In the Int. of: J.W., Appeal of: L.B.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2021
• Docket: 1033 EDA 2021
• Status: Unpublished

Opinion

J-S28033-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: L.B., MOTHER : : : : : No. 1033 EDA 2021

Appeal from the Order Entered May 21, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002296-2014

IN THE INTEREST OF: T.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: L.B., MOTHER : : : : : No. 1034 EDA 2021

Appeal from the Order Entered May 21, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0116129-2008

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 27, 2021

In these consolidated appeals, L.B. (Mother) seeks review of two orders

of the Court of Common Pleas of Philadelphia County (trial court). In the first

order, the child, T.H. (age 14), was adjudicated dependent. In the second

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* Retired Senior Judge assigned to the Superior Court. J-S28033-21

order, the child, J.W. (age 8), was found not dependent and transferred to the

custody of the child’s father, L.W. Both orders are affirmed.

I.

The following facts are taken from the certified record. On December

16, 2020, the Department of Human Services (DHS) received a General

Protective Services (GPS) report concerning Mother’s inability to care for the

two children. The report alleged that Mother had serious substance abuse

issues that made it impossible for Mother to provide adequate supervision. It

was also alleged that the children were often left alone, and that Mother had

become mentally unstable, resulting in visits to the Emergency Room on two

consecutive days. She was screened for drugs during both visits and each

time tested positive for the controlled substance, phencyclidine (PCP). DHS

investigated the allegations and the children were placed under an Order of

Protective Custody.

While the investigation was pending, Mother refused to give DHS access

to the children or her home. In response, DHS obtained an Order of Protective

Custody, and with the assistance of police, DHS staff entered Mother’s home

to retrieve both children and transfer them to the custody of their maternal

grandfather.

The trial court held an adjudicatory on hearing on May 21, 2021. At the

hearing, Santa Pratt, a DHS Investigative Social Worker, described her

observations. She testified that she had gone to Mother's home to inquire

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about the allegations in the GPS report. According to Pratt, Mother admitted

during the visit that she had recently used PCP, and it appeared to Pratt that

Mother was under the influence of a controlled substance. In fact, Mother

admitted to Pratt that she had suffered from substance abuse issues for the

past ten years.

Another component of Pratt’s investigation concerned Mother’s

supervision of the children. T.H.’s school records indicated that the child had

17 unexcused absences and 27 tardy appearances in the three months

preceding the GPS report. J.W.’s school records could not be obtained.

Finally, Pratt investigated the children’s respective fathers, neither of

whom is a party in these consolidated appeals. T.H.’s father informed Pratt

that he was aware of Mother's substance abuse issues. However, T.H.’s father

did not seek custody of his child because he lacked appropriate housing.

Chante Waller, a social worker with the Community Umbrella Agency,

also testified at the hearing. She explained that T.H.’s school attendance

improved after being placed with the child’s maternal grandfather. Waller

testified that Mother had entered a drug and alcohol program and made

significant progress, as indicated by numerous negative drug screens in the

four months preceding the hearing. However, Waller was still concerned about

Mother’s potential to relapse and opined that Mother needed to continue

progressing with her treatment before she would be ready to care for the

children on her own.

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Waller noted that T.H. wished to return home with Mother. However,

given the child’s age and Mother’s long history of substance abuse, Waller

believed that T.H. should return home only upon Mother’s completion of her

treatment program. Waller recommended that in the meantime, T.H. should

remain in her maternal grandfather’s care, with Mother receiving supervised

visitation.

As to J.W., Waller testified that she was able to contact J.W.’s father,

who had previously been granted full custody of J.W. through dependency

court in 2015 due to Mother’s substance abuse. J.W.’s father explained to

Waller that Mother had refused to return the child after a supervised visit.

J.W.’s father showed Waller three police reports documenting his failed

attempts to pick up J.W. from her grandfather’s home. On each of those

occasions, Mother prevented him from taking the child.

Waller stated that J.W.’s father has an appropriate home and that he is

currently employed. More importantly, Waller testified that J.W.’s father is

ready, willing and able to act as parent. J.W.’s father appeared at the hearing

and informed the trial court of his desire to take custody of J.W. In response,

Mother testified at the hearing that J.W. would not be safe in J.W.’s father’s

care because he would often be left alone with J.W.’s father’s girlfriend, who

purportedly abused him.

At the conclusion of the hearing, the trial court adjudicated T.H.

dependent pursuant to the Juvenile Act. The trial court found that clear and

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convincing evidence established Mother’s inability to care for the child, as well

as T.H.’s truancy. The trial court ruled that removing T.H. from Mother’s care

was in the child’s best interest, and full custody of the child was granted to

DHS. Although T.H.’s father was directed to complete a housing program, he

was granted liberal visitation; Mother was granted supervised line-of-sight

The second child, J.W., was adjudicated not dependent, but the child’s

father was granted full custody based on the evidence of dependency. Mother

was also ordered to submit to continued drug screens, participate in an

evaluation and complete parenting classes.

Mother timely appealed the two orders concerning each respective

child.1

II.

A.

With regard to J.W., Mother argues that the trial court erred because

the evidence of dependency was insufficient and custody of the child could not

1 Mother and the trial court complied with Pa.R.A.P 1925. The trial court also submitted a 1925(a) opinion outlining its factual findings and legal conclusions. See Trial Court Opinion, 6/23/2021, at 6-10. DHS submitted an appellate brief as to both orders. Moreover, the guardian ad litum submitted a brief on behalf of the two minor children.

