# In the Int. of: W.P., Appeal of: W.P.

> Superior Court of Pennsylvania · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11122365

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** August 18, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Lazarus
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

J-A08007-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: W.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: W.P., MINOR :
:
:
:
: No. 2974 EDA 2024

Appeal from the Order Entered November 4, 2024
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001126-2023

BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED AUGUST 18, 2025

W.P. (Child), a minor,1 appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, Juvenile Division, denying the

Philadelphia Department of Human Services’ (DHS) petition for dependency. 2

We affirm.

____________________________________________

1 Child is represented on appeal by the Defender Association of Philadelphia,

Child Advocacy Unit. DHS has not filed a brief in this matter. See Letter
from the City of Philadelphia DHS, 1/29/25.

2 The court’s order reads as follows:

The Child is not Dependent pursuant to the Pennsylvania Juvenile
Act and [] the petition for dependency is dismissed. Any
temporary legal and physical custody by the Philadelphia County
Human Services of the Child shall be discharged. . . . Mother is
ready[,] willing[,] and able to care [for Child]. Child advocate and
DHS to cooperate for [Child’s] safe return back to Brazil.

Order of Adjudication and Disposition, 11/4/24.
J-A08007-25

In 2021, when Child was fourteen years old, he came to the United

States3 to live with his maternal uncle, W.M. (Uncle) and an unidentified aunt.

His parents remained in Brazil. Child’s parents were told that he was going to

school, but, according to Child, he was working in Uncle’s auto shop for

approximately two years, six days a week, and he was never enrolled in

school. See N.T. Adjudicatory Hearing, 11/4/24, at 40-41. Child testified

Uncle mistreated him. Id. at 42.

On December 13, 2023, DHS received a Child Protective Services (CPS)

report alleging that Child was being labor-trafficked by Uncle. On December

20, 2023, DHS obtained an order of protective custody (OPC); Child was

placed in a group home and eventually in a foster home. The court held a

shelter care hearing on December 22, 2023. Following the hearing, the court

placed Child in the temporary custody of DHS.

On January 4, 2024, DHS filed a dependency petition, and the court

listed the matter for an adjudicatory hearing on February 1, 2024. The

adjudicatory hearing, continued five times, was ultimately held on November

4, 2024. Mother, who lives in Brazil, did not attend the hearing, but was

represented at the hearing by Robin Banister, Esquire.

____________________________________________

3 It appears Child was abandoned at the airport in New York by the person

who accompanied him on the flight from Brazil. Police contacted Uncle, who
is Mother’s brother, in Philadelphia. Child testified: “I came here because
the guy that brought us said he was going to bring my mother afterwards, but
when we got to the airport the guy that brought me abandoned me. . . . He
was my mom’s ex’s friend.” N.T. Adjudicatory Hearing, 11/4/24, at 36.

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J-A08007-25

On November 4, 2024, following the hearing, the court entered an order

finding Child was not dependent, discharging the dependency petition, and

discharging the temporary commitment to DHS. On November 11, 2024,

Child filed a motion for reconsideration4 and an application for a stay of the

discharge of the dependency petition and commitment to DHS. On November

27, 2024, Child filed a notice of appeal, and, on December 3, 2024, Child filed

an application for stay in this Court.

On December 13, 2024, this Court entered an order remanding the case

for the trial court to address the application for stay. On December 16, 2024,

the trial court denied the motion to stay the order, finding Child did not meet

the statutory definition of a “dependent” child pursuant to 42 Pa.C.S.A. §

6302(1), because Mother was “ready, willing, and able to care for [] Child.”

Order, 12/16/24. The trial court found Child’s needs and welfare would be

best served in Mother’s care and that it would be in Child’s best interest “to

be reunited with his Mother forthwith.” Id. Thereafter, Child sought a stay in

this Court. On January 30, 2025, this Court entered the following order:

The “Application for Stay,” filed December 26, 2024, by the Child
Advocate on behalf of Child to stay the Order of November 4,
2024, is GRANTED, in part, and DENIED, in part, in the best
interest of the Child. The November 4, 2024 Order is STAYED
except for the directive that DHS and Child Advocate continue the
process of obtaining Child’s birth certificate from the Consulate in
New York.

____________________________________________

4 The court did not act on the motion for reconsideration, and it was denied

by operation of law. See Pa.R.A.P. 1701(b)(3) - Explanatory Note.

-3-
J-A08007-25

Per Curiam Order, 1/24/25.

On appeal, Child raises the following issues:

1. The trial court erred as a matter of law and abused its
discretion by not adjudicating Child dependent when the
evidence presented by [DHS] and Child established, by clear
and convincing evidence, that Child was a dependent child
under the Juvenile Act, 42 Pa.C.S.[A.] § 6302.

