In the Int. of: N.D., Appeal of: N.D.

• Court: Superior Court of Pennsylvania
• Decided: September 22, 2020
• Docket: 450 EDA 2020
• Status: Unpublished

Opinion

J-A19026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: N.D., FATHER : : : : : No. 450 EDA 2020

Appeal from the Order Entered January 3, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0001606-2019

IN THE INTEREST OF: N.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: N.D., FATHER : : : : : No. 451 EDA 2020

Appeal from the Order Entered January 3, 2020 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0001607-2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 22, 2020

N.D. (“Father”) appeals from the order adjudicating as dependent his

two children, N.D. (“Child 1”) and N.D. (“Child 2”) (collectively, “Children”).

We conclude the trial court did not err in finding the Philadelphia Department

of Human Services (“DHS”) proved by clear and convincing evidence that

Children were dependent children. We therefore affirm. J-A19026-20

The trial court gave a full statement of the factual and procedural history

of this case, and we adopt it as our own. See Trial Court Opinion, filed Apr.

23, 2020, at 1-3, 4-6 (“1925(a) Op.”). We will give only a brief summary here.

Child 1 was born in February 2012 and Child 2 was born in March 2014. DHS

became involved with Children in October 2019 due to concerns that T.C.

(“Mother”) had an alcohol addiction and was unable to care for Children.

Father resided in Florida and had not seen Child 2 since 2015 and Child 1 since

2016. Although Father told DHS he was employed and had appropriate

housing, he did not present documentation to support these claims. DHS filed

the subject dependency petitions.

The court continued the dependency hearing on two occasions to

provide DHS an opportunity to explore whether Father could take custody of

Children. Following a January 3, 2020 hearing, the court adjudicated Children

dependent, finding DHS established by clear and convincing evidence that

Children were “without proper parental care or control, subsistence, education

as required by law, or other care or control necessary for [their] physical,

mental, or emotional health, or morals.” 42 Pa.C.S.A. § 6302. Children were

reunified with Mother at Mother’s treatment program. The court ordered that

Father was to have visitation with Children, and referred Father and Children

to Behavioral Health Services for consultation and/or evaluation for family

therapy. Father was also ordered to verify his employment, and DHS was to

inform Father of all medical and education appointments.

Father filed a timely notice of appeal. He raises the following issue:

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1. Did the trial court commit an error of law and/or abuse of discretion in finding that the [DHS] met its burden of presenting clear and convincing evidence of dependency as to . . . Father?

Father’s Br. at 4.

Father argues that DHS did not present clear and convincing evidence

that Children would be without proper parental care and control if they were

placed with him. Although he had not had contact with Children for several

years, he asserts that he “was ready, willing, and able to take on the role of

custodial parent when asked if he would do so by [DHS].” Father’s Br. at 10.

He maintains the court relied on hearsay in determining otherwise and that,

even with the hearsay, the evidence was insufficient to support a finding of

dependency. Id. at 13. He further claims that his prior lack of involvement

should not control, stating that “whether proper parental care and control is

immediately available does not turn on the historic contact between parent

and child.” Id. at 14. He notes that Child 1 resided with him for eight months

after Mother moved to Pennsylvania. He also claims that DHS failed to

investigate Father as a potential caretaker.

We review the grant of a dependency petition for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We “accept the findings of fact

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

record.” Id. However, we are not bound by the trial court’s “inferences or

conclusions of law.” Id.

The Juvenile Act defines a dependent child as a child “without proper

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

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care or control necessary for [the child’s] physical, mental or emotional health,

or morals.” 42 Pa.C.S.A. § 6302. The “burden of proof in a dependency

proceeding is on the petitioner to demonstrate by clear and convincing

evidence that a child meets [the] statutory definition of dependency.” In re

M.T., 101 A.3d 1163, 1173 (Pa.Super. 2014) (en banc) (quoting In re G.T.,

845 A.2d 870, 872 (Pa.Super. 2004)). Clear and convincing evidence is

defined as evidence 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 re A.B., 63 A.3d 345, 349 (Pa.Super.

