In the Interest of: L.C., a Minor

J-S42001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.C., A MINOR, IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.C., MOTHER,

Appellant No. 351 EDA 2015

Appeal from the Order Entered December 29, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0001916-2013

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 13, 2015

A.C., Mother, appeals from the trial court’s order entered December

29, 2014, which removed from Mother’s physical custody L.C. (“Child”), a

daughter born in May of 2013.1 The order transferred Child to the physical

custody of the Philadelphia County Department of Human Services (“DHS” or

“the Agency”) and also ordered Child to remain in the legal custody of DHS. 2

We affirm.

The trial court set forth the history of this case as follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

On November 7, 2013, Child had been adjudicated dependent under

section 6302(1) of the Juvenile Act, 42 Pa.C.S. §§ 6301-6365.

2

A.P., Child’s father, has not filed an appeal from the disposition order, nor

is he a party to this appeal.

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On November 7, 2013[,] [Child] was adjudicated

dependent by Master Lynne M. Summers. [The trial court

adopted the Master’s recommendation as an order on that same

date.]

On February 6, 2014[,] a permanency review hearing was

held. The [trial court] ordered that [C]hild remain in the custody

of [M]other at Gaudenzia drug and alcohol treatment program.

[M]other was ordered not to leave Gaudenzia drug and alcohol

treatment program with [C]hild under any circumstances.

Furthermore, the [c]ourt ordered that if [M]other left the drug

and alcohol treatment program against medical advice – DHS

would obtain an Order of Protective Custody (OPC). Moreover,

an OPC would also be obtained if [M]other tested positive for

drugs. Mother was referred to the Clinical Evaluation Unit (CEU)

for monitoring.

The matter was then listed on a regular basis before

judges of the Philadelphia Court of Common Pleas – Family Court

Division – Juvenile Branch pursuant to section 6351 of the

Juvenile Act, 42 Pa.C.S.A. § 6351, and evaluated for the purpose

of determining or reviewing the permanency plan of [C]hild.

On December 29, 2014, a Permanency Review Hearing for

[Child] was [held] before the Honorable Jonathan Q. Irvine[.]

Trial Court Opinion, 3/10/15, at 1-2 (unpaginated).

At the permanency review hearing on December 29, 2014, DHS

presented the testimony of its social worker, Jocelyn Childs and Norris

Holland, the Juvenile Justice Center (“JJC”) worker assigned to the case.

N.T., 12/29/14, at 5-13. Mother did not testify or present evidence.

On December 29, 2014, the trial court entered an order removing

Child from Mother’s physical custody and transferring Child to the physical

custody of DHS under section 6351 of the Juvenile Act. Child remained in

the legal custody of DHS. On January 22, 2015, Mother timely filed a notice

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of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

Mother presents the following issue for our review:

1. Whether the evidence was sufficient to support removal of

the Minor Child from Appellant, and place her into Agency

custody[?]

Mother’s Brief at 5.

Mother contends that DHS failed to meet its burden of proof in

demonstrating by clear and convincing evidence that Child needed to be

removed from Mother’s care and placed in the physical custody of DHS.

Mother has mental health issues, has admitted to using marijuana, and she

was not compliant with services. Mother’s Brief at 7. However, Mother

asserts that Child was safe and that Mother was meeting Child’s needs.

Mother alleges that her home was appropriate, and DHS had not observed

any instances where Mother was not properly supervising Child. Mother

urges that there was “little [evidence] to support any immediate risk to the

[C]hild.” Id. She claims that the evidence was insufficient to support the

trial court’s placement of Child in the physical custody of DHS.

The Pennsylvania Supreme Court recently set forth our standard of

review in a dependency case as follows:

“[T]he standard of review in dependency cases requires an

appellate court to accept findings of fact and credibility

determinations of the trial court if they are supported by the

record, but does not require the appellate court to accept the

lower court’s inferences or conclusions of law.” In re R.J.T.,

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608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for

abuse of discretion[.]

In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).

Further, we have stated that

[t]he burden of proof in a dependency proceeding is on the

petitioner to demonstrate by clear and convincing evidence that

a child meets that statutory definition of dependency.

In re: G., T., 845 A.2d 870, 872-873 (Pa. Super. 2004) (quotation marks

and citations omitted). Clear and convincing evidence has been defined as

testimony that is “so clear, direct, weighty, and convincing as to enable the

trier of facts to come to a clear conviction, without hesitancy, of the truth of

the precise facts in issue.” In the Interest of: A.B., A Minor, 63 A.3d

345, 349 (Pa. Super. 2013). In addition, this Court has stated that “[a]n

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, 111 (Pa. Super. 2007) (quotation

omitted).

