In the Int. of: K.B., Appeal of: DHS

J-A25036-24

2025 PA Super 21

IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: DHS :

:

:

:

: No. 1543 EDA 2024

Appeal from the Order Entered June 3, 2024

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0000028-2024

OPINION PER CURIAM: FILED JANUARY 27, 2025

The Philadelphia Department of Human Services (“DHS”) appeals from

the order discharging its petition for dependency of K.B. (“Child,” born in

December 2023) and returning legal and physical custody of Child to C.B.

(“Mother”). For the reasons discussed below, we reverse and remand.

DHS first became involved with Mother in 2016, when she and her two

older children (“Ma.B.,” born in 2013, and “Miq.B.,” born in 2015), were found

living in deplorable conditions. See Dependency Petition, 1/30/24, at 1-2

(unnumbered). Neither child had up-to-date vaccinations or had seen a

physician regularly; Miq.B. was suffering from a yeast infection, and Ma.B’s

body was covered in insect bites. See id. at 1-2. Additionally, Mother did not

have weather-appropriate clothing for either child, what clothing she did have

was dirty, and both children were “unkempt, filthy, and malodorous.” Id.

Mother also had a history of drug abuse and a drug-related criminal conviction.

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See id. at 2-3 (unnumbered). The court adjudicated Ma.B. and Miq.B.

dependent and terminated Mother’s parental rights to the two children early

in 2017. See id. at 2 (unnumbered).

Mother has a third child (“Mic.B.,” born in January 2023), who, as of

January 2024, lived with maternal grandmother (“Grandmother”). See

Crisis/Rapid Response Family Meeting Report Conference, 1/17/24, at 1

(unnumbered). Sometime thereafter, DHS took custody of Mic.B. and filed a

dependency petition on her behalf. See N.T., 6/3/24, at 5-9.

The Child at issue in this appeal was born in late December 2023 and

remained in the hospital’s neonatal intensive care unit for nearly two weeks

because Child had breathing and feeding difficulties and needed a feeding

tube. See N.T., 2/26/24, at 11-15. The hospital contacted DHS to express

concerns Mother spent little time visiting Child and refused to feed him,

incorrectly claiming Child was not hungry. See Dependency Petition, 1/30/24,

at 2 (unnumbered); N.T., 2/26/24, at 6-7; 11-12. The hospital also noted

Mother did not have an appropriate car seat base for Child and did not see the

need to obtain one. See id. Upon investigation, DHS ascertained Mother was

unemployed and homeless; at times she stayed with Child’s maternal great-

grandmother (“Great-Grandmother”), 1 who lived in a senior facility; at other

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1 Great-Grandmother’s name is not included in the certified record.

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times, she stayed with Child’s uncle, Mother’s brother, T.B. (“Uncle”). See

N.T., 2/26/24, at 8; N.T., 6/3/24, at 13-15.

In January 2024, DHS obtained an order of protective custody (“OPC”)

for Child. See Order, 1/11/24, at 1 (unnumbered). At the shelter care

hearing, the juvenile hearing officer determined it was not in Child’s best

interest to be placed with Mother, lifted the OPC, and ordered DHS’s

temporary commitment of Child to stand. See Recommendation for Shelter

Care, 1/12/24, at 1-2.

A dependency hearing began in February 2024. 2 At the hearing,

Tomeka Williams (“Ms. Williams”), an investigator for DHS, testified about her

investigation. See N.T., 2/26/24, at 6-15. As Ms. Williams began to discuss

the hospital’s concerns regarding Mother’s disinterest in visiting and feeding

Child, the trial court interrupted, asking, “Why is this a dependency issue?”

Id. at 7. Later, when Ms. Williams elaborated on Mother’s refusal to feed Child

while he was hospitalized, the trial court stated, “I don’t find there’s any

dependency. The feeding stuff is irrelevant. The only [issue] that’s relevant

is the housing. . . . Get to something relevant.” Id. at 15.