2. The trial court erred as a matter of law and abused its
discretion by not adjudicating Child dependent in a manner
that effectuated the purposes of the Juvenile Act, where
DHS and Child presented clear and convincing evidence for
the trial court to conclude that adjudicating Child dependent
best served Child’s needs and welfare under 42 Pa.C.S.[A.]
§ 6301(b)(1.1).

Appellant’s Brief, at 3.

The standard of review in dependency cases requires an appellate court

to accept the findings of fact and credibility determinations of the juvenile

court if they are supported by the record; but it does not require the appellate

court to accept the juvenile court’s inferences or conclusions of law. Interest

of I.R.-R., 208 A.3d 514, 519 (Pa. Super. 2019) (citing In re R.J.T., 9 A.3d

1179, 1190 (Pa. 2010)). As such, we review for an abuse of discretion. Id.

The appellate court must ensure that the record represents a comprehensive

inquiry and that the trial court has applied the appropriate legal principles to

the record. See In re L.B., 229 A.3d 971, 977 (Pa. Super. 2020).

At the adjudicatory hearing, the court heard testimony from various

individuals and representatives of agencies that were instrumental in

protecting Child and obtaining foster care placement for him. Additionally, the

-4-
J-A08007-25

court heard from Child, who is doing well in placement and in school.

However, the court determined the evidence did not support a finding of

dependency where Mother was ready to care for Child:

Based on the evidence that I have received, all of the allegations
are as to the uncle [from] whom he’s been removed or actually
escaped. There are no allegations indicating that his mother is in
any way unable to care for her son. [DHS] appropriately followed
up with the Brazilian government in order to obtain the necessary
reports that are reflected in [Exhibits] DHS-1 and DHS-2
[International Social Services Home Study.] [5] It appears we have
a Justin S.[6] case, where the mother has presented herself as
ready, willing, and able. I have no idea where the father is.
However, [M]other appears to have expressed that she wants to
care for [Child], and I have not heard anything to indicate
otherwise. I cannot under these circumstances adjudicate [Child]
____________________________________________

5 The report reads, in part:

[Mother] said her biggest dream in life right now is to pick up her
children at the airport. [She] feels a lot of guilt and regret, which
can be seen not only in her words but in her countenance when
she tells the story of having authorized her children to go to the
U.S in July 2022 since she was organizing to go in September of
the same year. It turns out that when [Mother] tried to migrate,
Mexico’s borders were closed and[,] sometime later, the person
who would lend her the money to emigrate no longer had a way
to help her. Since then, [Mother] has been trying to bring her
children back to Brazil. She says that [Child,] since he arrived,
wants to return, while [Mother] herself advised her son to seek
some police service in the United States and said that he was
without his mother and wanted to return to Brazil.

Exhibit DHS-1, at 4.

6 In the Interest of Justin S., 543 A.2d 1192, 1197 (Pa. Super. 1988)
(“Only if the court concludes by ‘clear and convincing evidence’ that proper
parental care and control are not available will it adjudicate a child dependent,
and, absent such a finding, custody must be returned to the parents
immediately.”). See also 42 Pa.C.S.A. § 6302.

-5-
J-A08007-25

dependent. The Child Advocate and [DHS] are to cooperate in
terms of working with the Brazilian government for safe transport
back to Brazil.

N.T. Adjudicatory Hearing, 11/4/24, at 57.

After our review, we discern no reason to doubt the trial court’s findings.

Though our review is quite broad, it is fundamentally limited by our inability

to nullify the factfinding responsibilities of the lower court. See Interest of

I.R.-R., supra. See also N.T. Adjudicatory Hearing, 11/4/24, at 10, 11

(Mother’s counsel stating Mother “wants [Child] to return to her in Brazil[,]

and Mother is “ready, willing, and able.”). See also id. at 24 (Theo Ciccarellii

Cornetta, Child Advocate Supervisor, testifying she talked with Mother “via

the WhatsApp app,” and Mother was “ready to care for [Child.]”); id. at 26

(Kristen Abney, DHS social worker, testifying Mother was employed in Brazil

and that international home study indicated her home was “approved”); id.

at 28-29 (January Llaverias, Child’s case manager at Community Umbrella

Agency, testifying Mother wants Child to come home to Brazil); id. at 53

(Stephanie Lubert, Child’s immigration attorney, testifying Child, an

undocumented immigrant, has a “relatively strong case for a labor trafficking

[-]based T visa.”).7

____________________________________________

7 T nonimmigrant status is a temporary immigration benefit, generally granted

for four years; T nonimmigrants who qualify may also be able to adjust their
status and become lawful permanent residents, i.e., obtain a Green Card. See
https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-
nonimmigrant-status (last visited 7/30/25).

-6-
J-A08007-25

After careful consideration of the notes of testimony from the

adjudication hearing, the certified record, Child’s brief, and the relevant case

law, we affirm on the basis of the opinion authored by the Honorable Cateria

R. McCabe. Accordingly, we lift the stay entered in this Court on January 30,

2025, and we affirm the trial court’s order denying DHS’s petition for

dependency. We instruct the parties to attach a copy of Judge McCabe’s

decision in the event of further proceedings in this matter.