In In re: D.A., A Minor, 801 A.2d 614 (Pa. Super. 2002) (en banc),

we explained the following:

[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to

make a finding that a child is dependent if the child meets the

statutory definition by clear and convincing evidence. If the

court finds that the child is dependent, then the court may make

an appropriate disposition of the child to protect the child’s

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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).

Id. at 617 (citation omitted). Further, the Court in In re: D.A. stated that

the question of whether a child is lacking proper parental care and control

involves two discrete questions: whether the child is presently without

proper care or control, and, if so, whether such care and control are

immediately available. Id. at 619.

In addition, we observe the following instruction of our Supreme

Court, as set forth in R.J.T.:

[W]e must defer to the trial judges who see and hear the parties

and can determine the credibility to be placed on each witness

and, premised thereon, gauge the likelihood of the success of

the current permanency plan. Even if an appellate court would

have made a different conclusion based on the cold record, we

are not in a position to reweigh the evidence and the credibility

determinations of the trial court.

Id., 9 A.3d at 1190.

The disposition of a child adjudicated dependent is governed by section

6351 of the Juvenile Act, which provides in relevant part as follows:

(a) General rule.--If the child is found to be a dependent child

the court may make any of the following orders of disposition

best suited to the safety, protection and physical, mental, and

moral welfare of the child:

(1) Permit the child to remain with his parents,

guardian, or other custodian, subject to conditions

and limitations as the court prescribes, including

supervision as directed by the court for the

protection of the child.

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(2) Subject to conditions and limitations as the court

prescribes transfer temporary legal custody to any of

the following:

(i) Any individual resident within or

without this Commonwealth, including

any relative, who, after study by the

probation officer or other person or

agency designated by the court, is found

by the court to be qualified to receive

and care for the child.

(ii) An agency or other private

organization licensed or otherwise

authorized by law to receive and provide

care for the child.

(iii) A public agency authorized by law to

receive and provide care for the child.

(2.1) Subject to conditions and limitations as the

court prescribes, transfer permanent legal custody to

an individual resident in or outside this

Commonwealth, including any relative, who, after

study by the probation officer or other person or

agency designated by the court, is found by the

court to be qualified to receive and care for the child.

A court order under this paragraph may set forth the

temporary visitation rights of the parents. The court

shall refer issues related to support and continuing

visitation by the parent to the section of the court of

common pleas that regularly determines support and

visitation.

42 Pa.C.S. § 6351(a).

Moreover, the trial court is required to make the following

preplacement findings:

(b) Required preplacement findings.-- Prior to entering any

order of disposition under subsection (a) that would remove a

dependent child from his home, the court shall enter findings on

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the record or in the order of court as follows:

(1) that continuation of the child in his home would

be contrary to the welfare, safety, or health of the

child;

(2) whether reasonable efforts were made prior to

the placement of the child to prevent or eliminate

the need for removal of the child from his home, if

the child has remained in his home pending such

disposition; or

(3) if preventive services were not offered due to the

necessity for an emergency placement, whether such

lack of services was reasonable under the

circumstances; or

(4) if the court has previously determined . . . that

reasonable efforts were not made to prevent the

initial removal of the child from his home, whether

reasonable efforts are under way to make it possible

for the child to return home; or

(5) if the child has a sibling who is subject to

removal from his home, whether reasonable efforts

were made prior to the placement of the child to

place the siblings together or whether such joint

placement is contrary to the safety or well-being of

the child or sibling.

The court shall not enter findings under paragraph (2), (3) or (4)

if the court previously determined that aggravated circumstances

exist and no new or additional reasonable efforts to prevent or

eliminate the need for removing the child from the home or to

preserve and reunify the family are required.

42 Pa.C.S. § 6351(b).

Thus, the trial court may make an appropriate disposition in order to

protect the child’s physical, mental and moral welfare, including transferring

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temporary custody to a public agency. In re: M.L., 757 A.2d 849, 850–851

(Pa. 2000). Also, this Court has stated:

Even after a child has been adjudicated dependent,

however, a court may not separate that child from his or her

parent unless it finds that the separation is clearly necessary.

“‘Such necessity is implicated where the welfare of the child

demands that he [or she] be taken from his [or her] parents’

custody.’”