Ms. Williams noted Mother was living with Great-Grandmother at a

senior living facility, but management could ask her to leave at any time. See

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2 Although represented by counsel, Child’s father (“Father”) did not appear at

any of the proceedings and made it clear to DHS he has no interest in Child.

See N.T., 2/26/24, at 11.

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id. at 8-9. Ms. Williams explained Mother moved between Great-

Grandmother’s residence and Uncle’s home, but Uncle failed the clearances.

See id. at 13.3

Nakeem Addison (“Mr. Addison”), Mother’s case manager at the

Community Umbrella Agency (“CUA”), also testified at the hearing. See id.

at 16-20. Mr. Addison confirmed Mother’s lack of stable housing and noted

Mother had no plan in place to remedy the situation. See id. at 17-18. The

trial court interrupted Mr. Addison’s examination and stated,

I’m going to defer adjudication. This is a housing case, and

nobody knows the status of [Mother’s] housing. I’m going to defer

adjudication. . . . No. Continue, but I’m telling you where I’m

at. Unless you produce something ─ but he doesn’t know. She

doesn’t know. It’s going to be deferred. . . .

Id. at 17-18. Counsel for DHS asked the trial court to take judicial notice of

the fact that Mother’s parental rights to two of her children had been

terminated. See id. at 20. The trial court refused to do so. It stated:

That has nothing to do with this adjudication. That would come

into play after I’ve adjudicated, but right now we’re talking about

whether or not you’ve met your burden and you haven’t at this

juncture, unless you make compelling argument.

Id.

The trial court also offered its speculation about Mother’s housing:

So, no person has [an] idea of the status of [Mother’s] housing.

She’s staying with [Great-G]randmother. She might be staying

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3 Ms. Williams was presumably referring to the ChildLine clearances without

which a person cannot be a suitable housing resource for a child. See 55

Pa.Code § 3490.4.

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there for an indefinite period of time and [Great-Grandmother]

may be allowing that. If that’s the case, it’s not dependen[cy].

Id. at 20-21. The trial court then continued the hearing. See id. at 21-22.

After two continuances, the court reconvened the hearing in June 2024.

Mr. Addison, the only witness, testified Mother had not been truthful when she

said she was staying with Great-Grandmother. See N.T., 6/3/24, at 13.

Rather, Mother was residing with Uncle. See id. at 14. Mother was

uncooperative and refused to provide contact information or an address for

Uncle, so Mr. Addison had been unable to investigate the suitability of his

residence. See id. at 14-16. At this point, the trial court interrupted:

Let me interject . . . we initially had this adjudicate[ion] hearing

on February 26th.

At this juncture, which is four months ago, any information

or testimony with respect to adjudication would be stale, and you

have to re-put that on the record because I don’t have anything

right now.

The only thing you have on the record right now is that

[Mother] hasn’t provided DHS with any address, but with respect

to adjudication, I don’t have anything else.

*****

You can put [Mother] has no housing, but you still need to

put some information with respect to [Child4] and why [Child is]

dependent, and right now I have nothing. I’m just letting you

know that. Go.

Id. at 16-17 (footnote added).

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4 Although the court referred to “kids,” only one Child as at issue.

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The trial court sustained an objection to testimony regarding Mother’s

lack of employment. See id. at 18. The court speculated Mother, “could be

living with [Uncle], and [Uncle] could [be] taking care of all the expenses. The

children wouldn’t be dependent.” Id. at 18-19. The court also refused to

permit DHS to elicit testimony regarding Mother’s lack of involvement with her

other three children, stating “[h]er other children are irrelevant. We’re talking

about this [C]hild.” See id. at 19.

DHS offered the witness for cross-examination, but the court

immediately declared it was “just going to discharge the case.” See id. When

counsel for Father asked if she would be allowed to cross-examine the witness,

the trial court asked, “You don’t really want to, do you?” Id. at 20-21.

