In re M.A.

1

IN THE INTEREST OF: M.A., A MINOR APPEAL OF: T.A., MOTHER IN THE INTEREST OF: R.A., A MINOR APPEAL OF: T.A., MOTHER

Nos. 506 EDA 2023, 507 EDA 2023

Superior Court of Pennsylvania

August 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered February 1, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000868-2022, CP-51-DP-0000869-2022.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM

KING J.:

Appellant T.A. ("Mother"), appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed the dependency petitions filed by the Philadelphia County Department of Human Services ("DHS") and transferred legal and physical custody of her minor children R.A. (daughter) and M.A. (son) (collectively, "Children"), to I.W. ("Father"). We affirm.

The relevant facts and procedural history of this case are as follows. Mother and Father are the natural parents of R.A., who was born in January 2012, and M.A., who was born in June 2013. Shortly after M.A.'s birth, Mother and Father's relationship deteriorated. While Father moved to Ohio, Children remained in Pennsylvania with Mother.

On September 1, 2022, DHS received a General Protective Service ("GPS") report alleging that Mother had been hospitalized after suffering a bone infection. (See Dependency Petition for M.A., filed 10/3/22, at ¶b). After Mother was discharged from the hospital, she "had physical limitations that affected her ability to care for" Children. (Id.) The report also alleged that Mother might have been abusing prescription pain medication, and she had not enrolled Children in school for the 2022-2023 academic year.

On September 2, 2022, DHS employees went to Mother's residence for further investigation. Upon arrival, DHS employees observed Mother "to be confused and disoriented[.]" (Id. at ¶c). Although Children appeared to be safe, the home was cluttered with "multiple cigarette butts strewn on the floor" and "cigarette burns on [Mother's] sheets[.]" (Id.) Mother kept open pill bottles within Children's reach. Mother also confirmed that she had yet to enroll Children in school, and Children "had not attended school since the family moved to Philadelphia [from Johnstown] in December 2021." (Id.)

While the DHS employees spoke with Mother, her "behavior became increasingly erratic, and she became verbally abusive toward DHS." (Id.)

DHS subsequently contacted D.L. and T.L. ("Maternal Grandparents"), who agreed to care for Children while Mother "addressed the condition of her home and sought appropriate services for herself." (Id. at ¶d). Mother's in-home services commenced on September 7, 2022. On September 9, 2022, during a "Crisis Rapid Response Family Meeting," DHS determined that Mother had untreated mental health issues. (Id. at ¶g). DHS also confirmed that Mother was abusing her prescription medications. Considering Mother's condition, DHS contacted Father on September 14, 2022. At that time, Father stated "that he shared custody of the children with [Mother]; that he was in agreement with [Children] residing with [Maternal Grandparents] through a Safety Plan; and that he wanted to seek full custody of the children." (Id. at ¶i).

On October 3, 2022, DHS filed separate dependency petitions for Children. The court conducted an adjudicatory hearing on February 1, 2023. At the hearing, the court received testimony from the DHS social worker, the Community Umbrella Agency ("CUA") case manager, Father, and Mother. Additionally, the guardian ad litem entered Father's "secure criminal court summary" into evidence. (N.T. Hearing, 2/1/23, at 144). At the conclusion of the hearing, the court found that DHS presented clear and convincing evidence to warrant an adjudication as to Mother. (See id. at 151). The court also found that Father "is ready, willing, and able to care for these children." (Id. at 152). Thus, the court entered an order dismissing the dependency petition and transferring legal and physical custody of Children to Father. On February 27, 2023, Mother timely filed separate notices of appeal and concise statements of errors. This Court consolidated the matters sua sponte on March 22, 2023.

Mother now raises two issues for our review:

Whether the trial court committed reversible error when the trial court did not adjudicate [Children] dependent and commit them to [DHS], where an adjudication of dependency and [commitment] to DHS was supported by clear and convincing evidence under the Pennsylvania Juvenile Act, 42 Pa.C.S. §§ 6301-6365.

Whether the trial court committed reversible error when the trial court placed [Children] in the legal and physical custody of [Father], where such determination was not supported by clear and convincing evidence under the Pennsylvania Juvenile Act, 42 Pa.C.S. §§ 6301-6365.

(Mother's Brief at 8).

Mother's issues are related, and we address them together. Initially, Mother concedes that she "is not appealing the adjudication of dependency as to her," and her arguments are "limited to the transfer of the physical and legal custody of" Children to Father. (Id. at 12). Regarding custody, Mother insists that the record did not support the court's decision to transfer custody of Children to Father. Mother emphasizes a DHS policy requiring that each child should have their own bedroom. Nevertheless, Father testified that he lives in a two-bedroom apartment. Although Father testified that he is willing to sleep on a sofa for Children to have separate bedrooms, Mother maintains that there is no way to ensure this will happen where the record does not mention whether "the State of Ohio and the appropriate county agency was going to pick this case up for supervision[.]" (Id. at 14). Mother also argues that: 1) DHS did not obtain Father's criminal history from Ohio; 2) Father failed to provide specific testimony about his plans for childcare; 3) Father's relationship with Children was fractured due to Father's move to Ohio; and 4) Children did not want to live with Father. Under these circumstances, Mother asserts that the transfer of custody to Father is not in Children's best interests. Mother concludes that this Court must reverse the order that transferred custody. We disagree.

The applicable scope and standard of review for dependency cases is 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 [trial] court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).

We accord great weight to this function of the hearing judge because [the court] is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before [the court]. Relying upon [the court's] unique posture, we will not overrule [its] findings if they are supported by competent evidence.

In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000).

The Juvenile Act defines a dependent child, in pertinent part, as follows:

§ 6302. Definitions

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"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 [or her] 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, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]

42 Pa.C.S.A. § 6302.

A court may adjudicate a child as dependent if the child meets the statutory definition of a dependent child by clear and convincing evidence. See In re E.B., 898 A.2d 1108, 1112 (Pa.Super. 2006).

If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or a private or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).

The definition of a dependent child contained in section 6302 clearly states that a child must lack a parent, guardian or other legal custodian who can provide appropriate care to the child. A child whose non-custodial parent is ready, willing and able to provide such care does not meet this definition.

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The plain language of the statutory definition of a dependent child compels the conclusion that a child is not dependent if the child has a parent who is willing and able to provide proper care to the child. When a court adjudges a child dependent, that court then possesses the authority to place the child in the custody of a relative or a public or private agency. Where a non-custodial parent is available and willing to provide care to the child, such power in the hands of the court is an unwarranted intrusion into the family. Only where a child is truly lacking a parent, guardian or legal custodian who can provide adequate care should we allow our courts to exercise such authority.

In re M.L., 562 Pa. 646, 649-50, 757 A.2d 849 850-51 (2000). "In other words, if a dependency petition is filed against the custodial parent and there is...