2013) (quoting In re C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997)).

“[A] court cannot adjudge a child to be dependent when his non-

custodial parent is ready, willing, and able to provide the child with proper

parental care and control[.]” In the Int. of Justin S., 543 A.2d 1192, 1199

(Pa.Super. 1988). In In the Interest of Justin S., we concluded:

[I]t is the duty of the trial court to determine whether the noncustodial parent is capable and willing to render proper parental care and control prior to adjudicating a child dependent. If the court determines that the custodial parent is unable to provide proper parental care and control ‘‘at this moment’’ and that the non-custodial parent is ‘‘immediately available’’ to provide such care, the child is not dependent under the provisions of the Juvenile Act. Consequently, the court must grant custody of the allegedly dependent child to the non-custodial parent.

Id. at 1200.

In In re B.B., 745 A.2d 620 (Pa.Super. 1999), this Court affirmed an

order adjudicating children dependent over their father’s claim there was no

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evidence that he was not “immediately willing and able to provide the children

with proper parental care and control.” Id. at 622. We concluded the court did

not err, noting that the father had not been actively involved in the children’s

lives, and was “virtually [] a stranger” to the children. Id. at 623.

Here, the trial court adjudicated Children dependent. It concluded, “DHS

met its statutory burden by clear and convincing evidence regarding Children’s

dependency adjudication pursuant to paragraph (1) of the definition of

‘Dependent Child’ under 42 Pa.C.S.A. § 6302, and Father is not ready, able,

and willing to reunify with Children.” 1925(a) Op. at 7. It pointed out that

Father had not had contact with, or made attempts to contact, Children in at

least four years, and had not contacted authorities despite allegedly having

concerns about how Children were living. The court added that Children

wanted to live with Mother and that Child 1 wanted to visit with Father, but

not live with him. It noted that the court “went out of its way to continue the

adjudicatory hearing . . . to further allow Father to be explored, but Father

failed to cooperate fully with DHS by providing documentation and verification

of housing, payment of child support, employment, and the names and

personal information of individuals that live in his home in order to allow DHS

to obtain child abuse and criminal clearances.” Id. at 6.

After review of the briefs and the certified record, we have determined

that the opinion of the Common Pleas Court judge, the Honorable Joseph

Fernandes, ably and aptly disposes of Father’s arguments. We therefore affirm

on the basis of Judge Fernandes’s opinion. Id. at 3-7.

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In the argument section of his brief, Father argues an additional issue.

He claims that the testimony regarding allegations of abuse constituted

inadmissible hearsay evidence. However, he did not raise the issue in his Rule

1925(b) statement. He has therefore waived it for appellate review. Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2020

-6- Circulated 09/15/2020 08:49 AM

IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF PHILADELPHIA FAMILY COURT DIVISION r-:» t.:'t:::. f .......:,

In the Interest ofN.D., a.Minor CP�51-DP-OOO 1606-2019 v :c,..,, ";···-· ,.::r �-i·--- 1// c :r! ••V -,,::, N In the Interest ofN.D., a Minor CP-5 l-DP-0001607-2019 c. .- FID: 51-FN-001613-2019 v, - -·-· .•..·. .. .. •"1"

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APPEAL OF: N.D.,Father 450 EDA 2020 t:::; .c.-· 451 EDA2020 OPINION12

Fernandes, J.: Appellant N.D. (''Father'') appeals from the trial court's order entered on January 3, 2020, adjudicating N.D. ("Child 11') and N.D. ("Child 2'") (collectively "Children") dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. � 6302 "Dependent Child." Father's counsel, Meredith M. Rogers, Esquire, (·'Father·s Counsel"), filed a timely Notice of Appeal (vNortce") and Statement of Matters Complained of on Appeal pursuant to Rule I 925(b).("Statement of Errors") on February 2, 2020.