In re: G., T., 845 A.2d at 873 (citations omitted) (alterations in original).

In In the Interest of: A.B., a panel of this Court explained the

following with regard to when a child should be removed from parental

custody:

The law is clear that a child should be removed

from her parent’s custody and placed in the custody

of a state agency only upon a showing that removal

is clearly necessary for the child’s well-being. In

addition, this court had held that clear necessity for

removal is not shown until the hearing court

determines that alternative services that would

enable the child to remain with her family are

unfeasible.

In re K.B., 276 Pa. Super. 419 A.2d 508, 515 (Pa. Super. 1980)

(citations omitted). In addition, this Court has stated: “[I]t is

not for this [C]ourt, but for the trial court as fact finder, to

determine whether [a child’s] removal from her family was

clearly necessary.” In re S.S., 438 Pa. Super. 62, 651 A.2d

174, 177 (1994).

Id. at 349-350. Indeed, “[b]oth Section 6351 and relevant case law state

that the main purpose of the disposition of a depend[e]nt child is to examine

what is in the best interest of that child.” In the Interest of: Z.W., C.C.,

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A.R., and N.S. v. Tioga County Human Services Agency, 710 A.2d

1176, 1178 (Pa. Super. 1998).

In her appellate brief, Mother relies upon the following four cases: In

Interest of Pernishek, 408 A.2d 872 (Pa. Super. 1979); Rinker Appeal,

117 A.2d 780 (Pa. Super. 1955); In the Interest of Feidler, 573 A.2d 587

(Pa. Super. 1990); and In re: D.A., supra. However, we conclude that

these cases do not support Mother’s claim on appeal.

In In re: E.P., a Minor, 841 A.2d 128 (Pa. Super. 2003), a panel of

this Court stated the following:

[T]his Court has previously interpreted the Juvenile Act to allow

for the removal of a dependent child from the custody of his

parents only where there is “clear necessity” for such removal

and where such removal can be reconciled with the “paramount

purpose” of preserving family unity. See e.g. In Interest of

LaRue, 244 Pa. Super. 218, 366 A.2d 1271, 1273 (Pa. Super.

1976); In Interest of Pernishek, 268 Pa. Super. 447, 408

A.2d 872, 877 (Pa. Super. 1979); In re Donna W., 284 Pa.

Super. 338, 425 A.2d 1132, 1134 (Pa. Super. 1981). These

cases, however, predate the 1998 amendments to the Juvenile

Act which, as we explain below, altered the purposes of the Act.

Moreover, this Court has also long held that such necessity for

removal is implicated where the welfare of the child demands

that he be taken from his parents’ custody. In re S.M., 418 Pa.

Super. 359, 614 A.2d 312, 314-315 (Pa. Super. 1992). “When a

child is . . . being neglected to its detriment, it is the right and

duty of the state, acting through its courts, to transfer the child’s

custody to persons who will treat the child in such a manner as

to foster its well-being and promote its health and happiness.”

In re Miller, 380 Pa. Super. 423, 552 A.2d 261 (Pa. Super.

1988) (citations omitted). This view is reflected in the 1998

amendment to section 6301(b)(1) of the Juvenile Act which

added an alternative paramount purpose of “providing another

alternative permanent family when the unity of the family cannot

be maintained.” 42 Pa.C.S.A. § 6301(b)(1). We agree with the

Allegheny County Office of Children, Youth and Families (“OCYF”)

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that by this amendment, part of the General Assembly’s

implementation of the Adoption and Safe Families Act of 1997

(“ASFA”), 42 U.S.C.A. § 629 (Public Law 105-89), “the focus of

the [Juvenile] Act shifted somewhat from its emphasis on family

unity to an emphasis on the child impacted by a dependency

adjudication. The amendments, in compliance with the Federal

legislation, emphasized permanency for children.”

In re: E.P., 841 A.2d at 132-133.

Mother has cited In Interest of Pernishek for the proposition that,

under the Juvenile Act, a child may not be separated from his parents unless

such separation is clearly necessary. Mother’s Brief at 8. As such, she has

appropriately set forth the standard for removal of the child from her care

under the current law, as cited above.

In Rinker Appeal, this Court reviewed an appeal from a trial court

order determining that three children were “neglected” under the Juvenile

Court Law, 11 P.S. 243, which was the statutory precursor to the current

Juvenile Act. As the Juvenile Court Law statute is no longer in effect, we

find Rinker Appeal to be inapplicable to the instant matter.