Order affirmed.

Date: 8/18/2025

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01.36 PM
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.. _-5 3'. 23

IN THE
IN THE COURT
COURT OF
OF COMMON
COMMON PLEAS
PLEAS .
. »'
.' ‘
»'
FOR THE COUNTY
FOR THE OF PHILADELPHIA
COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
FAMILY COURT DIVISION -- DEPENDENCY
DEPENDENCY BRANCH
BRANCH

IN RE:
IN RE:

W.P.,
W.P. aa minor,
W.P. minor, D/O/B:
D/0/B: 01/04/2008
D/0/B: 01/04/2008 : CP-51-DP-0001 126-2023
CP-51-DP-0001126-2023
CP-51-DP-0001126-2023
: 51-FN-001777-2023
SL-FN.001777.2023
SL-FN.001777.2023

APPEAL OF: W.P.
APPEAL OF: W.P. : Superior Court
Superior Court No.
No, 2974
No, 2974 EDA
EDA 2024
2024

OPINION
OPINION

I.II INTRODUCTION
INTRODUCTION

W.P. (“the Child”), by
(the Child"),
W.P. (the Child"), by and
and through Guardian Ad
his Guardian
through his Ad Litem/Child Advocate ("Appellant"),
Litem/Child Advocate (“Appellant”),
("Appellant"),

appeals from the
appeals from the Order entered by
Order entered by this Court on
this Court on November 4, 2024,
November 4, 2024, finding
finding that
that the Child was
the Child not
was not

Testimony for
dependent. Testimony
dependent. the Adjudicatory
for the Adjudicatory Hearing
Hearing was
was heard on November
heard on 4, 2024.
November 4, 2024. The
The

transcript attached as
is attached
transcript is Court’s Exhibit
as Court's
Court's A. At
Exhibit A. the close
At the close of
of the
the evidentiary
evidentiary hearing,
evidentiary the trial
hearing, the
hearing, court
trial court

found that clear
found that and convincing
clear and convincing evidence
evidence did
did not
not exist
exist to adjudicate the
to adjudicate Child dependent
the Child dependent based
dependent on
based on

present inability because
present inability because Mother
Mother was
was ready,
ready, willing,
willing, and able to
and able care for
to care for the Child in
the Child Brazil.
Brazil. The
in Brazil. The

Court discharged
Court discharged the Child’s dependency
Child's
the Child's dependency petition
petition on
on November
November 4,
4, 2024,
2024, and
and ordered the Child
ordered the Child

Advocate and
Advocate and the
the Philadelphia
Philadelphia Department of Human
Department of Services (DHS)
Human Services (DHS) "to
“to cooperate for
"to cooperate
cooperate for youth’s
youth's
youth's

safe return
safe return back
return to Brazil.”
back to Brazil." (See
Brazil." (See Trial Court Order
Trial Count
Count 11/4/2024). For
Order 11/4/2024).
11/4/2024). For the following reasons,
the following this
reasons, this

Court’s decision
Court's
Court's decision should
should be
be affirmed.
affirmed
affirmed

II.
II. FACTUAL and PROCEDURAL
FACTUAL and PROCEDURAL HISTORY
HISTORY
The
The relevant facts and
relevant facts and procedural
procedural history
history of
of this
this case are as
case are as follows. DHS became
follows. DHS became aware of
aware of

this
this family December I9,
on December
family on 19,
I9, 2023, when itit received
2023, when received aa Child
Child Protected
Protected Services (CPS) report
Services (CPS)
(CPS) report
report

allegations that
containing allegations
containing that W.P.
W.P. was
was being labor trafficked
being labor by this
by
trafficked by this maternal
maternal uncle.
uncle. During the
During the
During

1
investigation, the Child stated that his Mother was told that he would be attending school while

living with his uncle.
uncle. He was never enrolled in school in Philadelphia. On December 19, 2023,

DHS obtained an Order of Protective Custody (OP€)
(OPC) for the Child. Mother resided in Brazil and

the Child was at risk for further abuse in the care of his uncle in Philadelphia. DHS filed a

Dependency
Dependency Petition on behalf of the Child on January 4, 2024.
2024

An Adjudicatory
Adjudicatory Hearing was held on November 4, 2024.'
2024. 1Counsel for DHS called their first

witness, DHS Investigator, Kristin Abney.
Abney. (N.T. 11/4/2024,
11/4/2024, p. 14-26 (Exhibit A)).
A)). Ms.
Ms. Abney

testified that the Child entered DHS care in December 2023 due to allegations that the

fifteen-year-old
fifteen-year-old child was living
living with his uncle, was not enrolled in school, and instead worked in

auto body
body shop throughout day. (N.T. 1
throughout the day.(N.T 1/4/2024, p. IS
11/4/2024, 15
IS at 2-21 (Exhibit A)). When Ms.
Ms. Abney

spoke to the Child about the allegations,
spoke allegations, the Child stated that when he immigrated to the United

