDS: [Child] has been in WPIC and was
       ready for discharge. Due to allegations that [Stepmother] (who
       for some reason has custody) and [Father] had physically
       abused [Child]. [Child] is still fearful but does not want to be in
       shelter. She is now on meds. I am going to, reluctantly, let her
       return home but told her that she should call her attorney or
       caseworker or police if she wants out. [M]other lives out of
       state.

       THE COURT FURTHER ORDERS:              Child is to return to
       [S]tepmother and [F]ather. Crisis inhome at the highest level is
       to be in the home. [C]hild is to be removed if she wants to be
       removed. [C]hild is permitted to have contact with [M]other.

Order, 7/18/14.

       CYF filed a dependency petition on July 24, 2014, and an amended

petition on July 25, 2014, alleging Child was dependent pursuant to 42

Pa.C.S. § 6302(1). CYF averred that Child lacked proper parental care and

control by Stepmother and Father, who reside together in Stepmother’s

home. The petitions alleged that Child, born in June of 2000, feared ongoing

physical discipline by both Stepmother and Father.          The petitions also

averred that Child was a victim of child abuse, as defined in the Child

Protective Services Law, (“CPSL”),1 23 Pa.C.S. § 6303.

       On August 13, 2014, the trial court held a dependency adjudication

hearing. CYF presented the testimony of David Sprague, a CYF caseworker
____________________________________________


1
  CPSL, 23 Pa.C.S. §§ 6301–6386. The CPSL was amended effective April
22, 2014, and again on December 31, 2014.



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supervisor, and Latoya Lewis, the Three Rivers Youth Crisis In-Home

Services worker for the family.     N.T., 8/13/14, at 6, 21–22.      The GAL

presented Child’s testimony, in camera; N.J. (“Mother”), who lives in

Atlanta, Georgia, testified by telephone.     Id. at 4, 40–41.     Father and

Stepmother, represented by separate counsel, did not testify. Id. at 28.

      At the close of the testimony, CYF and the GAL asked the court to find

Child dependent under 42 Pa.C.S. § 6302(1) and to give CYF permission to

place Child in foster care. N.T., 8/13/14, at 53–54. Stepmother argued that

CYF had not met its burden of proof with regard to a finding of dependency

under section 6302(1).      Id.   Father, while denying Child’s allegations,

agreed that Child should be placed in foster care, as he did not believe it was

in anyone’s interest for Child to return home. Id. at 54. The GAL, noting

Child’s request to live with Mother, asked that CYF explore that feasability.

Id.

      On August 14, 2014, the trial court entered an order declaring that

Child was not a dependent child under the Juvenile Act.      It dismissed the

dependency petition and directed that Child would remain in the custody of

Father and Stepmother. Order, 8/14/14. On August 22, 2014, the GAL, on

Child’s behalf, filed a motion for reconsideration. On September 15, 2014,




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Child filed a timely notice of appeal2 and a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3

       On appeal, Child raises the following two issues:

          1) Did the Trial Court commit an error of law in dismissing the
             dependency petition regarding [Child], when undisputed
             clear and convincing evidence was offered through
             testimony by [Child], her mother, and other witnesses that
             she was without proper parental care and control, thus
             meeting the standard for dependency under 42 Pa.C.S. §
             6302(1)?

          2) Did the Trial Court abuse its discretion in dismissing the
             dependency petition regarding [Child], when [Child]
             testified that she was repeatedly physically maltreated, did
             not want to return to the family home, and had concerns
             about her safety if Court and CYF oversight ceased to
             continue, and no evidence was offered to dispute her
             testimony?

Child’s Brief at 4.

____________________________________________


2
   While September 13, 2014, was the last day of the appeal period, it fell on
a Saturday; thus the notice of appeal was timely filed on Monday,
September 15, 2014. 1 Pa.C.S. § 1908 (“When any period of time is
referred to in any statute, . . . [when] the last day of any such period shall
fall on Saturday or Sunday, . . . such day shall be omitted from the
computation.”).
3
   On August 27, 2014, the trial court entered an order scheduling a hearing
on the motion for reconsideration for September 24, 2014, but did not
expressly grant the motion during the thirty-day appeal period. Thus, it lost
the authority to rule on the motion. Valley Forge Center v. RIB-IT/K.P.,
693 A.2d 242, 245 (Pa. Super. 1997). On September 24, 2014, the trial
court entered an order stating that it did not consider the motion for
reconsideration due to the appeal. On November 26, 2014, this Court
entered an order directing the trial court to complete and forward the
original record to this Court, citing In re T.S.M., 71 A.3d 251, 261 n.21 (Pa.
2013) (regarding delay in the trial court).



