In Re MW

842 A.2d 425
CourtSuperior Court of Pennsylvania
DecidedJanuary 22, 2004
StatusPublished
Cited by1 cases

This text of 842 A.2d 425 (In Re MW) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MW, 842 A.2d 425 (Pa. Ct. App. 2004).

Opinion

842 A.2d 425 (2004)

In re: W.,M.; W.,R.; W.,R.; W.,D.; and W.,D., Minors.
Appeal of: W.,T., Mother.

Superior Court of Pennsylvania.

Argued October 30, 2003.
Filed January 22, 2004.

*426 Sharon M. Biasca, Pittsburgh, for appellant.

Elisabeth Calcaterra, Pittsburgh, for appellees.

Wendy Kobee, Pittsburgh, for Children and Youth Services of Allegheny County, appellee.

Before: FORD ELLIOTT, MUSMANNO, and LALLY-GREEN, JJ.

LALLY-GREEN, J.

¶ 1 Appellant, T.W., appeals from the orders entered on March 19, 2003, adjudicating five of her six children dependent. The children at issue are R.W., d.o.b. 2/25/91; D.W., d.o.b. 1/25/95; D.W., d.o.b. 10/17/97; M.W., d.o.b. 2/23/2000; and R.W., d.o.b. 3/4/2002 (the "children"). The children were adjudicated dependent after the court determined that Appellant had permitted the children's father to have *427 continued contact with the children after learning that the father had sexually abused Appellant's sixth child, R.W., who is not at issue in this appeal.[1] We affirm.

¶ 2 The trial court set forth the factual and procedural history of the case as follows:

On February 21, 2003 a shelter hearing was held in the interest of twelve-year-old R.W. (who is not a subject of this appeal) and [the children]. Appellant, T.W., is the natural mother of all six children. The circumstances that led to the removal of the children were that the oldest child, R.W., disclosed that natural father had sexually abused her on more than one occasion, that the abuse began when she was five or six years old, that she had reported the abuse to her mother and that after she reported the abuse mother permitted father to return to the family home. Although the other children had not disclosed any abuse by their father, there were safety concerns because of mother's failure to protect R.W. At the conclusion of the shelter hearing this court ordered the children to remain in placement and ordered Children Youth and Family Services (CYF) to file petitions for dependency for all the children.
A hearing on the petitions for dependency was held on March 12, 2003. CYF alleged in the petitions that R.W. had been sexually abused by her father during a six or seven year period of time and that Appellant was aware of the abuse. CYF further alleged that after Appellant became aware of the abuse that she allowed natural father to return to the family home and allowed him to have contact with her children, putting them at risk. At the conclusion of the testimony on March 12, 2003, this court found by clear and convincing evidence, that R.W. was dependent. As to the remaining children, this court continued the hearing until forensic evaluations were available for the court's review. The matter was continued until March 19, 2003.
On March 19, 2003, additional evidence was presented to this court. After considering all of the testimony and evidence, this court found clear and convincing evidence that the remaining children were dependent due to mother's failure to protect the children by allowing father to care for the children after learning of the sexual abuse of R.W. by father. However, the court considered the emotional devastation of all six children in being separated from their mother and each other and found it to be in the best interest of the children to return them to Appellant's care with intensive in-home services. Appellant was also ordered to participate in non-offenders sexual counseling.

Trial Court Opinion, 5/19/2003, at 1-2. This appeal followed.[2]

¶ 3 Appellant raises one issue on appeal:

Did the trial court abuse its discretion and err as a matter of law in finding sufficient evidence of dependency and adjudicating Children dependent pursuant *428 to the Juvenile Act, 42 Pa.C.S. § 6301 et seq.?

Appellant's Brief at 4.

¶ 4 Our scope and standard of review is as follows:

In dependency proceedings our [scope] of review is broad. Nevertheless, we will accept those factual findings of the trial court that are supported by the record because the trial judge is in the best position to observe the witnesses and evaluate their credibility. We accord great weight to the trial judge's credibility determinations. Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate.

In re S.J.L., 2003 PA Super 168, P14, [828 A.2d 352, 355]2003 Pa.Super. LEXIS 876, *8-9 (Pa.Super. April 29, 2003), (internal quotations and citations omitted.)

'A court is empowered by 42 Pa.C.S. § 6341 [Adjudication] (a) [General rule] and (c) [Finding of dependency] to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. [...]

In re D.A., 2002 PA Super 184, 801 A.2d 614, 617 (Pa.Super.2002) (en banc), quoting In re M.L., 562 Pa. 646, 649, 757 A.2d 849, 850-851 (2000).

In the Interest of S.B., 2003 PA Super 286, ¶ 3, 833 A.2d 1116 (footnote omitted).

¶ 5 First, Appellant argues that the trial court erred in finding that the children were placed at risk when Appellant allowed the father to continue to have unsupervised contact with the children. Specifically, Appellant argues that the only child placed at risk by this situation was R.W., the abused child. Appellant contends that because the court heard no evidence that father had abused or would abuse the remaining children, those children cannot be considered "at risk."

¶ 6 A "dependent child" is defined, in relevant 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, guardian, or other custodian that places the health, safety or welfare of the child at risk[.]" 42 Pa.C.S.A. § 6302. "The question of whether a child is lacking proper parental care and control so as to be a dependent child encompasses two discrete questions: whether the child presently is without proper care and control, and if so, whether such care and control are immediately available." In re D.A., 801 A.2d at 619.

¶ 7 This Court addressed a substantially similar issue in S.B., supra. In that case, the father had sexually abused one sibling, but there was no evidence that he had sexually abused the other child. The court found both children dependent. The parents, like Appellant here, argued that a finding of sexual abuse as to one child should not translate into a finding of dependency as to other children. The S.B. Court disagreed. The Court responded that, beginning in 1997, federal and state law has taken an expanded view as to who may be considered a dependent child. Specifically, the Court noted that the Juvenile Act has been amended to take notice of "aggravating circumstances," which include a finding that a sibling in the home *429

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Bluebook (online)
842 A.2d 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mw-pasuperct-2004.