States, he was abandoned in New York.
York. Police stopped him and called his uncle, who then picked

him up.
up. The Child stated that he began
began residing with his uncle in Philadelphia for approximately

two years. (N.T. 1
years. (N.T 1/4/2024, p.
11/4/2024, 16 at 6-24 (Exhibit A)).
p. I6 to Ms.
A)). The Child also stated to Ms. Abney that he

was never enrolled in school since arriving
arriving in the United States. He instead worked in an autobody

shop
shop with his uncle.
uncle. He also told Ms.
Ms. Abney that his uncle would physically threaten him if he did

not “complete
"complete certain work tasks."
tasks.” (N.T. 11/4/2024, p. 16
I16 at 25; p. 17
I7 at 1-13 A)). The
I-13 (Exhibit A)).

Child also stated that when he told Mother about the physical threats, she told him to
to “find
find a police

station,”
station," which prompted
prompted the Child to flee from his uncle’s
uncle's home and contact the police. (N.T.
police, (N.T

11/4/2024, p.
p. 17 at
at 22-25; p. 18 at 1-2 (Exhibit A)). When questioned by Mother’s
Mother's counsel,

1The Adjudicatory
Te Adjudicatory Hearings
Hearings scheduled for February 1, 2024, March 20, 2024, May 15, 2024, and July 3, 2024, were
continued due to further
further investigation.
investigation. The September 4, 2024, Adjudicatory Hearing was also continued due to
further investigation.
investigation. The Brazilian home study and criminal clearances were not completed and returned to DHS
DHS.

2
Ms. Abney testified that Mother's
Mother’s actions and response to the incident were appropriate.
appropriate. (N.T,
(N.T.

1 1/4/2024, p. 25 at 23-25; p. 26 at I-7
11/4/2024, 1-7 (Exhibit A)).
A)).

Prior to immigrating to the United States, the Child resided with Mother in Brazil. Mother

Ms, Abney spoke to Mother about the allegations
continues to reside in Brazil. When Ms. allegations via

WhatsApp, Child’s uncle was supposed
Whats.App, Mother stated that the Child's supposed to enroll him in school in

Philadelphia while the Child resided with him.
him. Mother also stated that she wished for the Child to

return
retum to her care in Brazil and that she was ready to care for him. Ms.
Ms. Abney
Abney also testified that

the report was invalid, but she was not certain. (N.T,
(N.T. 11/4/2024, p. I8
18 at 7-14; p.
p. 19
I9 at 16-23;
16.23;

p.p. 24 at 22-24; p. 25 at 10-12 (Exhibit A)).
at22-24;

When Ms. Abney concluded her investigation, she testified that she submitted paperwork for

an international home study on Mother’s
Mother's home in Brazil as well as for background
back ground clearances to

be completed. The results of the international home study and the background clearances for

Mother’s home were entered in evidence as DHS-
Mother's DHS-1 and DHS-2.
DHS-2. They
They are attached as Count's
Court’s

Exhibit B.
B. The clearances indicated that there was no criminal history found for Mother or the two

other adults residing in the home. (N.T. 11/4/2024, p.
p. 20 at 1-17 (Exhibit A)). On

cross-examination by Mother’s
Mother's counsel, Ms.
Ms. Abney testified that there was no information

indicating that Mother was not ready, willing, and able to care for the Child.
Child. Ms. Abney also

testified that Mother was employed in Brazil and that the international home study indicated that

Mother’s
Mother's home was "approved."
“approved.” (N.T. 11/4/2024,p.
11/4/2024, p. 26 at 8-19 (Exhibit A)).

Counsel for DHS called their next witness, Community Umbrella Agency
Agency (CUA) Case

Manager, January Llaverias. (N.
(N.T.
T. 11/4/2024, p.
p. 27-35 (Exhibit A)). Mr.
Mr. Llaverias testified that

he was assigned to this case in July 2024.
2024. Mr
Mr. Llaverias testified that when he spoke with Mother,

she indicated that she wished for the Child to be returned to her care in Brazil and her position has

never wavered.
wavered. (N.T. 1 1/4/2024, p. 27 at 20-25; p. 28 at 24-25; p. 29 at 1-6 (Exhibit A)).
11/4/2024, A)). When

3
Mr. Llaverias spoke to the Child regarding his wishes, the Child indicated that he wished
wished to remain
to remain

in the United States because he has a more comfortable life and more opportunities
opportunities in
in the
the United
United

States than in Brazil. When Mr. Llaverias spoke to the Child, he testified that the Child
Child worked in
worked in

a mechanic shop for at least six days out of the week and that his uncle never enrolled him in
enrolled him in

school. The Child told Mr. Llaverias that Mother knew this but felt she could not do anything
anything about
about

itit because she was still in Brazil.
Brazil. He testified that the Child and Mother spoke “on and off."
spoke "on off.” (N.T
(N.T.