Factual.and Procedural Background: This family became involved with the Department of Human Services C'DHS") on October 11, 2019, when DHS received a General Protective Services ("GPS") report alleging that Children's Great Aunt was contacted on October 8, 2019. after Mother' was unable to be contacted regarding Child 1 's body odor at school, which was getting increasingly worse over time. The report further indicated that, Mother appeared at the school, denied any issues in the home, and entered into a physical altercation with Child 1 's teacher in the school office: Great Aunt and Maternal Grandmothervisitedthe school and indicated that they were concerned for Children's Well-being;

I The trial court requested the Notes of Testimony for January 3, 2020. on February 5, 2020, The trial court received the Notes of Testimony on February 18, 2020. ·2 On March 17, 2020, the First Judicial District of Pennsylvania (''F JD'') closed all FJD courts and related offices due

to public health concernsrelated to COVIo-·19. On March 19, 2020, the Supreme Court of Pennsylvania issued a11 order directing that all Pennsylvania courts are generally closed. Tb date, all Pennsylvania courts remain closed and are not.set to reopen until June I, 2020, at the earliest. · 5 Mother is not involved in this appeal. Pagel of8

------·------ _________ -.. ·-� · ---·--· -··-··· � .. Maternal Grandmother resided in Arizonabut traveled to Philadelphia on October 8, 2019, due to calls from neighbors regarding the poor condition of the family home where Mother and Children were residing; Mother was struggling with alcohol addiction; Mother refused to bathe herself or Children; Child 1 was functioning well in the classroom both academically and socially; Children were afraid to bathe in fear of upsetting Mother; and when Mother dropped off Child 1 at school on October 10, 2019, Mother appeared.intoxicated. This.report was validated. (N.T. 01/03/20, pg. 53). On that same day,DHS received a supplement to the GPS report, which alleged that Children were living in a deplorable home; Mother and Children were transient; the home was filthy and smelled of urine; the home had exposed wire hanging from the ceiling in the dining room; the bathroom sink was out of order and the shower was inoperable; there was trash all over the home; Children were unkempt; Child 1 was being bullied at school due to his body odor; Child 2 suffered from epilepsy and there was concern that she was not receiving medical treatment; Mother consumed alcohol all day and in the presence of Children; Children's siblings resided with other relatives; and Mother was unable to care for Children. 011 that same day, DHS visited the family home of record. When Mother answered the door; DHS observed that Mother was intoxicated. Mother subsequently refused to allow DHS into the home and become aggressive. DHS contacted the Philadelphia Police Department for assistance. DHS determined that the home was in deplorable and unlivable condition. DHS subsequently obtained an Order of Protective Custody ("OPC") for Children. Child I was placed with a maternal aunt and Child 2 was placed with a different maternal aunt. DHS conducted an interview of Child 1, who stated that he was bullied at school due to this body odor and dirty clothes.

On October I 1, 2019, Father contacted DHS via telephone. Father indicated that hewas underthe impression that Children were residing in Arizona with Maternal Grandmother. Father stated that he was in Jacksonville, Florida, and that he would travel to Philadelphia. Father did not disclose his address before ending the call.

On October 14.2019, a shelter care hearing was held for Children. Father was not present for this hearing. The trial court lifted the OPC and the temporary commitment to DHS was ordered to stand. The trial court ordered Father to attend supervised visitation with Children at the agency. On October 21, 2019, DHS filed dependency petitions for Children.

Page 2 of8 On January 3, 2020 an adjudicatory heating was held for Children} Father was present for this hearing. After all testimony was given, the trial. court found clear and convincing evidence to adjudicate Children dependentwith supervision on the finding of presentinability. The temporary commit was discharged and Children were reunified with Mother at Mother's treatment program. The trial court.ordered Father to attend visitation with Children for three hours, which can occur in the. community, and may be.modifiedbyagreement.ofthe parties.The trial court referred Father and Chi1dren to Behavioral Health Services ('"BHS'') for consultation and/or evaluation for family therapy, when Fatheris available by phone or is in town. The trial court ordered Father to provide verification of employment to CUA. DHS/CUA was ordered to assist Father with transportation and lodging, if necessary, for visitation. CUA was ordered to inform Father of all medical, dental, and educational appointments for Children and Father may attend these appointments in person or via telephone. On February 2, 2020, Father's Counsel filed this appeal on behalfof Father.