Counsel for Mother indicated she did not want to cross-examine the witness,

but counsel for Child stated she intended to do so. See id. at 21. In response,

the court stated, “I’m about to discharge this case. Did you listen to any –

why are you cross-examining somebody? The testimony was – go.” See id.

The trial court immediately sustained objections to the three questions Child’s

counsel attempted to ask regarding Child’s hospitalization after birth. See id.

at 21-22.

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The trial court discharged the dependency petition and directed physical

and legal custody of Child be returned to Mother. 5 This appeal followed.6

On appeal, DHS raises two questions for our review:

1. Did the trial court err as a matter of law and abuse its discretion

in declining to adjudicate [Child] dependent, where it failed to

conduct a comprehensive and searching inquiry of the record by

arbitrarily precluding relevant evidence that Mother did not have

the present ability to provide [Child] with proper parental care,

including Mother’s lack of safe and stable housing; Mother’s

evasiveness in preventing CUA from completing a court-ordered

home assessment; Mother’s disinterest and lack of involvement in

[Child’s] care at the hospital; and Mother’s prior DHS involvement

and involuntary termination of parental rights?

2. Did the trial court violate DHS’[s] right to due process where it

prejudged the case before hearing all the evidence?

DHS’S Brief at 3 (unnumbered).7

In its first issue, DHS challenges the trial court’s discharge of the

dependency petition. See id. at 16-24.

We begin with our standard of review. This Court’s standard of review

for dependency cases requires that we accept the trial court’s findings of fact

and credibility determinations when supported by the record. See In re

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). The Court is not required to accept the

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5 It appears Child has remained in care during the pendency of the instant

appeal.

6 DHS and the trial court complied with Pa.R.A.P. 1925.

7 Neither Mother nor Father filed a brief on appeal. We note with extreme

displeasure that the child advocate also did not file a brief.

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lower court’s inferences or conclusions of law and accordingly reviews for an

abuse of discretion. See id.

A dependency hearing is a two-stage process governed by the Juvenile

Act, 42 Pa.C.S.A. §§ 6301-6365. The first stage requires the court to hear

evidence on the dependency petition and to determine whether the child is

dependent. See 42 Pa.C.S.A. § 6341(a). Section 6302, defines a “dependent

child,” in part, as one who

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

. . . that places the health, safety or welfare of the child at

risk[.]

42 Pa.C.S.A. § 6302(1) (emphases added). This Court has held a child will be

declared dependent when he is presently without proper parental care or

control, and when such care and control are not immediately available. See

In re G.T., 845 A.2d 870, 872 (Pa. Super. 2004). Proper parental care has

been defined 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 345, 349 (Pa. Super. 2013) (internal quotation marks and

citation omitted). “The question of whether a child is lacking proper parental

care and control encompasses two discrete questions: whether the child

presently is without proper care and control, and if so, whether such care and

control is immediately available.” In re M.W., 842 A.2d 425, 428 (Pa. Super.

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2004) (citation omitted). In answering the first question, the paramount

concerns is the “welfare of the child at the time of the hearing[.]” In the

Interest of Black, 417 A.2d 1178, 1183 (Pa. Super. 1980). In answering to

the second question, “it may be necessary for the hearing court to look to the

future.” Id. at 1182.

A finding that a child is dependent requires proof by “clear and

convincing evidence,” i.e., 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 at issue.” Matter of C.R.S., 696

A.2d 840, 843 (Pa. Super. 1997) (internal quotation marks and citation

omitted). If the court finds a child dependent, it proceeds to the second stage

of the dependency process, which requires an appropriate disposition based

on the best interest of the child pursuant to section 6351 (a) and (b). See 42

Pa.C.S.A. § 6341(a), (c); see also In re B.S., 923 A.2d 517, 521 (Pa. Super.

2007).