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      We review the relevant testimony at the August 13, 2014 adjudicatory

hearing. Mr. Sprague testified as follows: Child was hospitalized in WPIC

beginning June 22, 2014. N.T., 8/13/14, at 28. While there, Child disclosed

physical abuse by Father and Stepmother. Id. WPIC contacted CYF on July

16, 2014, regarding Child’s discharge plan, indicating that due to the

allegations, WPIC    was unwilling to        discharge   Child   to   Father’s and

Stepmother’s care. Id. CYF obtained an Emergency Custody Authorization

and placed child in a shelter. Id. at 6–7.

      On cross-examination by Stepmother’s counsel, Mr. Sprague testified

as follows:   Mother became incarcerated a few years prior to the hearing.

N.T., 8/13/14, at 10. In anticipation of the incarceration, Mother arranged

for Child and her siblings to live with Mother’s family in Michigan. Id. Child

reported that she was sexually abused by a cousin while she was living in

Michigan. Id. After that incident, Father and Stepmother took Child and her

two younger siblings into their home. Id. at 10–11.

      CYF became involved with Father and Stepmother in the fall of 2013,

at Stepmother’s request for assistance with ongoing housing issues. N.T.,

8/13/14, at 11.   There are eleven children residing in the home, none of

whom has been adjudicated dependent or reported being abused. Id. at 11-

12. CYF remained involved with the family due to chronic issues between

Stepmother and the landlord, and the ongoing possibility of eviction. Id.




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      Upon Child’s return from WPIC, Father and Stepmother were unwilling

to meet with CYF. N.T., 8/13/14, at 15. Child has a history of mental health

issues; she had a prior in-patient admission in 2012 and treatment at the

Center for Traumatic Stress (“CTS”). Id. at 13–14. Child was discharged

from WPIC on July 17, 2014, and was to have outpatient treatment at the

WPIC Center for Children and Families, but Mr. Sprague could not confirm

whether Child was being treated at WPIC. Id. at 13-14.

      On cross-examination by the GAL, Mr. Sprague testified that Mother

was interested in assuming custody of Child, and Child would like to live with

Mother. N.T., 8/13/14, at 19. Father and Stepmother had not responded to

attempts to provide services in the home. Id. at 20.

      Latoya Lewis testified as follows:      Stepmother had rejected the

services of Crisis In-Home Services.    N.T., 8/13/14, at 22.    Recently, Ms.

Lewis and a colleague from Crisis In-Home Services had been unable to

meet with Father and Stepmother, who would not respond to telephone calls

or knocks on the door of the home. Id. at 23. When Ms. Lewis previously

had been in the home, Father and Stepmother precluded Ms. Lewis’s one-

on-one contact with Child. Id. at 23–24.

      On cross-examination, Ms. Lewis testified that when crisis-level in-

home services are court-ordered, the in-home service workers are expected

to be in the home five days each week. N.T., 8/13/14, at 24. In the eight

or nine days prior to the adjudicatory hearing, neither Ms. Lewis or the Crisis


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In-Home Services worker were able to get into the home to provide services.

Id. Ms. Lewis reiterated on cross-examination that she had been unable to

speak with Child alone. Id. at 26. Father knew that Ms. Lewis planned to

speak with Child about the discipline allegations when he refused to allow

Ms. Lewis into the home. Id. at 26-27. Ms. Lewis was last at the home two

weeks prior to the hearing, but a colleague had been in the home after that

time. Id. Child appeared fearful to speak to anyone about the allegations.

Id.

      Child requested to testify in camera. N.T., 8/13/14, at 28. She stated

that she received daily physical abuse by Father and Stepmother in the form

of punches, slaps, and getting “beat down.”      Id. at 29-30.    Father and

Stepmother threw things at her, and hit her with belts, candles, and pots.

Id. at 30-31.   Child felt safe in the home at the time of the hearing, but

feared that the physical beatings would continue when CYF no longer was

involved. Id. at 31-32. Child preferred to move to a foster home. Id. at

32. Child testified that she would like to receive mental health therapy. Id.

She also stated that she told the police about the physical abuse in the

home, but was returned to the home, with CYF services. Id. at 33. Child

testified that all of the children in the home are punched and slapped. Id.