Discussion: On appeal,5 Father asserts: 1. The trial court committed an error of law and abuse of discretion when it found Children to be a Dependent Child by clear and convincing evidence as to Father.

Although Father has appealed the finding of Child 1 and Child 2 as a Dependent Child, Father has not appealed the trial court's determination regarding Children's placement with Mother with DHS supervision. This Opinion will only address the matter on appeal and will not address Children's placementwith Mother.

Father's first issue on appeal asked whether the trial court. erred in adjudicating Children dependent. A "Dependent Child" will be adjudicated dependent if the trial court determines, by clear and convincing evidence, that Child is without proper parental care or control, subsistence, education, as required by law; or other care or control necessary for Child's physical, mental, or emotional health, or morals. A determination that there is a lack-of proper parental care or control

4 Adjudicatory hearings were originally scheduled for Children on October 29, 2019, and November 25, 2019. The trial court granted a continuance on both dates for service; further investigation, and to allow the exploration of Father. 5 Father's Counsel filed two Notices, one for each child. However, the Statement of En-ors included with each Notice list the same en-ors. Page 3 of8

)� --------------· ------··--------·---·--------- �. .-.,_

may be based upon evidence of conduct by the parent guardian. or other custodian. Clear and convincing evidence has been defined as testimony by credible Witnesses who clearly relate facts that ate so clear, direct. weighty, and convincing as to enable the trier of fact to come to a clear conviction without hesitance of the truth of precise facts in issue.' In Interest ofJ M, l 66 A.3d 408, 427 (Pa; Super. 2017) (ciling li1 Re Novosiel.,;ki, 992 A.2d 89, 107 (Pa.2010)). In orderto determine whether a child is lacking the proper parental care and control encompasses two questions: "1) ls

the child 'at this moment without proper care or control"; 2) If so, is such care and control 'immediately available?" In Interest o(Justin S., 543 A.2d 1192, 1198 {Pa. Super. 1988). The purpose of the Juvenile Act is to preserve the unity of the family whenever possible. 42 Pa.C.S.A. §630l(b)(l). Nonetheless, a child will be .adjudicated dependent when the child is presently without proper parental care and the care is not immediately available. In re R. T., 592 A.2d 55, 57 (Pa. Super. 1991) (citing In Re Lakue. 366 A.2d 1271 (Pa. Super. 1976)}. Superior Court has defined proper parental care as the care which is geared to the-particularized needs of the child and, at a minimum, is likely to prevent serious injury to the child, In t·e C.R. S., 696 A.2d 840, 843 (Pa. Super. 1997) (citing In Interest of Justin S., 543 A.2d 1192, 1200 (Pa. Super. 1988)). The burden of proof in a dependency proceeding is on the petitioner. bi re C.R.8., supra at 842-843.

It was established from the testimony that DHS became involved in this case when OHS received a GPS6 report alleging substance abuse as to Mother. (N.T. 01/03/20, pg. 11}. As part of the investigation, DRS spoke with Father at the courthouse on November 25, 2019. (N.T. 01/03/20, pg, 17). Father currently resides in Jacksonville, Florida, (N.T. Oi/03/10, pg. 30). Father indicated to DHS that he had not seen Children for at least four years prior to DHS involvement. (N.T. 01/03/20, pgs. 17-18, 21, 93). Father had not had any contact with Child 2 since Mother left Florida for Philadelphia with Children in approximately 2015. Father had not seen Child l since Child 1 briefly returned to. Florida to reside. with Father for approximately eight months after Mother moved to Philadelphia. (N.T. 01/03/20, pgs. 17, 34, 86, 92, 117). Father also indicated that he had not made any attempts to visit Children since he last saw them in Florida at least four years ago. (N. T. 01/03/20, pgs. 17� 18, 21): Father claimed that he didn't attempt to visit Children because he did not know where they were living, although he was aware that Children were living in

