J-A03039-19

                                  2019 PA Super 101

    IN THE INTEREST OF: T.M.A.,                :   IN THE SUPERIOR COURT OF
    A MINOR                                    :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: ALLEGHENY COUNTY                :
    OFFICE OF CHILDREN, YOUTH                  :
    AND FAMILIES                               :   No. 1147 WDA 2018


                 Appeal from the Order Entered July 19, 2018
              in the Court of Common Pleas of Allegheny County
               Family Court at No(s): CP-02-DP-0000570-2017

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                               FILED MARCH 29, 2019

        Allegheny County Office of Children, Youth and Families (CYF) appeals

from the order entered July 19, 2018, wherein the juvenile court adjudicated

minor child T.M.A. dependent pursuant to 42 Pa.C.S. § 6302(6) of the

Juvenile Act. We affirm.

        T.M.A. was born in May 2001.               At the time of the dependency

adjudication, T.M.A. was 17 years old.             T.M.A.’s mother is L.M. (Mother).

T.M.A. has long believed that a man named M.A. was her father, despite

Mother’s knowledge that genetic testing in 2004 ruled out M.A.’s paternity.

The record does not reveal when T.M.A. learned M.A. was not her father, but

when she found out, this issue became one source of conflict between T.M.A.



____________________________________________




*   Retired Senior Judge assigned to the Superior Court.
J-A03039-19


and Mother. Mother named another man, R.H., as T.M.A.’s father, but his

paternity has not been legally established.1

       The instant matter2 arose on June 18, 2018, when M.A.’s mother, P.A.

(Petitioner), whom T.M.A. considers to be her grandmother, filed an

application to file a private petition of dependency regarding T.M.A. pursuant

to Pa.R.J.C.P. 1320 (“Any person, other than the county agency, may

present an application to file a private petition with the court.”).   Petitioner,

proceeding pro se, utilized the form provided by the juvenile court, which

combined the Pa.R.J.C.P. 1320 application and the dependency petition in

one document. See generally Application to File Private Dependency
____________________________________________
1 Mother testified that R.H. has been incarcerated since 2003 and she knew
he was T.M.A.’s father “from the beginning,” but she was “just a kid” and
R.H. “had a woman.” N.T., 7/18/2018, at 8. CYF informed the juvenile
court that it sent R.H. a letter informing him that someone had named him
as a father of a child and requested that he contact CYF. Juvenile Court
Opinion, 9/12/2018, at 5 n.4.

2 This was not the family’s first experience with juvenile court. In connection
with a delinquency matter, T.M.A. was placed in a juvenile detention center
and later released in May 2017. Upon her release, CYF placed T.M.A. in
foster care and filed a dependency shelter care application because T.M.A.
initially refused to reside with Mother. Shelter Care Application, 5/7/2017,
at 3. At the shelter care hearing, the juvenile court ordered T.M.A. to return
to Mother with the caveat that she remain on home detention to comply with
her probation pending electronic home monitoring. Shelter Care Order,
5/15/2017, at 1. CYF filed a dependency petition, alleging that T.M.A. was a
dependent child because of her initial refusal to return home to Mother, her
pending juvenile delinquency and need for electronic home monitoring, and
her declining grades and attendance at school.            Dependency Petition,
5/17/2017, at 3. However, CYF withdrew the petition with the agreement of
all parties, and the juvenile court dismissed the matter on June 8, 2017.
Closure/Withdrawal/Dismissal of Juvenile Section Child Protection Matter,
6/8/2017, at 1.


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Petition (Application) and Private Dependency Petition (Petition), 6/18/2018;

Pa.R.J.C.P. 1330 (authorizing the filing of a dependency petition at any

time).    On the Application and Petition form, Petitioner checked a box

indicating her belief that T.M.A. was “without proper parental care or

control” pursuant to subsection (1) of the definition of dependent child set

forth in 42 Pa.C.S. § 6302.         Id. at 2.    In support of her Application and

Petition, Petitioner averred as follows.

       My granddaughter has been living with me for [three] years. I
       am getting to the point where I need assitance [sic] to continue
       to care for her. I also need the ability to make medical [and]
       education decisions for her in order to get her insurance. During
       a [j]uvenile consent decree hearing before Judge McCrady, I was
       advised to file for [d]ependency.

Id.

       The juvenile court ordered CYF to investigate the allegations in

Petitioner’s Application and Petition.         Order Referring Private Dependency

Petition to [CYF] for Investigation, 6/11/2018, at 1.             After a hearing

pursuant to Pa.R.J.C.P. 1321, the juvenile court granted Petitioner’s

Application to file the Petition in accordance with Pa.R.J.C.P. 1321(B)(1).