1 1/4/2024, p. 29 at7-13;
11/4/2024, 7-13; p. 30 at 4-16, 24-25 (Exhibit
(Exhibit A))
A)).

The Child also testified at the Adjudicatory Hearing. (N.T. 1
Hearing. (N.T. 1/4/2024, p.
11/4/2024, p. 36-52 (Exhibit
(Exhibit A)).
A))

He testified that he came to the United States when he was fourteen years
years old.
old. The Child stated
stated

that he arrived with a family acquaintance who told him that he would bring
bring his Mother afterward,
afterward,

however he was abandoned at the airport. (N,T.
(N.T. 1 1/4/2024, p.
11/4/2024, p. 36 at 16-23 (Exhibit
(Exhibit A)).
A)). He testified

that he did not know the man and that the man told immigration
immigration authorities that he was the Chi4'¢
Child’s

father so they could enter the country. The man's
man’s name was listed on the Child's
Child’s birth certificate.

(N.T . 1
(N.T. 1/4/2024, p. 37 at 1I-11,
11/4/2024, -1 1; p.
p. 38 at 22-23 (Exhibit A)). The Child stated that he began residing
began residing

who immediately put him to work.
with his uncle who work. He testified that he asked his uncle about being
being

enrolled in school, but his uncle stated he had to "work
“work and not study.”
study." The testimony
testimony reflected

that he worked six
six days a week. The Child further testified that when he told Mother, she stated

that she could not do anything about it. He also testified that he spoke
spoke to Mother approximately
approximately

two or three times per week. The Child then testified that his uncle began
began hitting
hitting him shortly
shortly after

he arrived and deliberately cut his arm while they were working.
working. (N.T.
(N.T 1 1/4/2024, p.
11/4/2024, p. 40 at 3-25;
3-25;

p. 4l
41 at
at 1-24 (Exhibit A)). The Child told Mother about the incident and sent her pictures
pictures of the

cut. Mother stated that she "couldn't
“couldn’t believe he did that"
that” to him.
him. After Mother learned of the

incident, she told the Child to leave his uncle’s
uncle's house and to go to the police. The Child listened,

left his uncle's
uncle’s home, and did not return. (N.T.
retum. (N. T 11/4/2024, p.
p. 41 at 23-24; p.
p. 43 at 14-17; p.
p. 44 at

4
7-8 (Exhibit A)).
7.8 A)). The testimony reflected that the Child sometimes told Mother when his uncle hit
hit

him, and that she believed him. However, the testimony reflected that Mother felt that there was
was

nothing she could do to help the Child other than to tell him to go
go to the police.
police. (N.T.
(N.T. 1 1/4/2024,
11/4/2024,

p. 45 at 3-12 (Exhibit A)),
A))

On cross-examination by Mother’s
Mother's counsel, the Child testified that the original
original plan
plan was for

him to come to the United States first and that Mother would meet him here thereafter. Howevee
However,

the man abandoned the Child at the airport, Mother could no longer
after the longer come to the United States.

The Child further testified that when he resided in Brazil, he lived in a home with his Mother,

grandmother, and his other siblings. The Child stated that some of his siblings
siblings still reside with

Mother and grandmother, but that his younger brother currently resides in
in the United States. The

Child testified that Mother told him she felt sorry for sending
sending him and his brother to the United

States. 11/4/2024, p.
States. (N.T. 11/4/2024, p. 47; p. 48 at 17-20 (Exhibit
(Exhibit A)).
A)). On cross-examination by counsel for

DHS, the Child testified that when he resided with Mother in Brazil, he attended school, had

enough food in the home, and felt safe in Mother’s
Mother's home. (NT
(N.T. 1 1/4/2024, p.
11/4/2024, p. 50 at 10-22 (Exhibit
(Exhibit

A)).

Following argument of counsel on November 4, 2024, this Court found that W.P
W.P. did not meet

the definition of a dependent child pursuant to 42 Pa. C.S.A. §6302(1)
$6302(1) of the Juvenile Aet
Act and that

Mother was ready, willing, and able to care for the Child in Brazil. The Court discharged the

Child’s dependency petition on November 4, 2024 and ordered the Child Advocate and DHS "to
Child's “to

cooperate for youth’s
youth's safe return back to Brazil.”
Brazil." (See Trial Court Order 1 1/4/2024). Appellant
11/4/2024). Appellant

filed the present Notice of Appeal and a Concise Statement of Errors Complained
Complained of on Appeal
Appeal on

November 6, 2024.