<, OHS indicated that the report was a Child Protective Services ("CPS") report, but for the rest of the trial, alt partles refer to the report as a dPS report.(N.T.01/03/20, pgs. 11, 29, 44, 53, 72. 122). Page4 of 8 Philadelphia with Mother. (N.T. 01/03/20, pgs. 21; 49). Father admitted that even though he did not hear from Children for years and had concerns about how Children were living, Father did not make any outreach to police or the Philadelphia courts. Father claimed that he once visited a courthouse in Florida to try and obtain custody of Children. (N.T. 01/03/20, pgs. 21, 99-101). When DHS spoke with Father, Father indicated that he is employed and has housing in Florida, although Father has not provided any verification of his employment. Additionally, although Father has provided a copy of his lease to DHS, the two other individuals listed on Father's lease have not received security clearances. (N.T. 01/03/20, pgs. 32, 51, 52, 66, 67). Father claimed that the individuals listed on the lease are a niece mid nephew that do not actually reside in the home, but instead visit on occasion: because it helped him obtain the apartment. (N.T. 01/03/20,, pgs. 94- 95). Father claimed that he had documentation verifying his employment and child support payments but failed to bring the documentation to the courtroom from his car. (N.T. 01/03/20, pgs. l 02:- 103). Child 1 was seven-years-old and Chiid 2 was six-years-old at the time of the adjudicatory hearing. (N.T. 01/0,3/20, pg. 127). Children indicated to DHS that they want to reside with Mother. Child 1 also indicated that he did not want to reside with Father, although Chilo 1 does want to visit with Father. (N.T. 01/03/20, pgs. 28, 33�34). Child 1 indicated to DHS that he was tearful of living with Father because the last thing that Child l remembers from living with Father was when Father's paramour instructed Father to give Child 1 a "beating" due to a broken ashtray. DHS determined Child l's statements constituted a safety threat, (N.T. 01/03/20, pgs. 26- 28). After the hearing on November 25, 2019, Father and Children attended one supervised visit. OHS indicated that when Children first saw Father, Children did not recognize him. (N.T. Ol/03/20. PS· 52). Child l lut,n h1dicat-cd he had ··u little:· 1ncn'l�1�y <:>1' Fath,;:r, (N.·i-. 01/03120, Po· 53). Father claimed that Child 1 was happy to see Father atthe visit and asked Father not to leave at the end of the visit. (N.T. 01/03/20, pgs. 107-l 08). Attrial, Child l's resource parent ("Resoiirce Parent P') indicated that Father did not visit nor make any outreach to Child 1 since the hearing on November 25, 2019. DHS also indicated that Child 2 stated that she had not had recent contact with Father, although Child 2's resource parent ("Resource Parent 2'') stated that Child 2 and Father are in contact daily. (N.T. Ol/03/20, pgs. 36-37, 73). Child2 experiences seizures and takes medication to regulate seizures, which makes Child 2 medically needy. (N.T. Ol/03/20, pgs. 44, 46). At the time Child 2 came into D HS care, Child 2 was not medically up-to-date. (N. T. 01 /03/20, pg. 42). Resource Parent 2 indicated that Child 2 had a scheduled appointment with a neurologist Page 5 of8

�-·------·-·--- regarding her seizures at a Philadelphia hospital in January 2020. (N.T. 01/03/20, pg. 44). Father has not attended any medical appointments for Child 2, although he has been in contact with her doctor. (N.'T. 01/03/20, pg. 80). Based on the testimony at the January 3, 2020 adjudicatory hearing, the trial court found clear and convincing evidence to adjudicate Children dependent based on present inability. DHS witnesses were credible. The trial court found that Children lacked proper parental care and control. While Children were in Mother's care, Mother was abusing substances and Father was not involved in Children's lives for several years. (N.T. 01/03/20, pgs.