      On cross-examination by Stepmother’s counsel, Child testified that

when she was living with Mother in Atlanta, Children’s Services was not

involved, and she was never in foster care there.      N.T., 8/13/14, at 35.


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When Child was living in Michigan with relatives, her cousin raped her in

June of 2011, and she called Father to come to get her. Id. at 35. Child

wished to live with Mother in Atlanta, as do Child’s two sisters, J. and A. Id.

at 35–36. Child testified that on November 15, 2013, when J. was running

away from Father to escape being hit by a belt, Father dragged J. down a

flight of stairs by her leg and broke her arm. Id. at 36–37.

      The trial court also questioned Child.   Child told the court that Child

lived in Michigan with her cousin, C.J., for one year, while Mother was

incarcerated in Georgia. N.T., 8/13/14, at 37–38. Thereafter, she lived with

Father and Stepmother for four years. Id. at 38–39. Moreover, Child lived

with Mother in Georgia prior to living in Michigan, and had not been in

Mother’s care for the past five years. Id. at 39.

      Mother testified that she has a place to live and would like Child to live

with her in Atlanta. N.T., 8/13/14, at 41–42. Mother admitted that she had

been in prison for eighteen months following a shoplifting conviction.      Id.

She confirmed Child’s testimony that Children’s Services was not involved

when Child resided in Georgia.     Id. at 43–44.     Mother testified that she

became aware of Child’s mental health issues when Child was hospitalized at

WPIC in June of 2014. Id. at 44–45. At that time, Mother discovered that

Child had been hospitalized for mental issues in 2012.      Id. When Mother

took Child and her younger siblings to live in Michigan, Father was precluded

from contact with the children due to prior child cruelty charges against him


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in Georgia. Id. at 46–47. Mother described a prior termination of parental

rights proceeding concerning Child in Pennsylvania, wherein the orphans’

court refused to terminate her parental rights but instead, instructed her to

establish stability in her life in order to seek custody.    Id. at 47.    The

orphans’ court allegedly permitted Mother’s visitation with her three

daughters to be controlled by Stepmother, who thereafter forbade Mother to

have any contact with the children. Id.

      Mother stated that Stepmother’s son and daughter told Mother about

conditions in the home and told her that they hated being there.          N.T.,

8/13/14, at 47–48. Child also revealed to Mother that when Child proceeded

to the police station one night, Father ran after her and took CYF’s telephone

number away from her.          Id. at 49.     Child reported to Mother that

Stepmother and Father had thrown olive oil at her during an altercation on

the night before the adjudicatory hearing. Id.

      Mother testified that she had custody of Child for the first ten years of

Child’s life.   N.T., 8/13/14, at 49–50.   Mother explained that when Father

had beaten her in front of Child and her two siblings, she had obtained a

temporary restraining order against him that included three counts of child

cruelty. Id. at 51–52.     Mother stated that the temporary restraining order

was for a five-year period between August of 2006 and 2011.         Id. at 52.

Mother testified that because Father was precluded from contact with the




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three children, Stepmother misrepresented that Father did not live in the

home. Id. at 52–53.

      In her related issues on appeal, Child contends that the trial court

relied on an incorrect standard of review regarding a finding of dependency.

Child asserts that while the trial court was to consider whether there was

clear and convincing evidence that she was without proper parental care and

control, instead, the trial court improperly disregarded all of the credible and

clear testimonial evidence. Child’s Brief at 20. Child argues that the trial

court could make a dependency determination based on the testimonial

evidence without evidence of actual physical injury, and without a ChildLine

or criminal investigation. Id. at 21 (citing In Interest of R.T., 592 A.2d

55, 57 (Pa. Super. 1991)).      Accordingly, Child urges that the trial court

committed an error of law in misapplying 42 Pa.C.S. § 6302(1).

      Child also avers that the trial court exercised manifestly unreasonable

judgment in ignoring the valid and uncontroverted testimony that Child was

suffering from maltreatment in the home of Stepmother and Father. Child’s

Brief at 27–28. She contends that the trial court’s failure to adjudicate her

dependent was an abuse of discretion. Id. at 28. Similarly, CYF argues that

Child was without proper care and control, and should have been

adjudicated a dependent child.    CYF’s Brief at 8 (citing In re J.C., 5 A.3d

284 (Pa. Super. 2010)).