See Order, 6/28/2018, at 1. The juvenile court gave permission for CYF to

intervene3 and scheduled an adjudication hearing on Petitioner’s Petition.

Id.

____________________________________________
3 Technically there was no need to provide CYF with permission to intervene
at this point, as Rule 1321 states that “[f]ollowing grant of an application
under this rule, the county agency shall be joined as a party in any further
(Footnote Continued Next Page)

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      At the time of the adjudication hearing, T.M.A. was attending summer

school.    N.T., 7/18/2018, at 18.             She was on probation and receiving

services through probation, including therapy through Wesley Family

Services, and drug and alcohol services, which she had completed. Id. at

18. Petitioner testified that T.M.A. has resided with her off and on her whole

life, and resided with her consistently for the first three and one-half years

of T.M.A.’s life and for the past three and one-half years. N.T., 7/18/2018,

at 11.     According to Petitioner, she desired to remain in the role of

grandmother and for T.M.A. and Mother to get along as mother and

daughter, “[b]ut it didn’t happen like that, because [T.M.A.] was having

issues and she came to stay with me[, and] I’m not going to put her out on

the street.” Id. at 11-12. She testified that she needed assistance caring

for T.M.A. Id. at 12. Specifically, T.M.A. is in need of health insurance, and

Petitioner cannot make any appointments for T.M.A. without it as she is not

financially able to pay the bill. Id. at 12-13. Petitioner also lacked medical-

decision-making authority to assist T.M.A. with any health issues, including

T.M.A.’s ongoing need for an inhaler to treat her asthma. Id. at 12.

      During her testimony, Mother acknowledged that T.M.A. went back

and forth between her house and Petitioner’s house, especially when T.M.A.

did not like Mother’s rules. Id. at 14, 16, 27-28. Mother testified that she


(Footnote Continued) _______________________
proceedings upon filing and service of a private petition pursuant to Rules
1330 and 1331.” Pa.R.J.C.P. 1321(C) (emphasis added).


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J-A03039-19


never gave permission for T.M.A. to stay with Petitioner. Id. at 31. When

asked if Mother was willing to have T.M.A. back, she responded by saying

T.M.A. was not ready because T.M.A. is upset by the “whole paternity

situation.” Id. at 27. When pressed further, Mother stated, “Whenever she

can come. I mean, I don’t care. I never said she -- I mean, she never got

good help.” Id.

      Mother admitted she had stopped providing insurance for T.M.A. a few

months ago; she did not renew it for T.M.A. because T.M.A. was not staying

in her house.     Id. at 23-24, 33-35.    Mother did not know the last time

T.M.A. went to the dentist or the exact status of T.M.A.’s asthma and

required inhaler. Id. at 24-26. Mother signed an individualized education

plan (IEP) for T.M.A. for her “learning” but did not know with which services

T.M.A. needed or already had.     Id. at 26-27, 30.    She also did not know

whether or not T.M.A. had been recommended for an evaluation for

medication. Id. at 30. Mother provided T.M.A. with new shoes for the first

day of school when T.M.A. asked her to do so. Id. at 28.

      T.M.A. testified that she wanted to stay with Petitioner and does not

want to return home to Mother because of conflict between them. Id. at 39-

40. From T.M.A.’s perspective, Mother just is not “in [her] life,” it felt as if

she did not have a mother, and Mother does not show her that she loves or

cares about her.    Id. at 39, 42. T.M.A. did not want anything to do with

Mother because of the “dad situation;” T.M.A. said Mother made her feel as



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J-A03039-19


if she did not have a father. Id. T.M.A. testified that if the juvenile court

ordered her to return to Mother, she would not go.       Id. at 39.   In the

previous year before the hearing, T.M.A. was returned to Mother’s home, but

she stayed there for only one week before returning to Petitioner’s house.

Id. at 43.   T.M.A. used to desire to have a relationship with Mother and

undergo family therapy with Mother, but she no longer wanted to do so,

although she later said she might eventually. Id. at 41, 47. She did wish to

continue with her own individual therapy and look into medication because

she believed her anger was “out of control.” Id. at 41, 45. At the time of

the hearing, T.M.A. had an inhaler, which had been provided by her other

grandmother, but she testified that she would need another one eventually

to address her asthma. Id. at 44. Her tooth was hurting and she needed to

go to the dentist. Id. She also was in the need of more clothes because

she kept growing. Id. at 46.