A court in a dependency proceeding must conduct a “comprehensive

and searching” inquiry into the record taking “evidence from all interested

parties and also from objective, disinterested witnesses.” In the Interest of

Black, 417 A.2d at 1181-82 (internal citations omitted). See In re Donna

H., 602 A.2d 1382, 1385 (stating “the utmost concern is for the children’s

welfare and therefore nothing short of the comprehensive and searching

inquiry into the facts mandated by decisions of this court will be acceptable”)

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(internal citations, brackets, and quotation marks omitted). This searching

inquiry is necessary to ensure the trial court has a comprehensive view of the

matter, is aware of all relevant concerns, and makes an informed decision.

See id. at 1384-85 (remanding case for rehearing where the trial court

refused to allow the child advocate or counsel for the child to cross-examine

witnesses or present evidence and viewed the precipitating incident in

isolation rather than looking at the entire history of the case).

It is long settled a “finding of dependency can be made on the basis of

prognostic evidence and such evidence is sufficient to meet the strict burden

of proof necessary to declare a child dependent.” In re E.B., 83 A.3d 426,

433 (Pa. Super. 2013) (citation omitted) (affirming the adjudication of

dependency of an infant based on allegations the family’s two older children

were adjudicated dependent after physical abuse by father who was the

subject of pending criminal charges). This Court has noted when dealing with

an infant, the failure to allow prognostic evidence “would preclude a child

welfare agency from ever seeking to have a newborn declared a [dependent]

child, no matter how unfit or incompetent the natural parents are.” Matter

of DeSavage, 360 A.2d 237, 2024 WL 4945042, at *3 (Pa. Super. 12/03/24)

(citing DeSavage and affirming adjudication of dependency based on

prognostic evidence including evidence of Mother’s failure to visit and learn to

properly feed infant while the infant was hospitalized); In re R.W., 826 A.2d

10 (Pa. Super. 2003) (affirming dependency adjudication of an infant based

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on DeSavage, where the adjudication was based solely on prognostic

evidence concerning Mother’s prior abuse and neglect of her other children).

This Court has specifically stated that a rule prohibiting a court from

considering prognostic evidence and compelling the court to place the child

with natural parents to determine if they can render proper care “ignores the

possibility that if the ‘experiment’ proves unsuccessful, the

consequences to the child could be seriously detrimental or even

fatal.” DeSavage, 360 A.2d 242 (emphasis added).

DHS argues the trial court erred and abused its discretion by sua sponte

precluding prognostic evidence regarding Mother’s prior history with DHS and

her actions during Child’s hospital stay. See DHS’s Brief at 18-20

(unnumbered). DHS maintains the trial court erred in relying on the Adoption

Act, instead of the Juvenile Act, in concluding DHS did not meet its burden of

proving dependency. See id. at 21. DHS contends the trial court erred in not

finding Child dependent even though it acknowledged Mother’s unstable

housing situation and her refusal to cooperate with DHS. See id. at 21-24.

The trial court rejected DHS’s arguments. It stated:

In the instant case, [Mother’s] housing status is still

unknown. However, if [Child] and his sibling[8] are able to stay

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8 It is not clear to this Court why the trial court references Child’s sibling

(Mic.B.) in its decision. The record reflects while Mic.B.’s dependency petition

was scheduled for a hearing on the same day as Child’s, the trial court

continued the case because Mic.B.’s biological father had not been served.

See N.T., 6/3/24, at 4-12. Moreover, the record indicates the allegations

(Footnote Continued Next Page)

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with [Great-Grandmother], there is nothing justifying an

adjudication of dependency because the children will have

appropriate housing at [Great-Grandmother’s] house. [Mother]

not having adequate and appropriate housing does not

automatically mean that the children should be adjudicated

dependent: the children could theoretically stay with a relative

while [Mother] gets her affairs in order and there would be no

dependency issue. Testimony . . . was that [Mother] was living in

a senior living facility with [Great-Grandmother]. No evidence

was presented as to where the children had been residing for the

life of the case. . . . Regardless of [Mother’s] current housing

situation, the law is clear that a parent’s rights shall not be

terminated solely on the basis of environmental factors such as

inadequate housing. . . [and] income. . . if found to be beyond the

control of the parent. Here, testimony from the CUA worker is

that [Mother] has been looking for employment and stable

housing but has been unsuccessful due to reasons beyond her

control. Thus, DHS failed to meet its burden of proving by clear

and convincing evidence that finding housing and a job is within

[Mother’s] control.