5
HL
II. STATEMENT OF
OE MATTERS COMPLAINED ON APPEAL

In the Pa. R.A.P. 1925(b) Statement of Matters Complained of on Appeal,
Pa. R.A.P. regarding the
Appeal, regarding

April 17, 2024, Order,
Order, the Appellant identifies the following
following issue(s):
issue(s):

1
•. The Trial Court erred as a matter of law and abused its discretion byby not
adjudicating Appellant dependent when the evidence presented
presented byby the
Department of Human Services ("DHS")
(“DHS”) and Appellant established, by
by clear
and convincing evidence, that Appellant was a dependent child under the
Act, 42 Pa. C.S.
Juvenile Aet, C.S. §6302.
$6302

2. The
The Trial Court erred as a matter of law and abused its discretion by by
determining that Mother was a ready, willing, and able parent, where DHS and
Appellant proved, by clear and convincing evidence, that Mother sent Appellant
Appellant
to the United States with an acquaintance, was aware of Appellant'sAppellant’s
mistreatment at the hands of his caretaker, and nonetheless did nothing
nothing to
protect Appellant.
Appellant

Court erred as a matter of law and abused its discretion by
3. The Trial Count by
determining that Mother was a ready, willing, and able parent, where Mother
was not immediately available to care for Appellant.

4. The Trial Court erred as a matter of law and abused its discretion by by not
adjudicating Appellant dependent in a manner that effectuated the purposes
purposes of
the Juvenile Act, where DHS and Appellant presented clear and convincing
evidence for the Trial Court to conclude that adjudicating
adjudicating Appellant dependent
best served Appellant’s
Appellant's needs and welfare under 42 Pa. C.S. $6301(b)(1.1).
§6301(b)(l . 1
).

5. Child Advocate reserved the right to amend this Concise Statement of Matters
Complained of on Appeal upon receipt and review of the final transcript in this
matter.

IV. OF REVIEW
STANDARD OE

The proper standard of review in dependency cases is abuse of discretion.
discretion. "An
“An abuse of

discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or

misapplies the law, or the judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been

abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107,
abused." 107. 111 Super. 2007)
1H1 (Pa. Super. 2007).

6
Our standard of review of dispositional orders in juvenile proceedings
proceedings is settled. The Juvenile
Juvenile

Act grants broad discretion to juvenile courts in determining appropriate dispositions, In
appropriate dispositions. Irere CA.
C.A.G.,
G

89 A.3d 704, 709 (Pa. Super. 2014).
2014). Indeed, the Superior Court will not disturb the lower court's
court's

disposition absent a manifest abuse of discretion. In the Interest of
ofJ.D.,
4.D, 798 A.2d 210,
210, 213 (Pa
(Pa.

Super. 2002). The standard of review requires an appellate
review in dependency cases requires accept the
appellate court to accept

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

but does not require the appellate court to accept the lower court's inferences or conclusions of

law.
law. In
Irere R.J.T., 9 A.3d 1
RAT,9A.3d 179, 1190 (Pa.
1179,1190 (Pa. 2010). Appellate review of a weight
weight of the evidence claim

is limited to a review of the judge's exercise of discretion. See Commonwealth v. 689
• Widmer,689

A.2d 21 1 (Pa. 1997), and Commonwealth v.v. Brown, 648 A.24
211(Pa. A.2d 1177,1189.1192
1177, 1189-1192 (Pa.
(Pa. 1994)
1994).

v.
V. DISCUSSION
A. The Trial
Trial Court did not Abuse its Discretion when it Found that that Chit
Child Was Not
Dependent
Dependent Pursuant to42Pa.CS.A.
Pursuant to 42 Pa. C.S.A, 86302(1
§6302(1 ) of the Juvenile Act
Aet

Appellant alleges in their Concise Statement of Matters Complained of on Appeal,
Appeal, that this

Court erred when it found that clear and convincing evidence was not present to adjudicate the

Child dependent because Mother was a ready, willing, and able parent. This Court disagrees
disagrees.

The burden of proof in a dependency proceeding is on the petitioner to demonstrate by
by clear

and convincing evidence that a child meets the statutory definition of dependency.
dependency. In
Irere GT,
G.T.,845
845

A.2d 870,872
870, 872 (Pa. Super. 2004). Clear and convincing evidence has been defined as testimony
testimony by

credible witnesses who clearly relate facts that are so clear, direct, weighty, and convincing
convincing as to

enable the trier of fact to come to a clear conviction without hesitance of the truth of precise facts

of J.M.,
in issue. In Interest of JM, 166 A.3d 408, 427 (Pa. Super. 2017) (citing
(citing In
I re Novosielski, 992

A.2d 89, 107 (Pa. 2010)).