     The supervisor of T.M.A.’s juvenile probation officer testified that

T.M.A. was meeting all of her conditions of probation, she has good behavior

in school, she receives a special education curriculum through her IEP, and

she is working on goals with her counselor through probation. Id. at 52-54.

However, she noted that probation cannot provide medical treatment, food,

or clothing for T.M.A. Id. She also verified that T.M.A. goes back and forth

between Mother’s house and Petitioner’s house, especially after Mother

claimed T.M.A. was misbehaving. Id. at 53.



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J-A03039-19


        Finally, T.M.A.’s therapist from Wesley Family Services testified that he

had been working with T.M.A. for a year and she has made some

improvement with her social skills and decision making.           Id. at 56.   He

believed she needed additional services to help her transition into adulthood.

Id.    About a year ago, her therapist reached out to Mother to obtain an

evaluation for mental health medication for T.M.A. but “it kind of fell

through,” and T.M.A. still needed a medication evaluation. Id. at 57. She

also needed to continue to work on things like getting a job and doing better

in school. Id. at 58. Overall, however, he believed T.M.A. was “pretty much

doing what she needs to do.” Id.

        At the conclusion of the hearing, CYF opposed an adjudication of

dependency, arguing that Petitioner stood in loco parentis,4 was able to

provide for T.M.A.’s needs, and could obtain medical assistance for T.M.A. if

Petitioner provided her own personal income information and filled out the

medical assistance application. Id. at 60. Petitioner, who appeared pro se,

argued that she needed assistance for T.M.A. and noted she had no legal

authority to operate as her guardian.            Id. at 61.   T.M.A., through her

attorney,5 argued that she was dependent6 under subsection (1) or

____________________________________________
4   CYF does not maintain this argument on appeal.

5 Because Petitioner alleged T.M.A. was dependent under subsection (1),
KidsVoice initially represented T.M.A. as guardian ad litem. See Order
Appointing Guardian ad Litem, 6/11/2018, at 1. Since T.M.A. ultimately was
adjudicated dependent pursuant to subsection (6), KidsVoice now represents
(Footnote Continued Next Page)

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J-A03039-19


subsection (6) of the definition of dependent child set forth at 42 Pa.C.S. §

6302.     Id. at 63.    The juvenile court determined that Petitioner did not

satisfy her burden of proving subsection (1), but did establish dependency

pursuant to subsection (6) due to parent/child conflict.          Id. at 64.

Accordingly, the juvenile court entered an order adjudicating T.M.A.

dependent pursuant to subsection (6).

        CYF timely filed a notice of appeal from the adjudication order. Both

CYF and the juvenile court complied with Pa.R.A.P. 1925.      CYF raises the

following issue for our review: “[w]hether the [juvenile] court abused its

discretion when it adjudicated T.M.A. dependent when there was insufficient

evidence presented to support a finding of dependency?”7 CYF’s Brief at 4.


(Footnote Continued) _______________________
T.M.A. as legal counsel. See id. (“If the grounds for dependency DO NOT
fall within paragraph (1) … of the definition of Dependent Child in 42 Pa.C.S.
§ 6302, KidsVoice is appointed as attorney for [T.M.A.]”).

6 Mother did not offer her position at the hearing regarding whether
Petitioner met her burden of establishing that T.M.A. was dependent. See
N.T., 7/18/2018, at 61. She also has not participated in this appeal.

7 Both T.M.A. and the juvenile court urge us to conclude that CYF waived the
issue it presents on appeal, contending that CYF did not offer a specific
objection at the hearing to dependency under subsection (6). However, as
noted supra, Petitioner only checked the box for subsection (1) in her
Petition. In its Rule 1925(a) opinion, the juvenile court stated that it
granted Petitioner, who was operating pro se, “some leeway … in advancing
her allegations … as to why she believed T.M.A. was a dependent child.”
Juvenile Court Opinion, 9/12/2018, at 5 n.3. Further, the juvenile court
notes that the substance of the evidence advanced by Petitioner at the
hearing was related to the averments she set forth in the Petition. CYF does
not argue that it did not receive notice or was otherwise denied due process
by the juvenile court’s adjudicating T.M.A. dependent pursuant to a different
(Footnote Continued Next Page)

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J-A03039-19


      We review an order adjudicating a child dependent for an abuse of

discretion. In the Interest of: S.U., __ A.3d __, __, 2019 WL 763579 (Pa.

Super. 2019) (en banc). “An abuse of discretion is not merely an error of

judgment, but is, inter alia, a manifestly unreasonable judgment or a

misapplication of law.” In Interest of C.K., 165 A.3d 935, 941 (Pa. Super.