*****

[T]here were no allegations that [M]other was unable to provide

proper care and control of her children. DHS asserted that

[Mother] should not have custody of [Child] solely due to [Mother]

not having a job or appropriate housing. As discussed above, not

having adequate housing or a job is not a reason to adjudicate a

child dependent.

Trial Court Opinion, 8/16/24, at 5-7 (citations, record citations, and footnotes

omitted, footnote added).9 The trial court also maintained it correctly

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underlying Mic.B’s dependency petition were not the same as those underlying

Child’s. See id. That the trial court included Mic.B. in this decision and

appears to have prejudged her case, which involves different allegations, is

entirely inappropriate.

9 Later in its decision, the trial court contends it properly declined to find

aggravated circumstances. See Trial Court Opinion, 8/16/24, at 10. We can

(Footnote Continued Next Page)

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excluded the evidence from the February 2024 hearing at the June 2024

hearing as “stale.” Id. at 8. Lastly, the trial court avers it properly excluded

evidence of Mother’s lack of care for her three other children as irrelevant.

See id. at 9-10.

After a painstaking review of the record, we conclude the trial court’s

decision is contrary to both the facts and the law. Initially, the trial court’s

reliance on the Adoption Act as a basis for discharging the dependency petition

is misplaced. See id. at 6 n.22 (citing 23 Pa.C.S.A. §2511(b), which precludes

the termination of parental rights solely on the basis of, inter alia, inadequate

housing and income). However, this is not a termination case, it is a

dependency proceeding. The trial court does not point to any law in the

context of dependency proceedings where our courts have applied

§ 2511(b) of the Adoption Act. Moreover, the trial court does not cite to any

law in the dependency context where we have imposed a requirement on a

child welfare agency to prove the parent is at fault for a dangerous or

unsuitable housing condition as a prerequisite to a finding of dependency.

The trial court’s importation of the Adoption Act into these proceedings

and its reliance on it to support a determination that it could not declare Child

dependent based upon Mother’s lack of suitable housing and income

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find no support in the record that DHS ever alleged or sought to prove

aggravated circumstances.

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misapplies the law and violates the mandate of the Juvenile Act. As this Court

has stated, one of the fundamental purposes of the Juvenile Act is to:

provide for the care, protection, safety, and wholesome mental

and physical development of children coming within the provisions

of this chapter. Indeed, the relationship of parent and child is a

status and not a property right, and one in which the state has an

interest to protect the best interest of the child.

Interest of K.C., 310 A.3d 296, 304 (Pa. Super. 2023) (internal quotation

marks, brackets, and citations omitted). Thus, the trial court abused its

discretion and committed an error of law in relying on the Adoption Act. See

In re R.J.T., 9 A.3d at 1179.

The trial court also erred in excluding relevant evidence regarding

Mother’s conduct while Child was in the hospital, her prior history with DHS,

her employment status, and, at the June 2024 hearing, her continuing housing

instability, evidence the court erroneously characterized as “irrelevant” and

“stale.”

Our Supreme Court has stated:

Evidence is relevant if it has “any tendency to make a fact [of

consequence] more or less probable than it would be without the

evidence.” Pa.R.E. 401. Irrelevant evidence is inadmissible, and

relevant evidence “is admissible except as otherwise provided by

law.” Pa.R.E. 402. The “except as otherwise provided by law”

qualifier includes the principle that relevant evidence may be

excluded “if its probative value is outweighed by a danger of one

or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403.

Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015). As noted above, courts in

dependency cases are required to make a “comprehensive and searching”

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inquiry. In the Interest of Black, 417 A.2d at 1181. The approach should

be a wholistic one. See id. at 1182. This Court has specifically noted the

definition of a dependent child is “intended to be flexible and to encompass

the myriad circumstances that may cause a child to be without proper parental

care or control.” Interest of A.D.-G., 263 A.3d 21, 30 (Pa. Super. 2021).

These circumstances “routinely” include “lack of appropriate housing[,]” and

unemployment. Id.; see also In re K.D., 871 A.2d 823, 831 (Pa. Super.

2005) (concluding evidence was sufficient to support termination of mother’s

parental rights and discussing evidence of mother’s continuing failure to obtain

employment).

Child was less than two months old at the time of the February 2024

dependency hearing. As discussed above, prognostic evidence, particularly in

cases involving infants, is relevant and admissible and so powerful it can itself

sustain a finding of dependency. See In re E.B., 83 A.3d at 433; Matter of

DeSavage, 360 A.2d 241-42. Here, the evidence showed Mother did not

have custody of her other three children. See Dependency Petition, 1/30/24,

at 1-2. Further, two of those children, both of whom were toddlers at that

time, had been adjudicated dependent and Mother’s parental rights to those

children terminated because she was unable to remedy the unsuitable housing

conditions, neglect, and medical neglect that led to their placement. See id.

This evidence was relevant and admissible both as prognostic evidence and to

show Mother’s current housing problems were not an isolated issue but dated

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back to 2016. Thus, any concern about the alleged staleness of the evidence

is misplaced.

With respect to Child’s hospitalization, the evidence showed Child

remained hospitalized after birth largely because of issues with feeding and

weight loss and, during this period, had some need of a feeding tube. See

N.T., 2/26/24, at 11-15; Dependency Petition, 1/30/24, at 2 (unnumbered).

The hospital’s concerns that Mother (despite being unemployed) was spending

little time with Child and was refusing to feed him was directly relevant to the

question about whether Child would be safe with Mother and whether he was

without proper parental care, control, and supervision.

Moreover, given Mother’s history of physical neglect of her other

children, her lack of employment was relevant to her ability to supporting

herself and Child and/or obtaining suitable housing without any source of

income.10 Thus, the trial court abused its discretion and committed an error

of law in excluding the above evidence.

In addition to multiple errors of law, to the extent the trial court made

findings of fact, it erred. Initially, we are confused by the trial court’s multiple

statements in its opinion that there was no evidence as to where “the children

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10 We note Mother offered no evidence at either hearing. The trial court’s

statement that Uncle, who was not present for either hearing, would support

Mother and Child was speculative and the trial court’s reliance on this

statement in finding Child was not dependent was, at best, misplaced. See

N.T., 6/3/24, at 18-19.

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had been residing for the life of the case[,]” and the court’s apparent inference

that the alleged lack of such evidence meant the children 11 were safely

residing with Mother. Trial Court Opinion, 8/13/23, at 6; see also id. at 7-8.

To the contrary, the record plainly shows that, from birth in late December

2023 until January 11, 2024, Child was in the hospital. See N.T., 2/26/24, at

11-15; Recommendation for Shelter Care, 1/12/24, at 1-2. Following his

release from the hospital, Child was immediately placed in foster care. See

N.T., 2/26/24, at 16. The continuance orders issued by the trial court in

Spring 2024, specifically state commitment of Child to DHS continued and

Child resided in foster care. See Continuance Order, 4/8/24, at 1;

Continuance Order, 4/19/24, at 1.12

The trial court’s finding Child was not dependent because Child could

stay indefinitely with Great-Grandmother, or some other relative also lacks

record support. In the dependency petition, DHS noted Mother claimed she

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11 As noted above, Mic.B. is not a party to the instant appeal.