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      In response, Stepmother maintains that the trial court is charged with

determining the credibility of the witnesses, and its decision was neither a

misapplication of law nor manifestly unreasonable.      Stepmother’s Brief at

11. Father did not file a brief.

      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)).

      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
      statutory definition by clear and convincing evidence. If the

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      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 quotations 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.

      Initially, we address Child’s argument that the trial court incorrectly

stated the burden of proof for finding a child dependent under 42 Pa.C.S. §

6302(1).     The trial court described the burden of proof as including the

following:

      In a dependency hearing, the burden of proof rests upon the
      petitioner, who must prove by clear and convincing evidence
      that proper care and control are not available, and the best
      interests of the child will be served outside of parental
      custody. In re T.M., 689 A.2d 954 (Pa. Super. 1997).

Trial Court Opinion, 12/10/14, at 4 (emphasis added).

      The trial court appears to have grafted an additional requirement, that

“the best interests of the child will be served outside of parental custody,” to

the petitioner’s burden of proof that is not supported by Interest of T.M.

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In fact, this Court stated in that case that a “finding of dependence is not the

same thing as a determination of what is in the best interests of the child;

courts are limited by the restrictive definitions contained in the [Juvenile]

Act in determining when a child is dependent.” Interest of T.M., 689 A.2d

at 955; see also In Interest of Pernishek, 408 A.2d 872, 878 (Pa. Super.

1979) (stating that, in determining whether a child is dependent, the

hearing judge should not ask what are the child’s “best interests” but

whether the child is presently without proper parental care and, if so,

whether such care is immediately available). Thus, to the extent that the

trial court intertwined a best-interest test with the statutory standard for 42

Pa.C.S. § 6302(1), we find that the trial court erred as a matter of law.

      Next, we turn to Child’s argument that the testimonial evidence

established that she indeed was a “dependent child,” as defined in 42

Pa.C.S. § 6302(1).    The trial court provided the following analysis in its

opinion:

            [Child] argues that this “trial court erred as a matter of law
      and/or abused its discretion in disregarding competent and
      unrebutted clear and convincing evidence supporting the
      dependency adjudication of [Child] under 42 Pa.C.S.A. 6302(1).”
      Concise Statement of Matters Complained of on Appeal, section
      1. We disagree. This [c]ourt was not presented with any
      tangible evidence of abuse of [Child] by Stepmother and Father.
      Alternatively, this [c]ourt relied on clear and convincing
      testimony from CYF workers that there were no signs of abuse
      via CYF records, hospital records and/or school records. Despite
      regular visits to [Child’s] home and an investigation into [Child’s]
      allegations, the CYF workers testified that they did not personally
      witness any abuse of [Child] or see signs thereof, nor did [Child]
      share with them that she was being abused.                  In the

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      alternative[,] Ms. Lewis testified that [Child’s] home was
      cooperative and pleasant[,] while Mr. Sprague testified that
      Stepmother and Father did not pose a safety risk.

             While [Child] testified as to physical punishment at the
      hands of her Stepmother and Father, this [c]ourt did not find
      that it rose to the level of abuse. This [c]ourt derived from the
      testimony presented that [Child’s] account of abuse was
      wavering and uncorroborated by any physical or reliable
      testimonial evidence. It was established through the testimony
      of Mr. Sprague, [and] Ms. Lewis that [Child] had ongoing mental
      issues, which she was being treated for. This [c]ourt considered
      the testimony provided regarding Stepmother and Father’s
      irregular participation in the in-home services, and while not
      ideal, that does not rise to the level of being unable to provide
      adequate care for [Child].

           The evidence presented did not warrant an adjudication of
      dependency. . . .

Trial Court Opinion, 12/10/14, at 5.

      Child argues that the trial court inappropriately mixed the evidence

necessary for a determination of child abuse under section 6303 of the CPSL

with the evidence necessary for finding that a child lacked proper parental

care under section 6302(1) of the Juvenile Act. Child’s Brief at 24. Relying

upon Interest of R.T., 592 A.2d at 57, Child contends that there was

sufficient clear and convincing evidence in this matter for the trial court to

conclude that she is a dependent child, based on testimony of the witnesses

and without the need for evidence of physical injuries. Child’s Brief at 21,

24. Child further asserts that the testimonial evidence showed that she was

without proper parental care necessary to her physical, mental, and




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emotional health, and that she was without proper parental care to ensure

that future physical harm would not occur. Child’s Brief at 25.