In Interest of Feidler, this Court reviewed an appeal from an order

removing two minor children from the home of their parents. The order

awarded legal and physical custody to the county children and youth

services agency under the Juvenile Act. The parents argued that the

removal of the children from their home was not clearly necessary. This

Court found that, based on the limited record before us, there was no clear

and convincing evidence that every reasonable effort had been made to keep

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the family together. Id. at 532-533. However, as set forth in In re: E.P.,

the focus under the Juvenile Act is currently on the well-being of the

dependent child, not on preserving family unity to the child’s detriment. In

re: E.P., 841 A.2d at 132-133. Moreover, the decision in Interest of

Feidler rested upon the specific facts in that case, which are distinguishable

from the facts herein. Thus, we find Interest of Feidler to be

unpersuasive.

Next, in In re: D.A., this Court reviewed a mother’s challenge to a

trial court order that adjudicated her infant daughter a dependent child

under the Juvenile Act and allowed the child to remain in the mother’s

physical custody. This Court found insufficient evidence to support the

dependency determination under section 6302(1) of the Juvenile Act. The

panel could not conclude that there was clear and convincing evidence that

the child was without proper parental care or control based on conduct of

the mother that placed the health, safety, or welfare of the child at risk.

Accordingly, the panel reversed the trial court’s dependency adjudication

order. In re: D.A., 801 A.2d at 622. We find the ruling in In re: D.A. to be

inapplicable to the instant appeal, as we are not reviewing an appeal from

an order adjudicating a child dependent. Rather, we are reviewing an order

that sets forth the disposition of a child previously found to be dependent.

Here, our review of the record reflects that, at the permanency review

hearing on December 29, 2014, Ms. Childs testified that Child was one and

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one-half years old and was living in Mother’s home with DHS supervision.

N.T., 12/29/14, at 6. Although Child was doing well, Ms. Childs expressed

concerns about Child’s developmental behavior and Child’s speech

development being delayed. Id. As a result, Ms. Childs stated that DHS

desired for Child to be evaluated. Id. Child had no other special needs or

services and was current on her medical immunizations. Id. at 6-7.

Ms. Childs further opined that it was inappropriate for Child to remain

in Mother’s home, as Mother was currently noncompliant with her Family

Service Plan (“FSP”) goal objectives. Id. at 7. At Ms. Childs’ most recent

visit to the home on December 16, 2014, Mother stated that she was going

to discontinue her drug and alcohol (“D & A”) program. Id. In addition,

Mother admitted to using marijuana. Id. While conducting a food

verification on that same date, Ms. Childs observed a box of wine in Mother’s

refrigerator and viewed alcohol bottles on the floor of Mother’s bedroom.

Id. Ms. Childs expressed that Mother’s use of alcohol and marijuana was

impairing Mother’s ability to parent Child and to render appropriate

supervision. Id. at 7-8. Also, DHS admitted into evidence a Clinical

Evaluation Unit (“CEU”) report dated December 18, 2014, which indicated

that Mother had not complied with the court’s recommendation to go to the

CEU for an assessment and that the CEU would like to have her back for an

assessment. Id. at 8; DHS Ex. 1.

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In addition to addressing drug and alcohol issues, Mother’s FSP goals

included obtaining and maintaining appropriate housing and stabilizing her

mental health. Id. at 8. Ms. Childs testified that Mother stated she was not

receiving therapy for her bipolar disorder diagnosis. Id. Ms. Childs

explained that Mother has to follow all recommendations, including taking

her prescribed medicine, in order to stabilize her mental health. Id. at 9.

Ms. Childs rated Mother’s level of compliance with her FSP objectives as

minimal. Id. DHS had placement ready for Child on the date of the

hearing. Id.

On cross-examination by the child advocate, Ms. Childs testified that

she had no knowledge of Mother taking any drugs other than marijuana. Id.

at 10. Ms. Childs testified that she had not directly observed any specific

instances where Mother was not correctly supervising Child. Id.

On cross-examination by Mother’s counsel, Ms. Childs stated that

Mother had self-reported smoking marijuana, but Ms. Childs had not

detected any odor of marijuana when she visited the home. Id. The

conditions of Mother’s home were suitable for children, and the children in

the home were current on their medical appointments. Id. Mother’s two

older boys live with Mother and are in school. Id. at 11.