However, with

respect to her, the record demonstrates at the time of the February 2024

dependency hearing, Mic.B. resided with Grandmother. See Crisis/Rapid

Response Family Meeting Report Conference, 1/17/24 at 1 (unnumbered);

N.T., 2/26/24, at 9. At some point between February 2024 and June 2024,

DHS took custody of Mic.B. and she was residing in the same foster home as

Child. See N.T., 6/3/24, at 8.

12 The court’s interruption of Mr. Addison’s testimony at the June 2024 hearing

impaired DHS’s ability to show where Child was then living. During what

testimony the court permitted, Mr. Addison stated he made Mother aware she

would not be able to “have her kids back” until her housing situation stabilized,

N.T., 6/3/24, at 16, which clearly showed Child had remained in care.

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and Child could stay with either Grandmother or Father, but an investigation

proved this statement was untrue. See Dependency Petition, 1/30/24, at 2-

3. With respect to Great-Grandmother, the evidence at the February 2024

dependency hearing demonstrated Great-Grandmother lived in a senior

facility, the management was permitting Mother to stay there temporarily

but she could be evicted at any time. See N.T., 2/26/24, at 8-9. However,

Ms. Williams, the DHS investigator, testified it was not even clear if Mother

was residing at the senior facility in February 2024, see id., and by the time

of the June 2024 hearing, Mother resided not with Great-Grandmother, but

Uncle. See N.T., 6/3/24, at 13-14. Moreover, Great-Grandmother was not

present at either hearing and there is nothing of record to support a claim she

was willing to house both Mother and Child and/or that the management would

permit an infant to reside in a senior living facility. Additionally, DHS had

never inspected the residence for suitability and safety. Finally, as the trial

court conceded, this Court has found casual housing arrangements where the

parent does not have a lease to be unsuitable. See Trial Court Opinion,

8/13/24, at 5; Interest of A.J.F., 318 A.3d 1288 (Pa. Super., filed April 29,

2024), at *4.13

The only other possible relative placement Mother offered was with

Uncle. However, the testimony at the February 2024 dependency hearing

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13 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision

of Superior Court filed after May 1, 2019, may be cited for persuasive value).

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established Uncle failed the mandatory clearances. See N.T., 2/26/24, at 13.

Thus, Mother and Child could not reside with Uncle, even without regard to

the facts Mother refused to supply either DHS or CUA with Uncle’s address or

contact information, Uncle had not reached out to contact the CUA or DHS to

have his home assessed, and Mr. Addison had previously warned Mother her

failure to cooperate and obtain suitable housing would result in Child’s

remaining in care. See N.T., 6/3/24, at 16.

The record is also devoid of support for the trial court’s sua sponte

decision to defer adjudication in this matter. Even with the diminished record

that resulted from the trial court’s erroneous evidentiary rulings, the record

demonstrated, at the time of the first hearing Child was less than two months

old, had recently been released from intensive care, and had not resided with

Mother. See Dependency Petition, 1/30/24, at 1-3 (unnumbered); N.T.,

2/26/24, at 16. The record also reflected Mother was homeless, drifted

between Great-Grandmother’s residence and Uncle’s, both residences were

unsuitable for Child, and neither of the other relatives offered by Mother as

kinship resources were willing to allow Mother and Child to live with them.

See Dependency Petition, 1/30/24, at 1-3 (unnumbered); N.T., 2/26/24, at

8-19. The record also demonstrates Mother was evasive, untruthful, and

uncooperative. See id. This evidence was wholly sufficient to demonstrate

Child was without proper parental care and no such care was immediately

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available. See In re A.B., 63 A.3d at 349; In re M.W., 942 A.2d at 428;

see also Interest of A.D.-G., 263 A.3d at 30.

Further, when the evidence at the first hearing is supplemented by the

diminished testimony the trial court allowed at the June 2024 dependency

hearing, the court’s dependency ruling is further shown to be unsustainable.