       In Interest of R.T., this Court explained that the CPSL4 is a

complement to the Juvenile Act. Id., 592 A.2d at 58. The purpose of the

CPSL is “to facilitate the protection of abused children, and to preserve and

stabilize the family life of abused children.”     Id.   Another purpose of the

CPSL is:

       to ensure that each county children and youth agency establish a
       program of protective services with procedures to assess risk of
       harm to a child and with the capabilities to respond adequately
       to meet the needs of the family and child who may be at risk
       and to prioritize the response and services to children most at
       risk.

23 Pa.C.S. § 6302(b).5

       This Court, in Interest of R.T., explained the following:

       Even though the Juvenile Act and the CPSL are complementary
       in nature, neither of the acts provide[s] for an independent
       action of “abuse.” In fact, “we have held that the CPSL does not
       create or include a separate action for child abuse, and, under
       the Juvenile Act, a finding of abuse can only be made as a part
____________________________________________


4
   The CPSL, formerly set forth at 11 P.S. § 2201–2224, was repealed in
1990, and reenacted as Part VII of the Domestic Relations Code, 23 Pa.C.S.
§ 6301-6384. See Interest of R.T., 592 A.2d at 58 n.2 (explaining that its
holding was unaffected by the repeal and reenactment of the CPSL).
5
   Section 6302(b), setting forth the purpose of the CPSL, was not amended
in 2014. The section identifying the definition of child abuse, section
6303(b), and the subsections defining terms relevant to child abuse in
section 6303(a), were twice amended in 2014. As we are focusing on the
trial court’s ruling with regard to section 6302(1) of the Juvenile Act, the
amendments to the CPSL are not relevant to the issues on appeal.



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       of [a] dependency proceeding in which abuse is alleged.” In In
       the Interest of M.B., [514 A.2d 599, 601 (1986)], we stated:

              [T]he issues before the Court in an abuse and
              dependency proceeding are distinct. The proof and
              argument on one would not necessarily match the
              proof and argument for the other. In an abuse case,
              the evidence revolves around the alleged incident of
              abuse, and the decision which must be reached is
              whether that evidence meets the standard defined in
              the Child Protective Services Law.

                    On the other hand, a dependency proceeding
              focuses on whether the child at the time of the
              proceeding is without proper parental care or
              control . . . .

       Therefore, even though “abuse is alleged as part of a
       dependency proceeding, and a court’s finding of ‘abuse’ as
       defined by the CPSL would be sufficient evidence under most
       circumstances to support an adjudication of dependency,” it is
       not determinative in adjudicating a child dependent.          The
       evidentiary burden for a finding of abuse is less stringent under
       the CPSL due to the need for immediate intervention for
       protection of the child. However, as discussed above, under the
       Juvenile Act[,] the court in a dependency hearing must make a
       further determination by clear and convincing evidence that the
       abused child is presently without proper care and control
       necessary for physical, mental, or emotional health or morals.
       11 P.S. § 2222 [now 23 Pa.C.S. § 6381]; In the Interest of
       R.M.R., [530 A.2d 1381 (Pa. Super. 1987)]; 42 Pa.C.S. §
       6302(1).

Interest of R.T., 592 A.2d at 59 (some citations omitted).6

____________________________________________


6
   Recently, in Interest of L.Z., our Supreme Court reviewed the
interrelationship between a dependency action under the Juvenile Act, 42
Pa.C.S. §§ 6301-6375, and a finding of child abuse as defined under section
6303 of the CPSL, 23 Pa.C.S. 6303. The Supreme Court’s main focus
therein was the evidentiary presumption for the identity of the abuser set
forth in section 6381(d) of the CPSL, 23 Pa.C.S. § 6381(d).



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     We agree with Child that the trial court improperly based its finding

that CYF had not proven that Child was dependent under the Juvenile Act on

whether CYF had shown, with “tangible evidence,” that Child suffered child

abuse under the CPSL.        The trial court erred as a matter of law in

determining that Child is not dependent because of insufficient evidence of

child abuse. See In Interest of R.T., 592 A.2d at 58.