Our review of the record also reflects that Mr. Norris Holland testified

that Tuesday, December 23, 2014, was the last time he visited Mother’s

home. Id. at 11. At the visit, Child was safe and her needs were being

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met. Id. However, Mr. Holland shared DHS’s concerns regarding Mother’s

use of drugs and alcohol. Id.

At the conclusion of the permanency review hearing, the trial court

stated the following:

Based upon the testimony presented in Court today I’m

following the Department[’]s recommendations.

No. Weed is not legal yet, and everybody wants to come

in and say: Oh, it’s okay. You can still smoke weed, drink and

watch your children. And that’s not working. No.

I wouldn’t be doing my job if I let a little baby stay at

home with [a] mom that admitted to smoking weed.

Yea, drinking, you’re right, drinking is not illegal, but,

when you take alcohol in a combination with drugs, well, that

presents a different situation.

So, if she’s not in drug and alcohol treatment and she’s not

doing her mental health, so, that combination is dangerous.

So, that’s what necessitates this.

The child is committed to the Department of Human

Services.

N.T., 12/29/14, at 15-16.

Moreover, in its written opinion, the trial court stated the following:

In the instant case, the DHS social worker testified that

[M]other was non-compliant with her FSP goal objectives. The

[c]ourt ordered [M]other to attend a drug and alcohol treatment

program. [M]other did enroll in the Gaudenzia drug and alcohol

program. Subsequently, [M]other left the Gaudenzia drug and

alcohol program and informed the DHS social worker that she

was not going to continue in the program. Furthermore,

[M]other admitted to the social worker that she was using

marijuana. Moreover, the social worker did a home inspection of

[Child’s] residence and observed a box of wine in [M]other’s

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refrigerator[,] as well as alcohol bottles on [M]other’s bedroom

floor. (N.T. 12/29/14, p. 7). Additionally, [M]other was ordered

to go to the CEU but failed to comply. (N.T. 12/29/14, p. 8).

Lastly, [M]other has untreated mental health issues. [M]other is

not receiving appropriate therapy for her mental health issues,

specifically her bipolar disorder. (N.T. 12/29/14, pgs. 8-9).

A court may not separate a child from a parent even if the

child has been adjudicated dependent unless the court finds that

the separation is clearly necessary for the well-being of the child.

A.N. v. A.N., 39 A.3d 326, 331 (Pa. Super. 2012). In the

instant case, the [t]rial [c]ourt found that the continuation of

[C]hild in the home would be contrary to the welfare, safety or

health of [C]hild. [M]other is not compliant with her drug and

alcohol treatment program. Furthermore, [M]other is refusing to

complete the drug and alcohol program. Moreover, [M]other is

continuing to use illegal drugs and drink alcohol. Lastly,

[M]other is not complying with her mental health therapy[.]

(N.T. 12/29/14, pg[.] 8, 9). The totality of the circumstances

necessitated the removal of [C]hild from [M]other. The safety of

[C]hild was at risk due to [M]other’s continued drug/alcohol

abuse and her untreated mental health issues.

The [t]rial [c]ourt made reasonable efforts to allow [C]hild

to remain in [M]other’s custody. The [c]ourt gave [M]other an

opportunity to participate in a drug and alcohol treatment

program while retaining custody of [C]hild. [M]other failed to

complete the drug and alcohol program[,] and tested positive for

illegal drugs[;] therefore, [C]hild was removed from [M]other’s

custody.

Conclusion:

For the preceding reasons, the [c]ourt finds sufficient

evidence to support the removal of [C]hild from the custody of

[M]other[,] and commit [C]hild to the care and custody of the

Department of Human Services. Furthermore, the court finds

that its ruling is in the best interest of [C]hild[,] as a result of

the testimony regarding [C]hild’s safety, protection, mental,

physical and moral welfare.

Accordingly, the [t]rial [c]ourt’s [o]rder entered on

December [2]9, 2014[,] committing [Child] to DHS[,] should

properly be affirmed.

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Trial Court Opinion, 3/10/15, at 3 (unpaginated).

After a careful review of the record, we find that the trial court’s

credibility and weight determinations are supported by the competent

evidence of record. Thus, we will not disturb them. In Interest of: L.Z.,

111 A.3d at 1174. We find that the trial court complied with the mandates

of the Juvenile Act in order to protect the best interests of Child in this

matter. Accordingly, we find no abuse of the trial court’s discretion.

Order affirmed.

Justice Fitzgerald joins the Memorandum.

Judge Mundy Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/2015

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