17-18, 21, 34, 86, 92-93, 117). Father did not return to Children's lives until Children were removed from Mother's care. The record established that Father was aware Children were living with Mother with concerns whether their needs werebeingmet by Mother but made no attempt to contact that authorities; (N.T. 01/03/20, pgs. 17-18, 21, 49). Thetrial court went out of its way to continue the adjudicatory hearing on October 29, 2019, and November 25, 2019, to further allow Father to be explored, but Father failed to cooperate fully with DHS by providing documentation and verification of housing, payment of child support, employment, and the names and personal information of individuals that live in his home in order to allow DHS to obtain child abuse and criminal clearances from the Florida Children and Youth Agency. (N.T. Ol/03/20, pgs. 32, 49-52, 66-68, I 02-103). Father has had the opportunity over a period of two months to present himself as a ready, willing, and able parent for Children, but has failed to do so. Father failed to establish that he has a safe and stable home and stable income for Children; and that he can provide for Children's needs, especially the medical needs of Child 2, after failing to participate in Children's lives for the last several years. Children have little memory ofFather and did recognize Father at their first and oi"lly supervised visit Father uvui'l_c_d h.in"lsell' to at'cer Cl)ildren co rrre into DHS legal

custody. (N.T. 01/03/20, pgs, 52-53). Both Childrenhave stated that they want to live with Mother. (N.T. 01/03/20, pg, 28). DHS met their burden and Father failed to establish that he was able to provide Children with the proper parental care and control at this time. The record also established that Father had been abusive to Mother when Mother, in the past, lived with Father in Florida. Due to the domestic violence in the relationship, Mother moved to Pennsylvania. (N.T. 01/03/20, pgs. 29, 111-112, 119). Furthermore, Mother further testified that Father used substances such as marijuana and alcohol in front of her and Children. The trial court found Mother to be credible. {N.T. 01/03/20, pg. 112). Consequently, the trial court found it to be in Children's best interests not to be reunified with Father. It's Father's burden under the current law to show that he is ready, Page 6 or s

... able, and willing to parent. In Interest of' .fztsfin S, 543 A.2d 1192; 1200 (Pa. Super, 1988), Therefore; the trial court did not e1T or abuse its discretion in finding Children dependent.

Conclusion: For the aforementioned reasons, the court properly found that DHS met its statutory burden by clear and convincing evidence regarding Children's dependency adjudication pursuant to paragraph ( 1) of the definition of "Dependent Child"' under 42 Pa.C.S.A. *6302, and Father is not ready, able, and willing to reunify with Children. Accordingly, the order entered by the trial court on January 3, 2020, adjudicating Children dependent should be affirmed.

By the court,

I

Page 7 of8

""'....---�------�----- ""''· ----·--·---·--- --·----- IN THE COURT OF COM.MON PLEAS FOR THE COUNTY OF PHILADELPHIA FAMILY COURT DIVISION

In the Interest ofN.D., a Minor CP-51-DP-0001606-2019

In the Interest of N.D., a Minor CP-5l-DP-0001607-2019

FID: 51-FN-000145-2019

APPEAL OF: N.D .. Father 450 EDA 2020 451 EDA 2020

CERTIFICATE OF SERVICE I hereby certify that this court is serving a copy of this duly executed Opinion upon all parties or their counsel on April 23, 2020. The names and addresses of allpersons served are as follows:

Courtney McGinn, Esq. Meredith M. Rogers, Esq. City of Philadelphia Law Department 5213 Knox Street 1515 Arch Street Philadelphia, Pennsylvania 19144 Philadelphia, Pennsylvania 19102 Attorney for Father Attorney for DHS

Adrienne Box, Esq. Gary Server, Esq. Defender Association of Philadelphia 52103 Delaire Landing 1441 Sansom Street, 9111 Floor Philadelphia, Pennsylvania 19114 Philadelphia, Pennsylvania .19102 Attorney for Mother Child Advocate ........ -�;

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Ariel J. Bruce Law Clerk to the Hon. Joseph L. Fernandes First Judicial District.of Pennsylvania Family Division 1501 Arch St., Room 143 l. Philadelphia, Pa. 19102 T: (215) 686-2660 ! F: (215) 686-4224

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