     There was an abundance of clear and convincing evidence before the

trial court, through the testimony of Mr. Sprague and Ms. Lewis, that Child

had reported to WPIC that she feared returning to the home of Stepmother,

where she received ongoing physical abuse by Stepmother and Father. After

Father and Stepmother had an opportunity to speak with Child, however,

Child decided to return home. When CYF investigated Child’s allegations and

put Crisis In-Home Services in place, Stepmother and Father refused to

allow the service providers into the home or permit them to speak with Child

outside of their presence.   Child also withdrew and refused to discuss the

matter with the service providers.

     Moreover, at the dependency hearing, Child testified that she

experienced ongoing physical abuse at the hands of both Stepmother and

Father and was fearful that the abuse would continue after CYF no longer

was involved with the family.   Mother also testified that she did not have

custody of Child, and that Stepmother, Child’s legal custodian, had

prevented Mother’s contact with Child.        However, Mother testified that


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Stepmother’s son and his girlfriend had contacted Mother about the physical

discipline in the home of Stepmother and Father.

       We conclude that the trial court’s determinations in this matter are not

supported by the competent evidence in the record.          Interest of L.Z.;

Interest of R.T., 592 A.2d at 57 (stating that we will not overrule the trial

court’s findings if they are supported by competent evidence in the record).

There was ample, clear, and convincing evidence that Child was not

receiving care that was geared to her particularized needs, given her mental

health issues. Nor was Child receiving care that at a minimum, likely would

prevent serious injury to her, in light of the allegations of physical objects

being thrown at her as well as physical beatings and the infliction of mental

stress.7

       Further, both Stepmother and Father refused the services that were

mandated by the court in the shelter care order. CYF’s Brief at 9. Father,

through his counsel, declined to continue to provide care for Child in the

home he shares with Stepmother, which cast Father as unavailable to

provide immediate proper parental care for Child. Id. Thus, proper parental

care and control was not immediately available for Child under an order for

protective services in Stepmother’s home.
____________________________________________


7
  The Juvenile Act defines “serious bodily injury” as “bodily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily
member or organ.” 42 Pa.C.S. § 6302.



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       Additionally, although Mother indicated that she would like to have

custody of Child in Atlanta, she did not present herself, at the time of the

dependency hearing, as immediately prepared to resume legal and physical

custody of Child, especially in view of Child’s ongoing mental health issues.

In fact, Mother testified that the orphans’ court, in a termination of parental

rights proceeding against her in Pennsylvania, had directed her to establish

stability in her life.

       As we have determined that there was clear and convincing evidence

that Child was dependent, we find that the trial court abused its discretion in

dismissing the petition without providing for a disposition. See In re A.B.,

63 A.3d at 349–350; In re D.A., 801 A.2d at 617. The evidence showed

that removal was necessary for Child’s well-being.             This is especially so

given Mother’s testimony that Father did not have custody of Child due to

child cruelty charges filed against him in Georgia. The testimonial evidence

clearly established that Stepmother, as Child’s legal custodian, was

permitting Father to live with Child.

       Additionally, in the July 18, 2014 shelter care order, the court imposed

protective supervision by CYF.       Despite this order, Stepmother and Father

prohibited    service    providers   from   entering   their   home,    refused   all

communication, and prevented Child from speaking with the service

providers outside of their presence. The testimonial evidence showed that

the alternative to removal, permitting Child to remain in the home of


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Stepmother and Father, with court supervision and the provision of services,

would have been unfeasible. See In re A.B., 63 A.3d at 349–350.

     We conclude that the trial court failed to protect Child’s physical,

mental, and moral welfare by ordering Child to remain in the home under

these intolerable conditions.   Thus, we find that the order dismissing the

dependency petition and ordering Child to remain in Stepmother’s home was

an abuse of discretion.   See In re D.A., 801 A.2d at 617; 42 Pa.C.S. §

6351(a).

     Under the circumstances, the removal of Child from Stepmother’s

home is necessary to ensure an appropriate disposition of Child and to

protect her physical, mental, and moral welfare. Accordingly, upon receipt

of this Memorandum, we direct the trial court to immediately remove Child

from the home and place her in the legal and physical custody of CYF, so

that she may be placed in foster care. The trial court should re-visit these

matters at the next permanency review hearing.

     Order reversed. Case remanded for entry of an order consistent with

this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015

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