Despite the court’s sua sponte grant of a four-month grace period, Mother had

not found housing, was still living with Uncle, and was refusing to cooperate

with DHS and CUA. See N.T., 6/3/24, at 12-17. Moreover, Mother was not

visiting regularly with Child. See id. at 9. For this additional reason, the trial

court erred and abused its discretion in not adjudicating Child dependent. The

trial court’s legally and factually erroneous ruling denying dependency cannot

stand.

In its second issue, as an alternative basis for relief, DHS contends the

trial court violated its right to due process of law by prejudging the case before

hearing the evidence. See DHS’s Brief at 24-26. The trial court disagrees,

claiming that both the admissibility of evidence and the weight to be afforded

such evidence was within its purview and it did not violate DHS’s right to due

process of law. See Trial Court Opinion, 8/13/24, at 8.

“The fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.” Matthews v.

Eldridge, 424 U.S. 319, 333 (1976) (citations omitted, emphasis added). In

dependency cases, this Court has held due process is satisfied where the party

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is afforded sufficient notice, the opportunity to be heard, and the chance to

defend oneself in an impartial tribunal. See generally, In re Adoption of

J.N.F.. 887 A.2d 775 (Pa. Super. 2005); In the Interest of A.P., 692 A.2d

240 (Pa. Super. 2007); see also Donna H., 602 A.2d at 1385 (noting the

failure of the trial court to allow the agency to make a full and complete record

denied both the trial court and the appellate court the opportunity to properly

evaluate the case).

Here the record of the case, as discussed in detail above, demonstrates

the trial court denied DHS a full and fair opportunity to be heard as due

process requires. The trial court, often acting sua sponte and without any

basis in law, arbitrarily and capriciously excluded relevant evidence,

interrupted DHS’s witnesses’ testimony, unnecessarily continued the

proceedings, then refused to listen to further testimony at the continued

proceedings, and informed counsel for the child and parents that cross-

examination was unnecessary. A review of the notes of testimony shows the

trial court appeared to have pre-judged the matter, and, for reasons not

apparent from the record, there is an inference the court blamed DHS for

Mother’s failure to find suitable housing while ignoring the evidence of

Mother’s dishonesty and failure to cooperate with DHS. See N.T., 2/26/24,

at 7, 15, 17-18, 20; N.T., 6/3/24, at 16-21.

The court analyzed the case under a framework inappropriately

imported from the Adoption Act and then faulted DHS for not meeting the

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higher termination standard and imposed a requirement not supported by

dependency law to show Mother was at fault for her lack of suitable housing,

while simultaneously failing to cite to any pertinent law justifying its exclusion

of relevant evidence. See id. at 6-10. Accordingly, we are constrained to

find on this record, the trial court violated DHS’s right to due process of law.

In closing, we express our profound dissatisfaction with the trial court’s

actions in this case. We are appalled by the trial court’s willingness to give

full physical and legal custody of a less than six month-old infant to a Mother

who had never cared for Child, had not visited the Child regularly, had no

known address or means of support, and who refused to cooperate with DHS

or CUA, based upon the court’s factually-unsupported speculation that

relatives, who had already either been deemed unsuitable and/or had

expressly disclaimed any interest in caring for Child, would permit Mother and

Child to reside with them. As we discussed in Matter of DeSavage, extreme

care must be taken in cases concerning infants lest the court’s “experiment

proves unsuccessful, [and] the consequences to the child could be seriously

detrimental or even fatal.” DeSavage, 360 A.2d at 242. The trial court failed

in every possible way to take such care in this matter.

Therefore, for all the foregoing reasons, we reverse the trial court’s

order discharging the dependency petition, remand for an adjudication of

dependency, and for a dispositional hearing consistent with this opinion. In

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so doing, we wish to make it abundantly clear that we expect the trial court

to scrupulously comply with the dictates of the law as cited above.

Order reversed. Case remanded. Jurisdiction relinquished.

Date: 1/27/2025

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