7
The Juvenile Act
Aet defines a dependent child, in relevant part, who “is
part, as a child who without proper
is without proper

parental care or control, subsistence, education as required
required by law, or other
by law, other care
care or
or control
control

necessary for his physical, mental, or emotional health, or morals. A determination that there is
that there is aa

lack of proper parental care or control may be based upon
upon evidence of conduct
conduct by
by the
the parent,
parent,

guardian, or other custodian that places the health, safety,
safety, or welfare of the child at risk, including
risk, including

controlled substance
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(1).
risk." 42PA. 6302(1). The
The purpose
purpose

of the Juvenile Act
Aet is to preserve the unity of the family possible. 42 Pa.
family whenever possible. C.S.A.
Pa. CS.A

§63 01 (b)(1). A dependency trial is a two-part process. The first part
56301(b)(D). pant requires
requires the trial count
court to hear
hear

evidence and to determine, by clear and convincing
convincing evidence, that the child is without proper
proper

parental care, control, or subsistence necessary for the child's
child’s physical, mental, moral,
physical, mental, emotional
moral, or emotional

health. In re A.B., 63 A.3d 345, 349 (Pa Super.
health. I the child dependent,
Super. 2013). If the trial court finds the dependent,

the trial court may then move to the second part, in which it must make an appropriate
appropriate disposition
disposition

based upon an inquiry into the best interests of the child.
child. In re LC.,
LC, II,
IH, 900 A.2d 378, (Pa.
378, 381 (Pa.

Super. 2006).
2006). See In re A.E., A.2d 213, 215 (Pa. Super.
A.E, 722 A.24 Super. 1998)).
1998))

In finding that the Child did not meet
mcet the statutory
statutory definition of a "dependent
“dependent child"
child” pursuant
pursuant

42 Pa. CS.A.
to 42Pa. C.S.A. §$6302(1),
6302(1), this Count
Court determined that clear and convincing
convincing evidence was not

presented to demonstrate that the Child was without proper
proper parental
parental care and control.
control. The trial

court also based its determination on the Pennsylvania Superior Court's
Court’s holding
holding in In the Interest

S, a court cannot adjudge
ofJustin S., wherein this Court held that “a adjudge a child to be dependent
dependent when his

non-custodial parent is ready, willing, and able to provide the child with proper
proper parental
parental care and

control." In
control.” l the Interest of Justin S., 543 A.2d 1192, 1199 (Pa.
(Pa. Super.
Super. 1988).
1988). At the

November 4, 2024, Adjudicatory Hearing, Mother presented herself as ready,
ready, willing,
willing, and able to

care for the Child. There were no dependency concems
concerns or allegations
allegations asserted regarding
regarding Mother

8
in the dependency petition filed on January 4, 2024.
2024. It simply
simply stated that she resided in Brazil
Brazil.

After being informed of the allegations in the dependency
dependency petition,
petition, Mother consistently
consistently maintained
maintained

the position that she wished for her son to be returned to her care in Brazil. The circumstances that

brought the Child into care were due to the actions of his uncle. They occurred outside of Mother’s
uncle. They Mother's

knowledge and control.
control. It is clear to
to this Court that when sending
sending the Child to live with his uncle

in the United States, Mother believed that uncle would care for and enroll the Child in school,
school. It

is clear to this Court that Mother did not intend for the Child's
Child’s uncle to force him to work rather

than attend school. When Mother sent the Child to the United States, she planned
planned to arrive here

herself shortly thereafter. However, when the acquaintance who transported
transported the Child to the United

States abandoned him at the airport, his whereabouts become unknown.
unknown. He did not help
help Mother

come to the United States. The testimony and evidence reflected that Mother expressed
expressed remorse

and regret for sending
sending the
the Child to the United States.

The evidence and testimony also reflected that an international home study
study was
was conducted on

Mother’s
Mother's home and the home was deemed to be appropriate. The home study
study indicated that Mother

was employed and cared for two of the Child's
Child’s siblings in Brazil. The Child’s stepfather and
Child's stepfather

maternal grandmother also reside in the home with Mother. The international home study
study also

described Mother's
Mother’s willingness and motivation to care for the Child in great detail. Specifically,
Specifically, it

“her biggest dream in life right now is to pick up her children at the airport."
stated that "her airport.” The home

study also outlined Mother’s Child’s basic needs including
Mother's plan for providing for the Child's salary
including her salary

and access to medical and dental services in Brazil.
Brazil. (See DHS-1). Additionally,
Additionally, criminal clearances

were done on Mother and the residents of her home.
home. The
The results indicated that there was no

criminal history found for Mother or the other two adults residing
residing in the home. (See
(See DHS-2)
DHS-2).

