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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
-2- 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
-7- Circulated 07/31/2025 Circulated 07/31/2025 01.36 01:36 01.36 PM PM
.. _-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