2017).    Our standard of review requires us to accept the juvenile court’s

findings of fact and credibility determinations if they are supported by the

record, but does not require us to accept the juvenile court’s inferences or

conclusions of law.        S.U., supra.        “[W]e accord great weight to the

[juvenile] court’s fact-finding function because the [juvenile] court is in the

best position to observe and rule on the credibility of the parties and

witnesses.” C.K., 165 A.3d at 941.

      Subsection (6) of the Juvenile Act defines a dependent child as one

who “has committed a specific act or acts of habitual disobedience of the

reasonable and lawful commands of his parent, guardian[,] or other

custodian and who is ungovernable and found to be in need of care,




(Footnote Continued) _______________________
subsection than the one checked on the Petition. In fact, CYF argues
strenuously that it preserved its objection to dependency under subsection
(6) by its general argument at the hearing that “there is no dependency
here.” CYF’s Brief at 12 (citing N.T., 7/18/2018, at 60). CYF also argued
there was “no testimony today that would support a finding of dependency
of [T.M.A. pursuant to] any of the sections of the Juvenile Act” and that
Petitioner was meeting T.M.A.’s needs. N.T., 7/18/2018, at 61. Under the
circumstances of this case, we decline to find waiver.


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J-A03039-19


treatment or supervision[.]”8 42 Pa.C.S. § 6302. Following a hearing, “[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.” In re M.L., 757 A.2d 849, 850-51 (Pa. 2000). The

burden of proof is on the petitioner. S.U., supra. Once the juvenile court

finds a child is dependent, the Juvenile Act then authorizes the court to enter

an order of disposition, which is “best suited to the safety, protection[,] and

physical, mental, and moral welfare of the child[.]” 42 Pa.C.S. § 6351(a).

       On appeal, CYF argues “no evidence was presented that T.M.A.

committed any acts, specific or habitual, where T.M.A. disobeyed the

commands of either her parent or guardian.”        CYF’s Brief at 16.   Further,

since T.M.A. was compliant with the terms of her probation, including her

therapy requirement, and Petitioner described T.M.A. as well behaved, CYF

____________________________________________
8 Besides subsection (6), there are nine other grounds for dependency
included in the definition of dependent child. See 42 Pa.C.S. § 6302. One
of those additional grounds is subsection (1), which includes instances where
a 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” and “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[.]” Id. At the time of the hearing, the
juvenile court stated that subsection (1) was not met, but it later asserted
that there was evidence presented to support a subsection (1) adjudication.
Compare N.T., 7/18/2018, at 64 with Juvenile Court Opinion, 9/12/2018,
at 11 n.7. While some of the evidence presented at the hearing may have
served to establish dependency pursuant to subsection (1), the juvenile
court only adjudicated T.M.A. dependent under subsection (6) in its July 19,
2018 order. Accordingly, we shall only address whether there was sufficient
evidence presented to satisfy a subsection (6) adjudication.


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J-A03039-19


contends T.M.A. was not ungovernable.         Id. at 17.   CYF claims “the only

reason T.M.A. was not residing with Mother” was because in T.M.A.’s

delinquency matter, the juvenile court ordered T.M.A. to reside with

Petitioner.   Id. at 16-17.   CYF asserts the juvenile court should not have

given weight to T.M.A.’s testimony that she would not stay with Mother if the

court ordered her to reside there since T.M.A. was complying with an

unspecified delinquency order.    Id. at 17.    Finally, CYF argues T.M.A. was

already receiving care, treatment, and supervision through probation. Id. at

18.

      Upon review of the record, we determine that the juvenile court did

not abuse its discretion in concluding that Petitioner met her burden of

proving that T.M.A. is a dependent child pursuant to subsection (6).       The

record is replete with indications of the conflict between T.M.A. and Mother,

and because of this conflict, T.M.A. refused to stay with Mother. See, e.g.,

N.T., 7/18/2018, at 27; 39-43.    Contrary to CYF’s assertion that T.M.A. had

care through Petitioner and sometimes “would visit at [Mother’s] home,” see

CYF’s Brief at 17, Mother testified that T.M.A. repeatedly bounced between

Mother and Petitioner’s home:

      when she doesn’t want to follow my rules, [T.M.A.] will go back
      to [Petitioner’s house]. When she say she got to go, because
      she does whatever at [Petitioner’s] house, she will go back. So it
      is like back and forth situation. Wherever [T.M.A.] wants to be
      where [T.M.A.] feels like at the moment….