There was no testimony presented that Mother failed to provide
provide appropriate
appropriate care for the Child

when he resided with her in Brazil. The Child’s uncontradicted testimony
The Child's testimony reflected that he was

9
enrolled in school when he resided with Mother in Brazil. was well fed and felt safe in Mother's
Brazil. He was Mother’s

care. There was no testimony presented that Mother labor-trafficked the Child. In fact, the
the

school, and that
testimony reflected that Mother sent the Child to live in the United States to attend school, tat

Mother was surprised to learn
leam that the Child was not enrolled.
enrolled. When Mother later became aware

that the Child was not attending school in his uncle's
uncle’s care, there was little she could do to rectify
rectify

the situation from Brazil.
Brazil. Appellant asserts that this Court erred in determining
determining that Mother was

ready, willing, and able to care for the Child because Mother was aware of the Child'g
Child’s

maltreatment in his uncle's
uncle’s care and "did
“did nothing to protect”
protect" him. However, the testimony
testimony

reflected that when Mother learned of the abuse by his uncle, she instructed the Child to leave the

house and to go to the police. The Child heeded Mother's
Mother’s advice and has not resided with his uncle

since then. Mother did all that she felt she could do
do to help her son while residing
residing in another

country. The DHS investigator also testified that Mother’s appropriate given
Mother's actions were appropriate given the

circumstances. There was also no testimony presented regarding Mother’s
circumstances. Mother's inability to protect
protect the

Child from further abuse if he were returned to her care in Brazil.
Brazil. Additionally,
Additionally, there is no reason

to believe that Mother would not reenroll the Child in school and provide for his needs in Brazil if

he were returned to her care.

The fundamental purpose of proceedings under the Juvenile Act is to preserve the unity
unity of the

family whenever possible. During the DHS investigation, the Child initially stated that he wished

to return to Mother's
Mother’s care in Brazil. (See Dependency Petition Paragraph C).
C). While the Child may
may

now prefer to remain in the United States, his reasons are not supported by
by the Juvenile Act.
Aet. The

opportunities that are available in the United States rather than in Brazil do not make this Child

dependent. Additionally, the Child's
Child’s preferences must be weighed against
against Mother's
Mother’s right to parent

child. The Child felt safe and well cared for in Mother’s
her child. attending school there.
Mother's home and was attending there

Two of his siblings reside in the home as well as his maternal grandmother
grandmother and stepfather.
stepfather. The
The

10
Child has many familial supports in Brazil who are willing
willing to assist him
him and
and Mother.
Mother. To allow this
To allow this

Child to in foster care and separated from
to remain in family when Mother is
from his family is a ready, willing, and
ready. willing. and

contrary to the purpose of the Juvenile Act.
able parent would be contrary Act. Applying
Applying the holding
holding in Justin
in Justin

S,- this Court properly
S properly found that W.P.
W.P. did not meet the definition of a dependent
dependent child pursuant
pursuant

to 42 Pa. C.S.A.$§6302(1).
to42Pa.C.SA. 6302( 1). Thus, this Court properly determined that the Child's needs and welfare
needs and welfare

would be best served in his Mother’s care.
Mother's care

I.
VI. CONCLUSION
(O\CL!SI0y

For these reasons,
reasons. this Court respectfully requests that the Order dated November 4, 2024.
2024. be

AFFIRMED.
AFFIRMED

COURT:
BY THE COURT

^^y
" ut4
'abe. Judge

11
II
CERTIFICATE OE
(ERTIEI(ATE OF SERVICE
SERVILE

1l hereby certify that a true and correct copy of the foregoing opinion has been filed and
foregoing opinion
served upon the following parties, as
as set forth
forth below
below:

PACFILE
AKFILF

Guardian Ad Litem: Counsel for Appellant, W.P.:
Theo
Theo Ciccarelli Coretta.
Cometta. Esquire
Lsquire F. Ehrlich. Esquire
Ilana F.
lana
Defender Association of Philadelphia Defender Association of Philadelphia
Philadelphia
1441 Sansom Street_
Street, 9lh 1or
Floor 1441 Sansom
Sansom Street. 9lh Floor
Street_9 p]or
Philadelphia, PA 19102
Philadelphia. Philadelphia.
Philadelphia, PA 19102

Counsel for Mother:
Robin Winthrop Banister,
Banister. Esquire
181 0 S. Rittenhouse Square. #806
1810S.
Philadelphia, PA 19103

Trial Counsel for DHS:
I rial (ounsel DHs:
Anne Cunningham. Esquire
Law
Law Department, Child Welfare Unit
1515
I515 Arch Street. I6th
Arch Street. 16th Floor
Philadelphia. Pa 19102

Appellate DHS:
ppellate Counsel for D4Is: Appellate
Appellate Counsel for DHS:HS:
Kathleen Bola Kim, Esquire Robert D. Aversa. Esquire
Law
L.aw Department. Child Welfare
welfare Unit Law Department, Child Welfare Unit
La
1515 Arch Street. 16th
I6th Floor 1515 Arch Street, I6th
Arch Steet, 16th Floor
Philadelphia.
Philadelphia, PA 19102 Philadelphia, PA 19102

Date Cateria R. McCabe. Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11122365. Public record. Not legal advice.