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be awarded to the father because Mother’s dependency issues were resolved

at the time of the adjudicatory hearing.2

Under the Juvenile Act, a child may be removed from the custody of a

parent if a trial court finds by clear and convincing evidence that the child is

“dependent.” See 42 Pa.C.S. § 6302. However, the trial court may grant

custody of a non-dependent child to a non-custodial parent without such a

finding if there is “sufficient evidence of dependency.” See In the Interest

of J.B., 247 A.3d 447, 453 (Pa. Super. 2021) (citing In the Interest of J.S.,

543 A.2d 1192, 1199 (Pa. Super. 1988)). Before custody may be transferred

in this manner, the trial court must find that the custodial parent is presently

unable to provide proper parental care and that the non-custodial parent is

“immediately available” to provide such care. See In re M.L., 757 A.2d 849,

851 (Pa. 2000); In the Interest of J.S., 543 A.2d at 1200.

Here, the trial court did not err in restoring custody of J.W. to his father.

There was abundant evidence that Mother was unable to care for J.W. at the

time of the adjudicatory hearing. It is undisputed that Mother has long

suffered from substance abuse issues, as well as mental health issues. In

fact, the trial court had already granted custody of the J.W. to his father in

2015 due to those same circumstances. Mother only had custody of the child

2 In dependency cases, the reviewing court must accept the trial court’s findings of fact and credibility determinations if they are supported by the record. See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). The trial court’s conclusions of law are reviewed de novo.

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by repeatedly thwarting that court order and preventing J.W.’s father from

taking the child to his home. While Mother certainly made strides in dealing

with her substance abuse and mental health issues, there was credible

evidence that, at the time of the hearing, she was not ready to assume full

care and control over the child.

On the other hand, there was credible evidence regarding the ability of

J.W.’s father to serve as a parent. It was established that J.W.’s father has

an appropriate home and that he is employed. It is also significant that J.W.’s

father is both willing and able to resume his parental role. Thus, the evidence

was sufficient to justify the transfer of custody despite the finding of non-

dependency, and the order must, therefore, stand.

B.

As to the appeal concerning T.H., Mother contends that there was not

clear and convincing evidence to justify an adjudication of dependency, that

it was not in the child’s best interests to be removed from her custody, and

that the circumstances leading to the removal of the child from her care had

been resolved by the time of the adjudicatory hearing.

A trial court’s determination of a child’s dependency is governed by the

Juvenile Act. See In re E.B., 83 A.3d 426, 431 (Pa. Super. 2013); 42 Pa.C.S.

§ 6351(a). When adjudicating a child dependent pursuant to the Juvenile Act,

the trial court is required to make the following factual findings:

(1) that continuation of the child in his home would be contrary to the welfare, safety or health of the child; and

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(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[.]

42 Pa.C.S. § 6351(b). “[T]he child’s proper placement turns on what is in the

child’s best interest, not on what the parent wants or which goals the parent

has achieved.” In re J.J., 69 A.3d 724, 732 (Pa. Super. 2013).

The Juvenile Act defines a “dependent child” in pertinent part as a child

who:

(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent’s, guardian’s or other custodian’s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk;

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(5) while subject to compulsory school attendance is habitually and without justification truant from school[.]

42 Pa.C.S. § 6302 (enumerating definition of a “dependent child”). An

adjudication of dependency under either of these two provisions must be

supported by clear and convincing evidence. See In re G.T., 845 A.2d 870,

827 (Pa. Super. 2004).

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Here, the record supports the trial court’s determination that T.H. lacked

proper care and control, and that Mother could not provide her with that care.

On December 16, 2020, DHS discovered that Mother had tested positive for

PCP on the two consecutive days in which she had been hospitalized. Mother

has admitted to a ten-year history of dealing with substance-related issues.

There was credible evidence that, as of the time of the adjudicatory hearing a

few months after the two hospitalizations, Mother remained unable to provide

T.H. with proper parental care and control.

Additionally, the record supports the trial court’s determination that T.H.

was truant. The Juvenile Act’s definition of truancy is met where there is

“clear and convincing evidence of three distinct facts, that is, that the child is

(1) subject to compulsory school attendance and (2) habitually truant (3)

without justification.” In re C.M.T., 861 A.2d 348, 353-54 (Pa. Super. 2004).

Children are subject to compulsory school attendance from the age of

six to eighteen; a child is considered habitually truant if they miss six or more

school days in a single school year and those absences are not justified. See

24 P.S. §13-1326. An absence lacks justification if there is “testimony and

school attendance records to establish that no excuse was received by the

school[.] Upon introduction of such evidence, an inference arises that the

absence in question is unjustified, at which point the parent or minor child

may proceed to rebut the presumption.” In re C.M.T., 861 A.2d at 354.

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In the present case, it is undisputed that T.H. was subject to compulsory

school attendance because she was 14 years old at the time of the

adjudicatory hearing. Nor was it disputed that T.H. had accumulated well over

six unexcused absences from school while in Mother’s care. She was also

routinely tardy, and Mother offered no justification at the hearing for the

child’s poor attendance record. The presumption of truancy, therefore,

applied, see C.M.T., 861 A.2d at 354, and the trial court did not err in

adjudicating T.H. dependent on that ground.

The record supports the trial court’s finding that removing T.H. from

Mother’s care was in the child’s best interests. See Trial Court Opinion,

6/23/2021, at 9-10. The trial court cited Mother’s erratic behavior after the

GPS order was entered, requiring DHS to remove the children by force.

Further, and as Mother admits, she has continued to receive treatment for

substance abuse throughout the proceedings. These circumstances show that

the removal was necessary for the welfare of the child, despite the reasonable

efforts of DHS to eliminate the need for that removal.

Accordingly, for all of the reasons outlined above, the trial court’s orders

as to both J.W. and T.H. are affirmed.

Orders affirmed.

Judge Bowes joins the memorandum.

Judge Dubow did not participate in the consideration or decision of this

case.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2021

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