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J-A03039-19


N.T., 7/18/2018, at 14; see also id. at 16 (indicating T.M.A. went back to

Petitioner’s house when [T.M.A.’s] girlfriend went to stay there; “[t]hen half

the time she [does not] stay there.            She is elsewhere.”); id. at 26-27 (“I

can’t ever say she ever physically lived anywhere, but she would come back

and forth[.]”).     The supervisor of T.M.A.’s juvenile probation officer also

testified there have been times during T.M.A.’s probation that Mother called

probation to say T.M.A. was “misbehaving and then [T.M.A.] runs back to

[Petitioner’s home]. And so she has gone back and forth. And she is pretty

much this past year been at [Petitioner’s] home.” Id. at 53. Further, T.M.A.

testified she would not stay at Mother’s house if the juvenile court returned

her to Mother’s care. Id. at 39. It was within the juvenile court’s discretion

to credit T.M.A.’s statement, particularly when T.M.A. also described an

incident the prior year when she returned to Mother’s home, but only stayed

for one week before returning on her own to Petitioner’s house.9               N.T.,

7/18/2018, at 43. All of this testimony belies CYF’s contention that T.M.A.

was not staying with Mother only because the juvenile court ordered T.M.A.

to stay with Petitioner beginning in December 2017 in T.M.A.’s delinquency

____________________________________________
9 T.M.A. did not provide a specific timeline in her testimony, but referred to
being in a foster home then returning to Mother’s house the year prior. Id.
at 43. Presumably she is referring to CYF’s placement of her in foster care
on May 5, 2017, after she refused to go to Mother’s home upon her
discharge from the Shuman detention center, followed by the juvenile
court’s order to return her to Mother following the May 8, 2017 shelter care
hearing. See CYF Shelter Care Application, 5/5/2017, at 3; Shelter Care
Order, 5/15/2017, at 1.


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J-A03039-19


matter.   Instead, it is clear that due to the conflict between them, T.M.A.

refuses to stay at Mother’s house, thereby committing acts of habitual

disobedience and rendering her ungovernable by Mother.

     Further, the record plainly indicates that T.M.A. is in need of care,

treatment, and supervision.     While Petitioner was meeting as many of

T.M.A.’s needs as she could, she was not T.M.A’s legal guardian or

custodian. Mother and Petitioner did not appear to coordinate T.M.A.’s care

in any fashion. Mother failed to renew T.M.A.’s health insurance or ensure

that T.M.A. had another way of securing health care. Id. at 12-13. T.M.A.

needed consistent access to an inhaler to manage her asthma. Id. T.M.A.

testified that she was in need of an evaluation for medication to address her

“out of control” anger, dental care, and clothing. Id. at 41, 44-46; see also

id. at 57. She did not have an adult with medical decision making authority

who assisted her in managing her healthcare. Id. She also did not have an

adult with educational decision making authority who consistently oversaw

her educational needs and IEP.      Id. at 26-27, 30.    While the juvenile

probation department was able to address some of T.M.A.’s needs, other

needs were outstanding and simply could not be addressed by probation.

The juvenile probation department is not a substitute for a parent, legal

guardian, or custodian.

     Since T.M.A. has made some strides while she has been on probation

and Petitioner indicated she does not have difficulty with T.M.A.’s behavior,



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it is possible that T.M.A.’s behavior is a product of Mother’s failure to provide

proper parental care or control, and T.M.A. could be governable if she had a

parent who attempted to govern her. It is also possible that Mother tries,

and T.M.A. simply refuses to listen. However, we decline to speculate. The

origins of family conflict are often complex, and getting to the bottom of the

exact root of the conflict is better left to the parties and their therapists

rather than courts.     For the purpose of this appeal, we just need to

determine whether the juvenile court abused its discretion in determining

that clear and convincing evidence was presented to establish the statutory

definition of dependent child. In this case, we do not hesitate to conclude

that the juvenile court did not abuse its discretion.     Petitioner established

that there was conflict between T.M.A. and Mother that caused T.M.A. to

refuse to stay in Mother’s house. T.M.A. was left without a caregiver who

had legal authority to oversee all of her medical and educational needs,

ensure that she had a consistent home, and address her care, treatment,

and supervision in any sort of coordinated and comprehensive fashion.

      Based on the foregoing, we hold the juvenile court did not abuse its

discretion in determining that Petitioner established that T.M.A. was a

dependent child pursuant to subsection (6) of the definition of dependent

child under the Juvenile Act.    We therefore affirm the juvenile court’s July

19, 2018 order.

      Order affirmed.



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J-A03039-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2019




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